Formal and Material Torts

Discussing formal and material torts is related to an “act” itself. That in carrying out an act there will be an action and also consequences that will be obtained/occur. To make it easier to understand, a formal tort is a tort that focuses on the action, while a material tort is a tort that focuses on the consequences. An example of a formal tort is found in Article 362 of the Criminal Code concerning theft.

For example, if someone is known to have taken someone else's cellphone, but because the act is known by the owner, then the person does not take the cellphone, then the person still fulfills the element of theft, because the act of theft is formulated formally which focuses more on the action. Meanwhile, an example of a material tort is found in Article 338 of the Criminal Code concerning Murder.

For example, A intentionally intends to kill B by shooting from a distance, then A fires his bullet at B, but it turns out that it hits his hand and B is rushed to the hospital and declared not dead. Because Article 338 is formulated materially which focuses on the consequences, then A cannot be said to have killed B, because his actions did not cause B to die, A is only said to have attempted murder.