XXIV. On Restitution from Unjust Damaging

Whether from damaging there arises an obligation of restitution? A damager is called one who injures another's right, harming his neighbor in his goods, yet without becoming richer thereby. Wherefore damaging is a source of restitution diverse from the preceding ones. "Whoever damages someone seems to take away from him that in which he damages him; for damage is so called from the fact that someone has less than he ought to have.... And therefore a man is bound to restitution of that in which he damaged someone." St. Thomas, 2. 2, q. 62, aa. 4, 6; Inst. l. 4, t. 3; C. B. 249 ff. Whatever act of man is the cause of damage to another obliges to reparation of that damage.

Nor indeed does only one's own act oblige to restitution, but also the act of another person or of a thing, of which someone has custody and care. And thus the proprietor of a house which falls because of defect of due conservation or construction is held concerning the damage which comes from it. The proprietor or custodian of an animal which causes pauperies is also held concerning damage. If a damaging act of this kind was committed with the intention of harming, it is called deceit and delict; if without that intention, from imprudence and negligence, it is called quasi-delict and juridical fault. C. I. 1151 ff.; C. G. 1382 ff.; C. H. 1089, 1092, 1104, 1105, 1902 ff.; C. A. 1293 ff.; C. B. 823 ff.; St. Thomas, 2. 2, q. 62, a. 1, ad 2; aa. 4, 7; E. M.

What are the conditions required for restitution from damaging? - In order that a damaging action induce an obligation of restitution, by the law of nature a threefold condition is required, namely that it be unjust in itself, and not only in intention; that it be an efficacious cause of the damage, that is, that it really influence the damage of another; and that it be theologically culpable; that is, that it be unjust truly, efficaciously, and formally. It is proved. It must be an action unjust in itself; otherwise there is no place for real reparation of justice. C. A. 1305. It must be efficaciously unjust; otherwise, since someone is not the author of the damage, he is not bound to repair the damage.

It must be theologically culpable; otherwise an obligation in conscience of repairing damage inflicted by injury by no means arises, since injury was lacking in the forum of conscience. - Hence very probably juridical fault alone, excluding theological fault, does not suffice for compensation of damages. But if juridical fault also induces theological fault, then indeed it obliges to compensation of damages. Fault, namely grave. Cf. 1329. - Cf. 1072, 1073, 1077; Ithur., Cas. 27, nn. 2, 3, 5, 12, 13; L. 550, 551, 556, 570, 572, 613; C. A. 1299, 1300, 1306 ff., 1331; C. B. 276, 273, 280, 823, 827, 833 ff.

If several slight damagings were made, and were made to the same person, they become a grave sin, whether because of the intention of grave damage, or because of moral union with a brief interval, or because of conspiracy with others, and the damage inflicted must be repaired under grave obligation. But if small damages were made to different persons and inflicted separately, and not all coalesce together by moral union by reason of distance of time, slight quantity, etc., grave sin is not present, since no one is gravely damaged, and the one damaging does not become rich from another's property, nor consequently is there grave danger of damage for society, and therefore there is no obligation under grave obligation of reparation of the damage.

What must the damager restore? - The unjust damager is bound to restore: 1. The whole equivalent of the thing damaged. Thus, e.g., if someone culpably burns another's house, he must repay its full price to the owner. 2. The whole equivalent of damages foreseen besides the damaging of the thing, if any have come from it. Hence, e.g., if a workman is compelled for some time to omit his customary work because you destroyed an instrument necessary to him, you are bound to compensate him not only concerning the value of the instrument, but also concerning ceasing profit. Concerning ceasing profit: "such damage need not be recompensed equally, because it is less to have something in potency than to have it in act." St. Thomas, 2. 2, q. 62, a. 4. - C. L. 2392.

Whether he is bound to restitution who indeed inculpably placed the cause of damage, but afterward did not prevent it, although he could have prevented it? - Resp. Affirmatively. The reason is that each person is bound from justice to prevent, if he can without great inconvenience, lest his action harm his neighbor; therefore he is also bound to prevent lest the evil following from his action persevere.

Hence 1. he who inculpably set fire under another's house, when he adverts to the danger of fire, is bound from justice to prevent it, if he can. 2. Likewise a pharmacist who by error sold poison for medicine must from justice warn the buyer. 3. Likewise, he who by error said something grave against the reputation of another is afterward bound, once the error is known, to correct it; and, if he does not do so, he sins gravely and is obliged to reparation of all damages which come from this. - L. 564.

Whether damage must be repaired which follows from a cause culpably indeed placed, but already retracted when the damage is inflicted? - Resp. Affirmatively, at least if that damage was determined and foreknown in species. Thus, e.g., if someone voluntarily gave poison to another, and afterward cannot impede its effect, however much, repenting of the deed, he greatly wishes to do so, he will be bound to repair damages arising from the homicide. The reason is that he who placed the cause of the damage always continues to influence it efficaciously.

Whether damage must be repaired which is indeed accidental, but inflicted while giving oneself to an illicit work? - Resp. Negatively, because that damage is not voluntary, since it was not foreseen even confusedly. Nor does it matter that the action was illicit; for this pertains nothing to the reason of justice. Thus a cleric who, giving himself to hunting against the prohibition of the Church, kills a man instead of a wild animal, is no more guilty of injustice than a layman who would have done this. Indeed, damage inflicted accidentally does not have to be repaired even if it happened on the occasion of an unjust action, because it does not have connection with that action. Hence one is not bound to restitution who kills Titius, whom he by no means saw nor knew was present, while he was directing a gun at Caius. - Lugo d. 8, nn. 72, 82; L. H. A. 39.

Whether he is bound to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example? The first and more probable opinion denies, because one who gives bad example is not the cause of the damage, but a mere occasion. For an evil action does not of itself tend to excite others to imitate it. Therefore the other damagers are determined altogether from themselves to inflict damage. - The second opinion affirms, because one furnishing bad example, with foresight of contagion, can be held as an efficacious cause of damage; since in some way he influences the determination of those who inflict the damage. And experience teaches that men are moved more by examples than by counsels, according to the axiom: Words move, examples draw. - L. 537; l. 2, n. 45; Antoine p. 2, c. 3, qu. 15; Billuart diss. 8.

Whether you are bound to repair damage coming to someone on the occasion of your unjust action, e.g., if you stole and the theft is imputed to him? - Resp. Negatively, certainly, if you did not foresee that damage. For you are not the theologically culpable cause of such damage. Resp. Negatively also, more probably, although you foresaw this damage. The reason is that your action, even with foresight of the damage posited, is not its cause per se, but only accidentally. Indeed, probably it must also be denied even if you deliberately acted so that your action might be imputed to him, because this action is always only the accidental cause of the damage, and not the per se cause; for it did not by its nature efficaciously influence that damage. For a depraved intention does not cause that work to be unjust which of itself is not unjust with respect to the third party. - Resp. Affirmatively, if the circumstances ever were such that a true connection would be given between them and grave suspicion concerning another. Likewise, altogether affirmatively, if someone used those means which would offer the gravest suspicion for accusing another, e.g., if he put on his clothes to commit homicide and threw them away stained with blood, etc. - L. 635, 636; La Croix 157.

What if an external work is posited indeed from an evil intention, but, although damage can occur, it is not truly probable that it will follow? There is controversy among the gravest theologians. But the state of the question will be clearer from the following examples, namely: 1. Someone places poison or a snare in a place through which his enemy passes very rarely, but with the intention that he be killed if by chance he passes. 2. A physician employs all the diligence to which he is bound, but does not wish to employ greater diligence out of hatred, so that the death of the sick man may follow. It is asked: whether these are the cause of an unjust death which perhaps will follow, if in fact it follows? There is a twofold opinion. The first, more common opinion denies. The reason is that on one side the external act is not unjust, since the mere possibility of another's damage must not be attended to in human affairs; on the other side, the external act is not made injurious by reason of the intention, since intention does not influence the efficacy of the cause, or the danger of damage. For then it must be called a merely accidental cause, and the depraved intention does not change its nature. Hence neither is he unjust in fact who digs a well on his own land so that the neighbor's well may dry up. Who certainly would say that the director of a railroad is bound to restitution because he does not send scouts before individual carriages to see whether some person is in the middle of the way and perhaps is to be killed by the passage of the carriages, although he omits this from the depraved will of killing all if perhaps they are there? But the second opinion affirms. The reason is that in the aforesaid cases homicide is certainly against justice and is not excused except insofar as involuntary. But the intention renders it voluntary. For the reason why, excluding the intention, it is not voluntary is that the one placing the cause is not judged to will the effect efficaciously, since the effect is not probably connected with the cause; but the intention supplies that connection and causes the one acting to be its true cause. For the intention of the one acting contributes much to the character of a cause. Therefore. But mere foresight of the possibility of damage in the aforesaid cases would not suffice for the character of injury; rather, the intention of procuring it is also required. - Lessius l. 2, c. 9, n. 133; Lugo d. 8, n. 75; L. 584; C. A. 1305, 1311.

Whether one who thinks from invincible error that the damage inflicted by himself is much less than it truly is, is bound to restore it all if afterward he recognizes the true price, e.g., if someone throws into the sea another's jewel worth 100, while he believes it to be worth only 10? - He is probably bound to restore only in proportion to the known damage, because damage which is invincibly unknown is not judged voluntary. For restitution from a thing unjustly accepted rests on material injury alone; but restitution from unjust damaging rests on formal injury. Moreover, injury is estimated from the mind of the one injuring; and therefore, if by chance an excess was not foreseen in the damage inflicted, it is not imputed. But the opposite does not follow if, on the contrary, an excess is falsely thought, because then damage is not in fact, but in opinion; and damage is not made by opinion, but by action. Nevertheless there will be an obligation of repairing the whole damage if, when suspicion of a greater price arose at least confusedly, the whole damage becomes voluntary. L. 613.

Whether he is bound to restitution who impeded another from the attainment of some good? - Resp. Affirmatively, if the neighbor has a strict right to obtaining the thing, e.g., in the case of competition for some public office. For then someone either himself commits injustice against him, or becomes an accomplice in the injustice done to him by another. - If the neighbor does not have a strict right to obtaining the thing, one must distinguish. It must be affirmed if it is impeded by unjust means, e.g., by fraud, calumny, fear, etc. But it must be denied if it is impeded, e.g., by means just in themselves, e.g., persuasion, requests, etc.; or even if it is impeded by unjust means, but the thing cannot be given without sin, as e.g., if by lies a wife impedes her husband from squandering the goods of the family.

The reason is that in the first case a most true injury is done to another; in the second no right of another is then violated, neither in itself nor in the means; nor is injury had in the third case, since there is an obligation of not giving. For anyone has the right of impeding an illicit act, and therefore commits no injustice in relation to him who for that reason is deprived of some good, although, to impede that evil act, he uses an unjust means. Nor indeed can someone claim any right, whether proximate or remote, to that good. L. 582, 585, 587, 588, 614, 632, 633; H. A. 61; St. Thomas, 2. 2, q. 62, a. 2, ad 4; Gousset 970-972.

Whether you are bound to restitution if from an evil intention, e.g., from hatred, yet with means of themselves unjust excluded, you turn another away from the attainment of a good to which he does not have a strict right? Resp. Negatively, more probably. The reason is that no injury is inflicted on the neighbor. For evil intention does not suffice for injury, but an external action is required which is the true and efficacious cause of unjust damage. - L. 584, 585; Elbel 108.

Whether he is bound to restitution who doubts whether he himself was the cause of damage? - It is common among doctors that in doubt whether the cause was placed, or whether damage was inflicted, he is held to no restitution. The reason is that the fact is not presumed but must be proved. If the doubt turns on the influence of the action into the damage which certainly occurred, there is controversy. The first opinion, very probable from St. Alphonsus, affirms, because, once the fact of the action is posited, the action is presumed to have been the cause of the evil, if it was truly apt to inflict the damage. The second opinion, from the same Holy Doctor, "also sufficiently probable, denies... and St. Thomas seems to hold this, 2. 2, q. 62, a. 7.... The reason is that general rule, that no one is obliged to restitution unless such an obligation is altogether established, namely that he himself was the true cause of the damage." L. 562. Likewise it seems to be denied if someone probably judges that he has already sufficiently repaired damage certainly inflicted by himself; for the condition of the possessor prevails, and no one is to be despoiled of his own thing unless there is a morally certain obligation. And this also holds in the case of a debtor who probably judges that he has already fully satisfied the debt. For although the obligation was certain beforehand, nevertheless now it is doubtful. - L. 547, 575, 579, 706. Cf. here 1469.

Whether you are bound to repair damage which you inflicted on someone from error, while you intended to harm another, e.g., if you burn the house of Caius, which you think is the house of Titius your enemy? - There is a twofold probable opinion. The first, which several and grave theologians hold, affirms, because in that case all conditions required for urging restitution are present, namely an unjust action, an efficacious cause of damage, and theological fault.

The second, "with Leander, Molina, Tamburini, Lugo, La-Croix... denies that he is bound to restitution, provided he did not intend, not even confusedly, to burn the house of another than Titius.... The reason is that for the obligation of restitution which arises from damaging, principally made because of injury, formal injury is required; nor does material injury suffice, and only effective injury without intention, just as neither does merely affective injury suffice when the external work has not been completed, as this would be. For Cardinal de Lugo speaks thus: 'When I intend to inflict damage on Titius, with the intention of bringing injury to him alone, anyone else being excluded, if afterward through invincible error I injure Caius, the injury with respect to Caius is not formal and affective, but only material and effective, and merely accidental, since I did not have the intention of injuring him, neither in particular nor in general; and therefore I am not bound to restore to him damage which arises from injury. It does not avail to say that for the obligation of restitution it is enough to intend some unjust action and execute it; for the cited doctors respond that for the burden of restitution by reason of damaging, an action materially unjust alone does not suffice, but in addition an action formally, or voluntarily, injurious toward the other who is injured is required. But this voluntary injurious action is lacking in our case, since the action happens beyond the intention, and it is not formally injurious to anyone; for if I intend only to injure Titius, and exclude anyone else, then I voluntarily offend no one: not Titius, because in fact he is not injured; not the other, because with respect to him my action is altogether involuntary, and therefore the error is about the substance.' Thus St. Alphonsus, 629. But soon showing the distinction between damaging and theft, the Holy Doctor adds: 'For in theft it is not attended to whom he wished to do injury, but whether he truly wished to accept the thing while the owner was unwilling, since the obligation of restitution because of damaging seems to differ in this from restitution because of theft: for in damaging injury to the person of the owner is principally intended, and his damage accessorily; but in theft unjust profit is principally intended, and injury of the owner accessorily; and therefore error of owner, in the case of theft, seems to be about a quality, but in the case of damaging about the substance.' Certainly injury is done to a person, and if it is not done to a person, what injury can there ever be?" Cf. L. 628.

To what is the damager bound in goods of the soul? - Whoever, by fraud, lie, force, fear, or another unjust means, or being obliged from office, by his action strives to inflict on someone spiritual damage, whether of the natural order, e.g., by depriving him of memory, reason, etc., through poison, a potion, etc., or of the supernatural order, e.g., by inducing him into sin, into error against faith, etc.; or strives to deprive him of some good, whether of the natural or supernatural order, e.g., lest he learn a science or art, lest he enter religion, etc., is bound from justice to remove that unjust means. Moreover, he must repair damages which come from that unjust means, provided those damages can be repaired in the same order. The reason of both is that anyone has the right that damage not be unjustly inflicted on him, or that he not be impeded from attaining a good. L. 660-662; St. Thomas, Quodl. 5, a. 25; C. A. 1299, 1300.

But if someone not obliged from office, and without fraud, lie, force, fear, or another unjust means, by his action is the cause to another of some spiritual damage, whether supernatural or natural, or of privation of some good, he is bound from charity to impede, if he can, with greater or lesser inconvenience to himself according to the greater or lesser danger of another's damage, and according to the greater or lesser good of which the other is deprived, lest his action harm his neighbor. For if he does not do this, now his action, the cause of another's damage, which from the beginning was perhaps altogether inculpable, when he now adverts to the subsequent damage, becomes altogether culpable. And if from the beginning it was culpable, he ought not persevere in the fault. Yet he is held to no reparation of damages from justice, e.g., if someone by bad example alone or depraved persuasion, without force and fraud, induced another to sin; or if someone gratuitously, without any obligation of pact or office, and fraud and deceit excluded, badly taught another from mere negligence or ignorance. - L. 660.

To what is the damager bound because of unjust homicide? - Homicides or mutilators more probably must restore nothing precisely for life, member, etc., because these are not estimable by price. But they are bound to compensate all other temporal damages of which homicide was the efficacious cause. L. 7, de His qui effuderint, Dig.; C. A. 1325 ff., 1329; C. B. 823; L. 626.

Resolutions: A homicide or mutilator is bound to compensate damages which are inflicted on the injured person himself before his death, such as expenses made in curing the illness, and whatever during that time and for that cause he lost from interruption of work, omitted business, impeded profit, etc.; unless these are condoned by the injured person himself, they must be paid, in his absence, to the heirs, whoever they may be, to whom the real rights of the killed man pass. L. 630, 631; G. 725; C. A. 1325, 1326, 1337. He must compensate damages necessarily coming to the wife, children, or parents of the killed man. For the unjust homicide is bound to restore also to those to whom by his unjust action he per se inflicted damage. But to those whom the killed man ought to have and could have supported, with attention to age, health, etc., by his unjust action he per se inflicted damage. Therefore. But since the injured right of these persons is not the right of the killed man himself, the latter cannot remit it to the killer. From the very reason adduced, the quantity of compensation to be made by the killer toward such persons is clear. Namely, speaking of itself, he is bound to restore as much as the killed man was bound and able to furnish for their necessary sustenance, and that owed to their state, according nevertheless to the hope of that sustenance. To the wife, etc., not to others whom perhaps the killed man supported, because damage happened to them accidentally. Sustenance: therefore if they are in need, and insofar as and as long as they are in need. Lugo d. 11, nn. 81, 82, 88; L. 630, 631, 632; C. A. 1325-1327, 1329; C. L. 2384 ff.

He must likewise compensate all other damages to the wife, children, or parents of the killed man, for whom the killed man was going to gain and probably was going to leave goods, according to the estimation of this frustrated hope, if namely the killer foresaw this; for by unjust means they are deprived of the attainment of these goods. Cf. 1367. He must compensate whatever damages, and of whomever, which follow necessarily, per se, and unjustly from the death of the killed man; such are damages of creditors. For by killing, he unjustly and with the greatest force impedes the debtor from satisfying the creditors. Cf. 1367. Nor can the killed man condone these, because he has no power of disposing over the rights of others. But others simply deny this obligation, Lessius l. 2, c. 9, dub. 26; others oblige him only in the case in which the one injuring foresaw the damages of creditors, which certainly is altogether necessary; and others assert that the homicide is not bound to restore to the creditors of the killed man, even if the homicide foresaw their damage, provided he did not intend it. Yet that direct intention, whether it is present or absent, does not change the nature of that externally unjust action toward the creditors, and of the most efficacious cause of their damage. Indeed, if the killing, considered objectively, is not a per se cause of their damages, it certainly is not made such by this extrinsic intention. L. 584, 613, 633, 634, 636; C. B. 843 ff.

Note: Although a homicide is punished with capital punishment, the obligation of restitution passes to the heirs. C. A. 1337. For these succeed both into the rights and into the real debts of the deceased. Yet several judge the heir excused from restitution if compensation of damages is not sought, because then the parties are presumed to condone. L. 631, 705.

Whether he is bound to anything who kills another in a duel? - Resp. Negatively, more probably, whether he was the challenger or the challenged. For the one himself who was killed, by consenting to the duel, placed by his consent the whole necessary and sufficient cause of those damages. Except unless he induced the other by force or grave threats, and thus as though coerced him. L. 638.

To what is the damager bound because of stuprum and fornication? Two things must be distinguished: simple injury and damage. Simple injury is compensated by satisfaction; and this is owed both to the woman who unwillingly suffered stuprum, and, regularly speaking, to her parents; if namely it has become known to the father, and the daughter still remains in the father's family, although she is no longer under paternal power. By satisfaction: namely by asking pardon, showing honor, with humble submission of oneself. L. 641. For merely natural damage, or for lesion of bodily integrity and loss of virginity, nothing, at least more probably, must be restored, because that damage cannot be compensated by money. L. 640. Even for temporal damage which has followed from shameful intercourse, nothing, except the education of the offspring, must be restored when the woman consents to the solicitation; neither to the consenting woman herself, because injury is not done to one knowing and willing, nor to her parents, because no strict right of theirs is violated. Except nevertheless if the fornicator himself reveals the crime, and damage comes to the woman and her parents from the defamation; this certainly must be repaired. C. A. 1328; Gousset 1012; L. 641.

If the violator has violated the girl by force, fraud, deceit, threats, he is bound to repair every damage coming therefrom to her or her parents, because he is the efficacious and unjust cause of this damage. L. 641; C. A. 1328; C. B. 825, 847. Damage must be repaired, namely if the woman, from lost virginity, either can no longer marry, or cannot enter except into worse marriage. But damage from this is present if the stuprum is revealed, by no means if it remains hidden; and therefore restitution then ceases. But if it is revealed by the fault of the woman, although she herself suffered force, she must impute the damage to herself. But if it is revealed by the fault of the man, he is bound to compensate the damage, although the woman consented and had already been corrupted. But if it is revealed by the fault neither of the man nor of the woman, and the woman was unwillingly oppressed, the man took upon himself the danger of damage and is bound to restitution. L. 640, 641, 642, 646.

Restitution consists in this: that the man either dower the woman or take her as wife. Dower: namely if she has no dowry; or, if she has an insufficient one, that he increase it so that the woman can marry equally well. Take her: if namely the woman wishes, lest injury be added to injury if she is coerced. But it belongs to the woman to choose either to accept dowry or to enter marriage; for she cannot be compelled to accept dowry, since the damage inflicted cannot otherwise be repaired more to equality than by marriage entered into; and if the woman wishes marriage, the man, of himself, is bound to marry her in the forum of conscience, especially if he promised marriage, or if the girl whom he seduced conceived thereby, to impede scandal and to secure the lot of the child. Lugo, Resp. Mor., l. 1, d. 44. Yet, because coerced marriages often have an evil outcome, hence doctors commonly teach that it suffices if the man dower the woman, so that she can marry equally well; and, they say, the man is bound to marriage only if he cannot dower the woman, provided he can do this without far greater damage to himself, as, e.g., if the woman is of far inferior condition, if great scandal is feared from the marriage. But dowry is owed only to the woman whose interest it is to marry, and begins to be owed from the time when it is sought. Wherefore, if it has not been sought, and the woman marries equally well or dies, nothing is owed. - L. 641, 642, 644, 648, 649; l. 6, n. 104, 851; Lugo d. 12, nn. 8, 9, 11, 12, 14, 16, 17, 18; Resp. Mor. l. 6, d. 19; C. L. 2391. Each is bound to recognize and feed the son born, because he is the son of each. If the son cannot be recognized without infamy, and the woman suffered force, the man alone is bound to feed him, C. A. 1328; but if the woman makes gain from her body, she alone is bound to feed the son. But in default of the violator, the mother must undertake care of the son, although she admitted no fault, because she is the mother. But then she preserves recourse against the corruptor, who is bound to compensate her for all expenses which she made on the occasion of the offspring.

But if the woman consented to the sin, according to Roman Law the mother is bound to feed the infant for three years, and afterward the father must provide for him. According to C. I. and C. G. nothing is expressly established. Yet jurists recognize that parents are equally and in solidum obliged at least to feed and educate legally recognized children. This is drawn from C. I. 138; C. G. 203. According to C. A. 139, 141, 143, 163, 166 ff.; C. H. 165; C. B. 1707-1709, 1715, the father is principally obliged, and in his default the mother. But even if the children have not been recognized, nevertheless by natural law the same obligation falls on them. - Carrière 1371; Gousset 1016. According to C. B. 1717, an inquiry of paternity is had, and in cited arts. 1707-1709, 1715, there are obligations, toward the son, of the mother; and, toward the son and mother, of the father. Likewise according to C. He. 302 ff., the mother and son have the right of inquiring concerning the father; and the same obligations of the father toward the son and toward the mother are declared, and in the case also in which he promised marriage to the mother before intercourse. According to C. A. 163, 164, unless he confesses, the father is presumed to be he who had intercourse with the mother at a time apt for conception of the offspring. And the proof is full if his name has been duly consigned in the books of the baptized, with the testimony of the pastor and godparent added. According to C. H. 134 ff., the father and mother are bound to recognize a natural son when some writing of theirs is undoubtedly present, by which they expressly recognize their paternity or maternity; and when, as regards the father, the son is in continuous possession of the status of natural son of the required father, proved by direct acts of the same father or of his family; and when, as regards the mother, the fact of childbirth and the identity of the son are fully proved. A recognized natural son has a right not only to food, but indeed also to a hereditary portion which is owed to him according to the same Code, art. 840. Yet a recognized natural son is of a distinct condition with respect to a legitimated natural son. For the latter succeeds in the first place, and the recognized son in the third place after descendants and after ascendants, art. 807.

To what is the damager bound because of adultery? - Whatever has come to an illegitimate son, as though legitimate, from a false cause must be restored. Hence "there must be restored for the expenses which the husband makes in the food of another's offspring. Likewise what for that cause he gives to him, or leaves after death, which indeed must be rendered to the other sons or coheirs. Likewise if the consanguineous relatives of the husband, thinking the son to be legitimate, give or leave something to him with that in view. For all these things they do and spend from a false cause, and the unjust deceit of the adulterer." Lugo d. 13, n. 2, 34 ff.

On the contrary, what comes in any way to the adulterine son from the mother and maternal consanguineous relatives, by donation, legacy, testament, must not be restored. But both the adulterine son himself and his adulterous parents must restore. The adulterine son must restore from the thing unjustly accepted, and therefore he must restore those things which he still has, or their equivalent in which he has been unjustly made richer. - The parents must restore from unjust damaging, and therefore they must compensate the damage which follows per se and as it were necessarily from the adulterine son being held as legitimate, namely the expenses made by the husband, or by his ascendants, for feeding, sustaining, and educating the adulterine son; and those things which the adulterine son received from them, not from other consanguineous relatives, by gift, testament, succession.

What he received from other consanguineous relatives as brother or nephew is accidental. - Lugo d. 13, nn. 37, 40; L. 659. But the parents must restore, namely 1. the adulteress, unless she was unwillingly oppressed, by leaving more to the legitimate children, by living more sparingly, by administering the family property more diligently; 2. the adulterer, unless the mother could easily have removed the son. But each is held in solidum, if the crime was voluntary on each side, because the whole must be imputed to each.

If the adulterer extorted the consent of the woman by force or grave fear, he alone is held to repair the whole damage. Lugo d. 13, nn. 9, 13; Less. l. 2, c. 10, dub. 6, 7; L. 659; C. B. 826, 847. But the son must restore if it is certain and evident to him that he is adulterine. Likewise his parents must restore if it is certain and evident that he was conceived from adultery. - Lugo d. 10, n. 17.

Restitution must be made to those who expended or gave, and, when they are deceased, to their heirs; restitution must likewise be made to the legitimate children injured because of the adulterine son, if the illegitimate son accepted the inheritance together with the legitimate ones. L. 659. A cause justly excusing from the aforesaid restitution is if it cannot be made without grave danger and damage to life, liberty, or reputation. Lugo d. 13, n. 58; L. 653. If the crime has become known to the husband, they must compensate the personal injury by asking pardon, by signs of sorrow and submission, and by other things of this kind. Ithur., Cas. 6. If no offspring followed, no restitution is to be made. For then by adultery no damage is inflicted, but only simple injury to the person.

What in doubt whether the offspring is the husband's or the adulterer's, or from such adulterer rather than from some other? Resp. To the 1st: More probably, the adulterers are held to nothing, because the damage is not established. L. 657; Lugo d. 13, n. 17, and many others against others who say restitution must be made proportionally. Resp. To the 2nd: The first opinion holds that each adulterer is held to restitution proportionally. The reason is that the damage is certain, and it is established that it was done by one or the other; moreover, each is an efficacious and unjust cause of the uncertainty which prevents compensation from being demanded determinately from one. La-Croix l. 3, p. 1, n. 704; p. 2, n. 337; Lugo n. 19; Roncaglia c. 2, q. 3. The second opinion denies, because a certain burden cannot be imposed where the obligation is doubtful. Nevertheless, except if the second adulterer adverted, at least implicitly, that by his sin he would be the cause of uncertainty. Likewise, if the adulterers perpetrated adultery by common counsel, or if neither was ignorant that the woman had already been known by another. L. 658. - Elbel, de Actib. human., 161 ff.; cf. here 1369; C. B. 830.

Whether the woman is bound to reveal her crime if she cannot repair the damage in another way? - Resp. Negatively, generally speaking. The reason is 1. because commonly this revelation cannot be made without great infamy for the woman, and often without danger of death, or perpetual hatred, or other grave evils. 2. Because, even with such a means employed, she could repair the damage only with difficulty, especially since the son is not bound to give faith to the mother. Cf. 1380. They commonly except if the mother is of ruined reputation, etc. L. 653. "To the woman who, while her husband is ignorant, conceived offspring from adultery, although she fears to confess this to her husband, penance is not to be denied.... But fitting satisfaction must be imposed on her by a discreet priest." C. Officiis 9, de Poenit. et remiss.; St. Thomas, Quodl. 5, a. 16.

Whether the son is bound to believe the mother even swearing that he is illegitimate? - Resp. Negatively, because from law and common sense no one is bound to believe one witness, even of very proved faith. Yet it is otherwise if besides the testimony of the mother evident indications are added, e.g., the absence of the father for a long time. L. 654.

Whether, if adulterers or fornicators were wealthy, and sent the offspring to a foundling hospital, they would be bound to repay the expenses? - There is controversy.

The first opinion affirms. The reason is that foundling hospitals are instituted in favor of infants, not of parents; nor are their founders to be presumed to have wished to exempt the rich from paying expenses. Lugo d. 13, n. 3; Bouvier, de Restit., p. 2, art. 2; Carrière n. 1373; Rousselot, opusc. de Sexto Praec. - The second opinion denies, because those foundling hospitals were erected for all infants indiscriminately who are cast off by parents, whether they pertain to rich or to poor progenitors. Nor is it an obstacle that subsidies are furnished by the Government or Municipality for those little children, because these are generally attributed for abandoned little children, without attention to parents. In addition, hospices of this kind were instituted for this end, that illegitimate infants be freed from the danger of death, both eternal and temporal, to which they would be especially exposed unless they were received in those pious places. For how many impious and barbarous parents has fear of infamy driven either to procure the abortion of their offspring, or to inflict death on it? Moreover, the children of the rich no less than the children of the poor would incur such danger. St. Lig. 656, who thinks this opinion more probable.

To what are soldiers bound because of damage inflicted on the occasion of military service? - Soldiers are held to nothing by reason of damage in common action, unless the injustice of the war is established to them, because they are not formally unjust damagers. - But soldiers in an evidently unjust war are held concerning all damages which they inflicted by private action; and each is held proportionally concerning damages inflicted by the whole army, unless they were compelled to wage war from grave fear; for then they did not exercise influence into the whole damage either by real action or by common conspiracy. But commanders or Princes are held primarily and in solidum concerning the whole damage inflicted by the army, because they are truly commanding; or, if they did not command the damage, they were bound from office to prevent it. - Lugo, Resp. Mor., l. 6, d. 16.

Whether individual soldiers are held in solidum concerning the whole damage inflicted by the army, in default of others? - Resp. Negatively, more probably, because the individuals are not the cause of the whole damage, but only of a part. For individuals are neither the sufficient nor the necessary cause of the whole damage. Moreover, in practice they would be excused from absolute impotence.

To what are conscripted soldiers who are deserters bound? - They are bound of themselves to return to the camp from obedience or from legal justice. The common good itself of public security to be protected demands military service to be furnished by citizens. For society has the right of its own conservation, and consequently to the necessary means, so that it may be defended from internal and external enemies. Moreover, military force is a means altogether necessary for this. Wherefore military laws of themselves are altogether just, and citizens are bound to obey them. But it is clear that for this law of military service to be just, more soldiers must not be required than are necessary for the security of the republic; and if sufficient volunteer soldiers are present, others should not be compelled to military service, since this is not done without damage to them and their families. But clerics, religious, and sons altogether necessary for feeding a family are to be exempted from the law of military service.

There are some who hold that the law of military service is merely penal, and that soldiers who desert the army sin in nothing. But this is altogether false, since the necessity of the very existence and common good of civil society requires an army, and another more sacred obligation is also added from the oath to be furnished. L. l. 1, n. 147; l. 3, n. 616. Except: 1. If they would meet excessive danger to salvation, e.g., if means of confessing were not available, etc. 2. If returning, they would be punished with death, galleys, or other most grave penalties. 3. If the war is evidently unjust. But certainly deserters are held to no restitution whenever the law does not require others in their place, because they in no way injure commutative justice, since they inflict damage on no other person. But it would be otherwise if others because of them had to undergo the burden of military service.

To what are those bound who hired themselves for others and then deserted military service? - Of themselves they are bound to restore the price accepted to him from whom they accepted it, because there is lacking to them the reason for accepting the money, which is paid only because of the burden of military service. Yet this holds only where he who hired a soldier in his own place is exposed to the danger of undergoing military service. For with this danger excluded, although the deserter does not undergo the burden of military service, he freed the hirer from this burden of military service, which the hirer in fact intended in that hiring.

To what are those not yet enrolled in the military bound, who withdraw themselves from it without just causes? Hired soldiers who by contract and agreed wage have obliged themselves to military service are held by commutative justice to follow it. If they do not furnish it, they are held to restitution and reparation of damage. - Conscripted soldiers who corrupt magistrates or physicians so that they may be declared unfit by them are certainly held to restitution if others must therefore undergo military service in their place. For they are cooperators, as commanding, or counseling, or in some other way, in injustice; for magistrates and physicians are obliged from quasi-contract. Those who by lies, frauds, or prior mutilation deceive the magistrates, according to the more common opinion, are obliged to restitution. The reason is that other exempt young men have a strict right that such means not be employed with their detriment; and those required by lot cannot decline the burden of military service legitimately imposed on them without strict injury, since the law or lots established by law constitute a strict right, by requiring some and exempting others from military service. Bouvier, de Restitutione, q. 2, art. 2. But they say that they are not the cause, but only the occasion of the damage which those suffer, for the efficacious cause of the damage is the military law. But this is false; the law alone is not the cause of the damage. And certainly, if they had observed the law, others would not be conscripted; but the cause of the damage is at the same time the law and the fact of those conscripted against the law. Wherefore they are not held to restitution if by law all apt young men are assumed to military service, because then they themselves inflict damage on no one. But practically speaking, restitution often is not to be urged in the preceding cases, either because those who use the aforesaid frauds do not believe that they sin against justice and it would be difficult to persuade them, or because it is morally impossible to repair the damage inflicted. He who would betake himself to another country to evade military service, so that he might live there, would in no way sin, because while absent he would not be bound by the law of his homeland, since the law cannot be extended outside its own territory. But those already designated for military service who withdraw from it, or obtain exemption without true causes, if no one is to be required in their place by law, sin against legal justice; yet they are held to no restitution. Gousset 1002. Cf. here 234.

But whether it is opposed to distributive justice that only families which have sons fit for military service undergo this burden? Several affirm, and therefore they would then wish that another burden be imposed on rich families if they do not have sons fit for military service. But how can this be opposed to distributive justice, if certain families do not have sons fit for military service and therefore are exempted from this burden? Since this can happen in advance to any family, the condition of all is equal. Otherwise distributive justice would be injured not only as regards families not having sons fit for military service, but also as regards the young men themselves, of whom some are fit and others are altogether unfit for military service. And then, with military service removed, a nation certainly would not endure one day in its being, and would be absorbed by a more powerful nation which desires to extend its dominion. And, by the same reason, all taxes would also have to be abolished, because all would be unjust. For those who have nothing pay no tax.