Liability for damages means that degree of freedom of will which causes responsibility for unlawful acts.

Responsibility in business is dealt with in § 105 sec. 2 of the Civil Code: -

A declaratory act or transaction is also invalid if effected while in a state of loss of consciousness or of temporary disturbance of mental activity.

According to Bentivegni, a state of hypnotic suggestibility is enough to exclude responsibility in business; but this certainly pre-supposes a certain depth of hypnosis. Bentivegni also points out that not only such acts as are carried out through hypnotic suggestion are invalid, but that the mere existence of hypnotic suggestibility is enough under some circumstances to exclude business responsibility, even when the acts are not suggested.

Bentivegni thinks the same about many post-hypnotic states in which anything of the nature of a post-hypnotic suggestion is carried out. Here he makes several distinctions. All transactions are invalid which are effected in a post-hypnotic state in which there is renewed suggestibility. We may certainly agree with this by reason of § 105 sec. 2 of the Civil Code. Also, according to Bentivegni, the state during the carrying out of a post-hypnotic suggestion, if it is united with forgetfulness of the post-hypnotic act, excludes responsibility, provided the state shows no signs of suggestibility. Certainly there are distinctions to be made here. We saw (p. 166) that a person may be apparently awake and yet carry out a posthypnotic suggestion without remarking it, without falling into a new hypnosis,, and calmly talking meanwhile. Whether such post-hypnotic suggestions affect business responsibility is decided by Bentivegni according to the nature of the suggestion. When the post-hypnotic suggestion is merely a movement or action, which the subject often does automatically at other times, there is no reason to question the responsibility. There are people who have a habit of scribbling on paper.

Now, according to Bentivegni, if a person does this post-hypnotically he is not unfit for business. But he is unfit when he does post-hypnotically what he would not do under normal circumstances. Bentivegni thinks that when the post-hypnotic act is done without renewed suggestibility and without loss of memory, the question becomes very difficult. He thinks that in such a case all depends on the nature of the suggestion. Are the suggested acts, and their possible motives, of such a nature as to be willingly received into the consciousness of the subject and to be generally compatible with the context of his consciousness, or not? Bentivegni gives the two following examples: - 1. A. owes B. £25, but has forgotten it; in hypnosis he is told to pay B. the money at the first opportunity, which he does post-hypnotically. 2. C, who is not in good circumstances, is told in hypnosis to make a present of his whole personal property to D., whom he does not like. He wakes, and the idea occurs to him when he sees D.; he resists at first, but finally formally obeys the order.

According to Bentivegni, in example 1. neither responsibility for the particular act nor the capacity for business in general need be doubted, because the suggestion was acceptable to the motives pre-existing in the subject's consciousness. But in example 2. there is a difference; here there must be a revolution in the subject's consciousness before he will obey a suggestion so contrary to his interests. Therefore, Bentivegni thinks the responsibility is doubtful, at least as far as the single act is concerned.

In other cases the business incapacity is much more extensive, because delusive ideas may be post-hypnotically suggested, which may cause incapacity for business so long as they last, in the same way as do the delusions of the insane. Bentivegni thinks it should be provisionally supposed that a subject who is under the influence of a post-hypnotically suggested idea must be considered unfit for business when this idea is of such a kind that its spontaneous recurrence would partially or wholly do away with his responsibility.

Finally, besides the posthypnotic suggestions which do not interfere with consciousness, and those which alter consciousness, as insane ideas do, Bentivegni discusses a third category of suggestions. For example, a subject might be told in hypnosis that a particular engraving was an oil-painting. In such a case the error, the inability to perceive the real facts, would have to be considered from the legal point of view - i.e., as laid down in §119 of the Civil Code, which allows the validity of a statement to be disputed by the person who made it, if there be a presumption that he did so when he was not fully aware of the nature of the case. It is also possible that § 123, which deals with intentional malicious deception, might apply.

But, as a general rule, the objection in such a case would have to be based on the above-mentioned § 105 sec. 2 of the Civil Code. Only, let it be remembered, this clause of the law must be intelligently interpreted. For even if it only treats in a general way of a state of unconsciousness or of disturbance of the mental activity, and not of one that excludes free volition, we must remember - and this is a point referred to by the most different interpreters of the law - its provisions must be considered in conjunction with other laws bearing on the question, and consequently an infinitesimal disturbance of the mental activity, such as may, indeed, be brought about by post-hypnotic suggestion or some other occurrence, does not straightway render a declaratory act void.

Besides capacity for business, Bentivegni discusses liability for damages. This implies an illegal act committed in a responsible state, for which the civil law prescribes indemnification. But § 827 of the Civil Code states: -

A person who in a state of unconsciousness or in a state of morbid disturbance of mental activity that precludes free volition causes injury to another, is not responsible for the injury. Should the person have placed himself temporarily in a state of this nature by the use of spirituous drinks or similar means, then he is responsible for any damage done by him while in this state, as he would be for an act of negligence; there is no responsibility when the state was not of his own creating.