XXIX. How Much is to be Restored

What is the quantity to be restored? - As much must be restored as the other has been injured. The reason is that by force of commutative justice equality must be preserved, and when injured it must be repaired. But it is not repaired unless an equation is made between what was taken away and what is returned. Hence, if someone is damaged because that which he actually had is taken away from him, such damage is always to be restored according to the recompense of an equal thing. But if someone has been damaged by being impeded from acquiring what he was on the way to having, it is not necessary to recompense such damage equally, because it is less to have something virtually than to have it actually; but recompense is to be made according to the condition of persons and affairs. L. 614.; St. Thomas, 2. 2, q. 62, a. 1, 3, 4, 5.; C. A. 1323, 1411, 1412.; C. B. 249 seqq., 272.

What is solidarity? Solidarity, or the obligation of restoring in solidum, is the burden incumbent of repairing the whole damage inflicted. For the reason for restoring, or repairing damage, is because one was the cause of the damage. Therefore he who was only partially the cause of the damage is held only to a partial restitution or reparation of the damage, namely in that part in which he himself was the cause of the damage, whether he himself alone injured, or whether others also partially injured separately from him, and then each one is held for the damage inflicted by himself. But he who was the cause of the whole damage must repair the whole damage. Therefore, in order that one be obliged in solidum to restitution or reparation of damage, he ought to have been the efficacious cause of the whole damage. But if only he himself is the efficacious cause of the whole damage, he indeed is held in solidum or to repairing the whole damage by himself alone, but with no solidarity with others. But if, together with other cooperators, he was the cause of the whole damage, then solidarity with others is present, and together with others he is held in solidum to repairing the whole damage. Together with other cooperators; nevertheless, if several, but separately one from another, were an adequate cause of the whole damage, each is held to repairing the whole damage, which however is to be divided equally among all if all restore; and so also all are held in solidum. But if one placed an inadequate cause of damage, e.g., wounded an ox non-lethally, and another an adequate cause by killing the ox, the former is held concerning the wounded ox, the latter concerning the killed one; the former concerning the damage inflicted by himself, the latter concerning the whole, or in solidum. - C. A. 1391, 1302.; C. B. 840.

When is someone the total cause of damage? - Someone can be the total cause of damage either morally, by moving others to inflict damage, or physically, by inflicting and executing the damage, C. A. 1301. Someone is the physical total cause of damage when he places an action necessary and sufficient for the whole effect, as if someone fires upon another in order to kill him; when he places an action sufficient, although not necessary, actually influencing the whole effect, as when two at once fire upon another and kill him; when he places an action indeed insufficient, but necessary, as if four cannot carry away a beam, a fifth approaches, and they carry it away.

The reason is that in all these cases one influences the whole damage by his action. Someone likewise is the moral cause of the whole damage when by mandate, counsel, etc., he moves by an influence necessary and sufficient for inflicting the whole damage; when, together with another or with others acting morally, he concurs by a moral influence of itself sufficient for the whole effect, although not necessary, yet actually influencing the whole effect, as if several are at once commanding, counseling, etc., and any one of them by his mandate, counsel, etc., suffices for the execution of the whole effect, and actually moves efficaciously to that execution; when he concurs toward the whole effect by an influence necessary, although not sufficient, as if someone shows the sole way of executing the thing.

The reason likewise is that in these cases one morally influences the whole effect. Someone is the cause of the whole damage, whether physical or moral, in the case of a common conspiracy, although he concurs toward the damage by only a partial influence. For with a moral conspiracy and unity of several among themselves standing, each one participates in the influence of the others, and so becomes the cause of the whole.

Someone is not the cause of the whole damage, whether physical or moral, if he is not sufficient for the whole effect, nor is necessary for it, because without him the whole effect would still follow; as if four carry away a beam, and a fifth approaches, helping them, with the case of conspiracy excluded, since the other approaching has an influence merely partial, and since no conspiracy is present, he is not morally joined to the others.

But the question is whether one is the cause of the whole damage who influences it by an influence sufficient for the whole damage, but not necessary, with the case nevertheless excluded that he influences at once together with others; e.g., if someone, without any conspiracy with others, sets fire to another's house, which others had already set on fire, gives counsel already given by others, etc. Others probably affirm, because since the influence is sufficient for the whole damage, then he is the cause of the whole damage, since he influences the whole. Others more probably deny, because since that influence is not necessary for the whole damage, and is added to another influence, the influence in reality is only partial in the whole damage, which would nonetheless have occurred without such concurrence. L. 579.

Whether you are held in solidum in doubt whether you influenced the whole damage? Resp. Negatively, because a certain burden cannot be imposed for an uncertain obligation. L. 577. Cf. C. A. 1303.

Whether you are held in solidum in doubt whether others restored their part pro rata? Resp. More probably negatively, if, after diligent inquiry has been made, the doubt perseveres, because a cooperator is held to nothing besides his own part, except in the defect of another; and if there is doubt about that defect, there is doubt about the obligation.