Doubt II: On the indirect causes of loss

THERE FOLLOW three others, namely the Silent one. He is called silent who ought to have spoken in order to prevent the damage. He can be bound either by office, as a Prelate, or by contract. I shall treat of these in the doubts below.

The SECOND is the Non-obstructor, when he ought to have obstructed, as Prince, Magistrate, and the like.

The THIRD is the Non-discloser of the one causing damage, when he was bound, as a witness in court, keepers of vineyards, woods, etc. Many doubts are raised about these.

TANNERUS disp. 4. quaest. 6. dub. 2. num. 72. requires three conditions for these persons to be bound to restitution. The first is that he was bound to procure such a good, or ward off such an evil, by a debt of Commutative or Distributive Justice. The second is that he was bound to procure it for that very person who has been damaged, whose cause he ought to have pleaded. The third is that the procuring of such a good was deliberately omitted, or omitted with proportionate fault. From this doctrine innumerable cases are resolved. See also Vasquez prim. 2. disp. 175. Lessius Lib. II. cap. 12. disput. 10. et 18.

WHETHER, THEREFORE, he who is the indirect cause of damage by not obstructing it, when he can and ought, is bound to restitution; many assert universally. So Angelus, and Cajetan in the summa, under the word Restitutio, Richard in 4. dist. 15. art. 5. quaest. 4. Valencia also, at the place cited, judges it probable.

OTHERS, however, as reported by Valencia, say he is bound only when he could and ought to have obstructed it out of justice; for instance, because he was Praetor, etc. So it seems D. Bonaventure holds in the Speculum, cap. 1. under the word Damnificatio, Sylvester V. Restitutio 3. Adrian IV, quaest. de Restitut. Soto Lib. 4. de Iustitia, quaest. 7. art. 3. Medina quaest. 9. de rebus restitutis. Alensis 4. part. quaest. 86. num 3. art. 4 §. 7. Altissiodor lib. 4. summae, tract. de poenitent. cap. de Restit. and almost Valencia; Bassaeus num. 15. citing Peter of Navarre lib. 3. cap. 4. numero 130. Lessius lib. 2. cap. 13. dub. 10. Bonacina disput. 1. quaest. 2. punct. 11. Azor 3. part. lib. 4. cap. 17. Fillucius tract. 32. num. 75. Sylvius 2. 2. quaest. 62. art. 4. quaestio 4. and art. 7.

As to the keeper of the gates of woods who connives at the carrying-off of timber, many, as reported by Diana part. 2. tract. 5. resol. 54, deny that they are bound to make good the losses inflicted.

THERE ARISES another question: Whether a Confessor, and others on whom the office of prohibiting unjust detentions rests, are bound to Restitution if they omit to admonish, etc. As to the Confessor, they affirm it: Summa Rosella, V. Restitutio 2. §. 5. Summa Angel. V. Restitutio, ultim. §. 5. Navarre in the Manuale, cap. 17. num. 22. and others as reported by Valencia disput. 5. quaest. 6. puncto 3. and Bonacina de restitut. disput. 1. quaest. 2. punct. 11. The same view is followed by Nunges in addit. ad 3. part. Tom. 2. quaest. 8. art. 4. dub. 5. Zanchus in the directorium confess. part. 2. praecepto 7. cap. 26. dub. 3. Gabriel in 4. dist. 15. quaest. 2. art. 3. Sylvester V. usura, 7. quaestio 2. and other Neoterics as reported by Diana Tom. 1. Tract. 16. resol. 1. Bassaeus num. 8.

The CONTRARY opinion is that of Bonacina and others as reported by him, Filliucius tom. 1. tract. 7. cap. 12. quaest. 7. num; 37. Lessius Lib. 2. cap. 10. dub. 6. Malderus 2. 2. tract. 5. cap. 3. dub. 24. Bartholomew of Saint Faustus in spec. confess. disp. 4. quaest. 121. num. 7. Aegid. Coninch. de Sacram. disp. 8. dub. 17. num. 144. Rebellius de oblig. iust. part. 2. lib. 17. quaest. ult. num. 12. and part. 1. Lib. 2. quaest. 14. sect. 8. num. 63. Diana limits this, provided the Confessor does not persuade the penitent not to make restitution. But the obligation to join restitution with not dissuading is one and the same. This indeed is taught also by Suarez tom. 4. in 3. part. disput. 32. sect. 6. and Rebellius at the place cited, Caspensis disp. 5. sect. 9. §. 1. num. 86. Sanchez Lib. 7. Decalogi, cap. 6. Tanner. disp. 4. quaest. 6. num. 75. referring to others, Bassaeus, V. Restit. 3. §. 7. num. 16. Crousers ad cap. 7. Reg. Min. lib. 31.

The opinion of D. Bonaventure, as I see, is this second one; for in the Confessionale, cap. 4, where he professes to teach confessors what they are bound to do, and what penalties they incur by omitting it, he says: Attendendum igitur, quod cum sint tria genera poenitentium, primis nulla potest iniungi poenitentia utilis ad salutem. Horum autem sunt sex genera. Primi raptores, Secundi usurarii, Tertii incendiarii, Quarti fures, Quinti Simoniaci, Sexti dolosi circumventores, ut sunt perversi Iudices, advocati iniqui, testes falsi, negotiatores fraudulenti, et alii huiusmodi, quibus omnibus non potest alia iniungi poenitentia, nisi illa Evangelica, Matth. 18. Redde quod debes, et illa Apostolica, Rom. 13. Reddite omnibus debita. Et illud Ecclesiastici 4. Redde debitum tuum. Quod si hanc acceptare noluerit confitens, nulla alia iniungi potest, quae valeat ad salutem; quia, ut dicit Augustinus epist. 54. ad Macedonium 14. quaest. 6. Si res aliena, propter quam peccatum est, possit reddi, et non redditur, poenitentia non agitur; non remittitur peccatum, nisi restituatur ablatum. He then enumerates the rest shortly after in part. 7. He indeed condemns confessors who omit the debt; but he imposes nothing about Restitution upon them.

IT IS PROVED, because the obligation of restitution arises from the virtue of Justice alone; but the Confessor is bound to admonish not from his own justice, but from religion.

From the conditions adduced above other decisions are had. The first is that a Defendant who unjustly denies the crime in court is not bound to pay the monetary penalty due to the judge before the sentence. So Tanner. num. 76. with Adrian quodlib. 6. Navarre in the manuali, cap. 18. num. 49. Couarv. in Epitome 124. part. 2. cap. 6. §. 8. num. 10. Azor. Lib. 5. cap. 8. quaestio 5. Vasquez prim. 2. disput. 175. cap. 5. against Soto Lib. 4. quaest. 6. art. 6. Molina Tract. primo, tract. 2. disp. 95. The same seems to hold of witnesses, if they testify falsely. So Tanner. with Sà V. Restitutio, and Azor. at the place cited. The reason is that they are not bound out of justice to procure the good of the Judge or of the Treasury; nor has the Treasury acquired any right, under Commutative Justice, to the money before the sentence.

IT IS GATHERED secondly that both the Defendant and the witnesses, unjustly denying the truth, are bound to restore to the damaged party the expenses and other losses inflicted by the denial of the truth. So from the common teaching Carbo quaest. 31. Sà at the place cited, Soto Lib. 4. quaest. 7. art. 3. Medina Cod. de restit. quaest. 9. Tanner. num. 77. For they were bound out of justice not to damage the innocent party; yet they can be excused if grave losses to themselves threaten from the confession. So Tanner. with Lessius, and Sà. They judge it probable, indeed, that Molina holds they are never bound, disput. 83. Sylvester V. Testis, Lessius Lib. 2. cap. 30. dub. 8. Vasquez speaking of the Defendant in the chapter above cap. 2. Tanner. num. 79. Because it does not so plainly appear that these are bound to it out of justice.

IT IS GATHERED thirdly that a Judge negligent in delivering sentence is bound to restore the losses to the Republic and to the parties, but also the penalty which he would have paid to the Treasury for the Defendant had he proceeded rightly. The same they assert likewise of the fiscal officer: Sylvester V. Poena, quaest. 28. Salon art. 7. controv. 5. Carbo quaest. 31. who says it is the common opinion, and Vasquez agrees as to the fiscal officer. The reason is that out of justice these are bound to it by their office.

The CONTRARY, however, as to the Judge, regarding the monetary penalty to be paid to the Treasury, is held by Azor. at the place cited, ad 4. Sà V. Restitutio; Vasquez at the place cited. Lessius Lib. 2. cap. 3. dub. 10. as to the fiscal officer, whom others reported by Salonius follow.

IT IS GATHERED fourthly that toll-collectors are bound to restitution for the neglect of a just toll; but say otherwise of the monetary penalty which would come to the Treasury if they neglected to procure it. Say the same with Bassaeus of the keepers of things and fruits, from which something is given to the Prince.

IT IS GATHERED fifthly that Keepers of forests, rivers, etc. are not bound to pay the penalty which would have come to the Treasury had they reported the transgressors to the Magistrate. So Sylvester V. Restit. 3. quaest. 5. §. 7. Bassaeus num. 17. Lessius lib. 2. cap. 13. dub. 10. Tanner. num. 83. against Cato and Salonius. The reason is that their office out of justice regards not the good of the Treasury, but the security and defense of the public good. Except the tributes, as I said, excerpted from these.