Question III: Who is bound to restore

CERTAIN rules are handed down by the Doctors, that what is sought may be recognized. The obligation of restoring arises from a threefold source. First, by reason of the mere acceptance of another's thing, even if perhaps you no longer have that thing. Secondly, by reason of another's thing alone, which you have in your keeping, even if perhaps you have not received it from its Owner. Thirdly, by reason of both, namely the acceptance and the thing. By the name of thing is understood the thing, either in itself, or as it remains in some fruit, or in the price, or in effect, e.g. the gain by which you have been made richer.

BY acceptance I understand, not that which is gratuitous, but that which has been made in commercial dealings, e.g. of sale, purchase, etc. related above in disp. priori quaest. 10.

IT IS PROVED. He is bound to restore who is the true cause that someone have less than he ought of his goods: Such a one is he: Therefore. So Caietanus under the word Restitutio, Valencia disp. 5. quaest. 6. puncto 3. Tannerus in the quaest. cited, Caspensis disp. 1. sect. 4, who distinguishes these roots of Restitution as arising from the thing, from the delict, and from the contract, and adds two others, which are reduced to these. The first is from a statute of law. The second from the will, e.g. from a testament. For if someone has bequeathed to me a thousand gold pieces, the heir is bound to render them to me. So also D. Bonavent. in confessionali, cap. 2. particula 6. et 15, and cap. 3. part. 44, and cap. 4. particula 2, where with other Doctors he includes under the title of unjust acceptance injuries, as burnings, devastations, etc.; so also in speculo animae, cap. 2, and de decem praeceptis, 7, and in Diaeta, tit. 3. cap. 6.

BEYOND the executor, the causes of acceptance of another's thing are commonly reckoned as nine with D. Thom. here, and D. Bonav. in confessionali, cap. 2. particula 19, in these verses.

Command, Counsel, Consent, Flattery, Recourse, The Mute, The Participant, The Not-hindering, The Not-revealing.

Of these the first six are positive, direct causes; the last three indirect, as Tannerus disput. 6. quaest. 4. dub. 14. num. 392 says, with the Holy Doctors.

THE ONE COMMANDING, or ordering, tacitly or expressly, is a true cause of the damage; if, however, he revoked the command before the damage, with the knowledge of the Mandatary, the latter is not bound to restore. So commonly in Bassaeus, V. Restitutio, 5. §. 1.

THE ONE GIVING counsel, or urging, asking, instructing. If he revoke his Counsel, etc., he does not seem to be bound to restitution any longer; although others say it is not enough merely to urge, but he must efficaciously withdraw it, as Bassaeus §. 2 relates.

HERE is reduced the one giving consent, if he is a cause of the damage, e.g. by giving a vote for an unjust war and other iniquities.

THE PALPO is one praising the crime and moving to it, or mocking, as if the one to be judged were sluggish, whence he is moved to vengeance like a buffalo. See Lessius lib. II. c. 13. num. 15; Regin. lib. X. num. 85; Petr. Nau. lib. III. cap. 4. num. 37; Azor 3. part. lib. IV. cap. 13; Filliucius tract. 32. num. 64; Sylvius cap. de Palpone; Bassaeus §. 4.

RECURSUS signifies the Receiver of stolen goods, etc., by fostering, protecting unto the damage, or retention, of another's thing. Thus Innkeepers receiving money stolen by sons of families, or servants; yet if they do not receive it as from a thief, but as from a friend, etc., then the Innkeeper is not bound to restore. See Bonacinus de restit. disput. 1. quaest. 2. punct. 2; Filliucius cit. num. 66. et 67; Bassaeus §. 5. Here the Holy Doctor includes those who foster brothels in their places of business, harlots and gamers in houses to which unwary youths fly as to snares, robbing those whom they have made steal, and bringing thence moneys and many precious things. These bloodsuckers will drink up the better portion of the blood of the innocent.

THE PARTICIPANT forthwith judges those plundered, and all cooperating in inflicting the damage; if, however, he is constrained by fear of the rope, by giving keys, holding the ladder, he seems immune from the debt of restitution; so also the Ergastula slaves of the Turks seem immune, forced to inflict damages upon us; but I do not agree that they are excused as to killings. See Suarez tract. 5. disp. 21. sect. 2.

THOSE who are co-causes of the same damage, e.g. a fire, are bound in solidum, l. Ita vulneratus, ff. ad Legem Aquiliam.