2. On the Not-Voluntary and the Involuntary

1. Blasius, wishing to harm Caius his enemy, intended to pierce his ass with lead. But alas! a double misfortune befell him. For the ass is not struck by the bullet, but leaps and springs away unharmed, while the cow of Titius his friend, which after a dense hedge was lying quietly, and could not be seen by him, is unhappily killed.

Q. 1. What is the not-voluntary and the involuntary? 2. Is Blasius held to restitution for the ass not harmed, or for the cow killed?

R. To the first, cf. I. M. 8, 18. To the second, negatively to both. He is certainly not held to restitution for the ass, since it escaped unharmed. For to sin the mere will of causing damage suffices; but for restitution from damage caused, the mere damaging will does not suffice. There is also required a truly damaging action, and damage truly inflicted.

Nor is he held to restitution for the cow, since he neither intended that damage nor could foresee it, and so it was not voluntary; indeed it was altogether involuntary to him. For, for restitution from damage caused, an action actually damaging and damage actually inflicted do not suffice; it is required also that damage of this sort proceed from the will and be voluntary, so that it may be imputed to him and an obligation of reparation arise for him. Therefore in the forum of conscience, or before the sentence of a judge, he cannot be urged to any reparation of the damage. But what if the ass and the cow had belonged to the same Caius? In the rigor of principles, not even then would Blasius be held for the damage. For although it would not then have been involuntary, nevertheless it would still have been not-voluntary, because that damage would always have been unforeseen. For he had not seen the cow. - G. 3; I. M. 1358, 1370.

2. Faustinus, wishing to affect Nicolinus his enemy with injury, resolved to kill a pair of horses, which Nicolinus held very dear to himself. But amid the darkness of night, not discerning well, he kills another pair, namely asses of the same Nicolinus, which Nicolinus also held very dear to himself.

Q. Is Faustinus held to restitution; and, if affirmatively, what ought he to restore?

R. Faustinus is held to restitution from unjust damaging. For in the case there was a culpable, efficacious, and unjust cause of damage. Therefore no necessary condition for restitution is lacking. And indeed, knowingly and willingly, Faustinus killed the pair of asses, although he thought it was a pair of horses. Whence it cannot here be said that that killing was not-voluntary to him. The difficulty can only be in the estimation of the damage, because this cannot be taken from the horses, which he did not kill, nor from the asses, which he did not wish to kill. But certainly it cannot be taken from the horses, because their damage does not exist; and, on the contrary, it must be taken from the asses, because their damage does exist. In the present matter, error of person excuses from restitution, because then there is no injury of the person; but error of thing, since it does not remove injury of the person, does not excuse from restitution; for this always remains, whether by damage of horses or of asses; for in that damaging, the injury of the person, not of the horses nor of the asses, is considered. Therefore the damage unjustly inflicted must be repaired: the damage inflicted, by no means that which was not inflicted. If Caius, in order to inflict injury on Sempronius, were to snatch from him a golden necklace, judging it silver, and throw it into the sea, would he not certainly be held for the estimated value of a silver necklace? And if the necklace were silver, and he judged it golden, would he not again be held for the real value of the silver necklace? - Cf. 5. 1.