XXVII. On Restitution from Unjust Cooperation

Whether restitution is owed from unjust cooperation, and how many kinds are there? - Restitution must be made from unjust cooperation. For there is not always only one cause of damage given, and a cooperator in unjust damage to a neighbor is truly its cause. Hence all those who in any way are an influencing and efficacious cause of the damage that followed are held to restitution; and those who, obliged by office and obligation of justice to guard against damage, did not guard against it. But cooperation in damage to neighbor can be done in nine ways, of which the first six are positive, the later three negative. All are contained in the following verses: Command, counsel, consent, flatterer, recourse, participant, silent, not preventing, not revealing. St. Thomas, 2. 2, q. 62, a. 7; C. B. 830.

What of the one ordering and of the one commanding? - One ordering is he who by his own authority compels another to execute something; but one commanding is he who, by free agreement, commits to another something to be executed, and thus, or with a wage promised, induces him to act, so that he may inflict damage on another in his name. - The one ordering or commanding is bound to repair every damage ordered and inflicted by force of the order or mandate; but otherwise if he only approves damage done in his name. The reason is that in the former case he efficaciously influences the damage. But as regards the latter case, mere approval of a deed pertains nothing to the reason of mandate; and therefore he who merely approves something already done neither ought nor can be called one commanding. L. 558; St. Thomas, 2. 2, q. 62, a. 7; E. M.

Whether one commanding is bound to restitution if he revoked the mandate before the damage was inflicted? Resp. Negatively, if the revocation becomes known to the mandatary before execution of the mandate; but otherwise if it in no way or too late becomes known, because in the former case the mandate vanishes and does not influence the damage; in the latter it does not vanish and does influence. L. 558.

Whether one commanding is held concerning damages which come to the mandatary in the execution of the mandate? La-Croix with others affirms, because one commanding, by ordering damage, is judged to take upon himself the obligation of preserving the mandatary unharmed. But it seems that this must be restricted to the case in which the one commanding coerced another by fraud, deceit, force, or fear, unless the damage is altogether fortuitous, having no connection with the commanded act. Otherwise the mandatary seems voluntarily to have taken upon himself the whole burden and its consequences; and unless a pact about indemnity preceded, the one commanding will be held not from justice, but only from a certain equity. But not even from equity, if knowingly and willingly he accepted that dangerous mandate. - Gousset 950.

Whether one commanding is bound to repair damage which the executor from invincible error inflicted on another? - Resp. Negatively, because the true cause of the damage is the error of the mandatary. Nevertheless, it must be excepted if perhaps it was too difficult to avoid the error. For although all agree that the one commanding is not held concerning damages which the mandatary inflicted beyond the mandate, yet they limit this if it was in the power of the mandatary to preserve the limits of the mandate. Therefore, also in the case if it was not morally possible to avoid the error, the error must be imputed to the one commanding. C. B. 278.

Whether a superior, ratifying damage, is to be compared to one commanding? Resp. Negatively, if the ratification follows the execution of the damage, because then it cannot influence the damage. But otherwise if it precedes the damage, or regards the proposed infliction of damage and truly influences it. L. 558.

What of one counseling? One counseling sins against justice whenever knowingly and willingly he furnishes an iniquitous counsel by which another is efficaciously induced to inflict damage unjustly, because the damage is imputable also to him. This is also established from proposition 39 condemned by Innocent XI. Hence one counseling who in good faith gave damaging counsel, once the truth is known, is bound to retract it, and indeed from justice. But one counseling is not bound to restitution if the executor was already determined of himself to damaging, so that even without that counsel he would have inflicted the damage; because then the counsel did not efficaciously influence the damage. But it is otherwise if the executor was also efficaciously moved by that counsel, because then it is truly an efficacious con-cause of the damage. L. 561, 562; St. Thomas, 2. 2, q. 12, a. 2, ad 4; a. 7; Gousset 952; C. A. 1300, 1315; E. M.

Whether one counseling is bound to restitution who revokes his counsel before the execution of the damage? Resp. Negatively, if the counsel was naked, that is, simple, because by revocation the whole force of the counsel is removed.

If the counsel was clothed, or supported by motives, there is controversy. Probably also negatively, provided other motives were employed in the retraction, at least equally efficacious, because then the damage is only from the malice of the other, and the counsel is the occasion of the damage but not the cause. Thus Azor, etc., against others whose opinion St. Lig. says is more probable. Except if to a thief determined to inflict damage you showed the way of entering the house which otherwise he would not have found, or something similar; because your cooperation then was truly efficacious, especially if you foresaw that the thief would not change his depraved plan, unless nevertheless you warned him to whom the damage threatens, to which in the case you are bound, as the doctors cited by St. Alphonsus, 559, judge, if without equal or greater damage you can warn the one to be damaged about the impending damage. L. 564; Gousset 955.

Whether one counseling a lesser evil to avert a greater is bound to restitution? Resp. Negatively, if the matter concerns the same person, because the counsel favors him, far from harming him; but otherwise according to many, if the matter concerns another person of whom the damager was not thinking, because this person is deservedly judged reasonably unwilling. L. 565, 577. Yet others hold the contrary, led by the reason that this is not to induce to a lesser evil, but to remove from a greater. Vasquez, Op. de Scand., art. 1, dub. 2, n. 14; Turrianus, de Fide, Spe, etc., disp. 95, dub. 6.

What if another is already determined to damage, e.g., to killing, and you persuade only the mode, namely that he kill by poison, not by sword; in that place, not in another, or at that time? "There is a twofold probable opinion. The first says that you are bound to restitution, because by persuading the mode you concur to the substance of the damage; but by persuading that the damage be inflicted sooner, you are the cause of the whole damage, since the other could have changed his mind during that time.... The second opinion absolutely excuses from restitution, provided it is certain that the other would not have changed his depraved mind.... The reason is that the one counseling then is not an efficacious cause of evil as to the substance of the damage; and this is more probable to me.... And thus likewise they most probably excuse from restitution him who materially cooperates in damage to the owner, namely when the other would still certainly have inflicted the damage without his cooperation, e.g., if someone holds a ladder for him who would climb even without help." L. 563, 576.

Whether one persuading damage from ignorance, but with grave fault, is bound to restitution? - If he gives counsel from his state or office, e.g., of advocate or confessor, he is bound, because then he is truly the unjust and efficacious cause of the damage. If he is not such a person, he is not held toward the one asking counsel, unless deceit is present, or he affects great expertise which he does not have; for that one ought to impute it to himself if he is deceived, since he asks counsel from an unskilled man. But he is held toward a third person if he foresees that damage will follow to him; for one inducing another into an error harmful to him is the unjust and efficacious cause of the damage. - But one giving inculpably a counsel harmful to another is afterward bound, when he adverts to the matter, from justice to do as much as he can, yet without great inconvenience, lest damage occur. L. 564; Gousset 954; C. A. 1299, 1300, 1315.

Whether one knowingly counseling evil to another is held also concerning damages which the latter suffered by executing the depraved counsel? - Resp. Negatively, of itself. The reason is that he inflicted no injury on him, since no injury is done to one knowing and willing. Yet it is otherwise if the one counseling so circumvented the executor by frauds or sophisms that the latter did not advert to the iniquity of the counsel. Cf. n. 1398.

Whether one counseling is held primarily, or only secondarily, to restitution? - Of himself, he is held only secondarily, because the executor is the principal agent, as one who is judged, speaking of himself, to act in his own name and for his own utility. L. 560.

What of one consenting? - One consenting is held to restitution whenever he knowingly and freely emits a vote or sentence on which the violation of another's right directly depends; that is, whenever he gives efficacious consent to the damage or injury of neighbor. Efficacious consent: because if the consent did not efficaciously influence the injury, he would not be held to restitution, since he would consent affectively indeed, but not effectively, to the harm. Likewise if, with fraud or special pact excluded, he by his vote impeded another from attaining a good to which he had no right. - He is not held concerning damage who authentically revokes the sentence or vote previously given before the wickedness is consummated; nor one voting in good faith, although when the error is detected he is bound from charity, indeed from justice, to revoke his vote, if by time this is permitted to him. - L. 566; St. Thomas, 2. 2, q. 62, a. 7.

Whether one consenting, who gives an unjust vote, is bound to restitution if there are not lacking other votes already sufficient for the damage?

It is certain that all consenting are equally bound to restitution if they gave their votes by agreement, since, once the conspiracy is entered into, there is one moral action of all. It is also certain that all consenting contract the obligation of restoring when they cast their vote at the same time; because since none was then prior or posterior, the sentence resulting from the sum of votes is deservedly attributed to the individual voters. - It is also certain that those are not to be excused from restitution who first give a vote before the number is completed, even if they foresee that others who consent will not be lacking, because they truly influence the damage. For although without them it would have been inflicted, nevertheless through them it is in fact partially inflicted. But whether, with conspiracy and simultaneous casting of votes excluded, the last voters can be excused from the obligation of restoring when the number of votes required for the definition of the business has already been completed, is disputed. Several grave theologians affirm, because voters of this kind are in no way the cause of the damage, since it has already been sufficiently prepared and determined by others. Others deny, because since a sentence is never judged perfect unless it is concluded by the casting of all votes, the last influence the unjust sentence no less than the first. Lugo d. 19, nn. 17, 22; L. 566, 574.

Whether he contracts the obligation of restoring who does not cast a vote when he can cast it? Resp. Negatively, when the right of casting a vote has been conceded to someone as a mere grace or favor to him, because no one is compelled to use a privilege, and consequently here he inflicts no injury on another. - Resp. Affirmatively, if it had to be given from office, and its omission were the efficacious cause of grave and unjust damage. Cf. n. 705.

In present civil society, Ministers, Senators, Deputies, and others of this kind have the vote from an office and public function undertaken. Likewise citizen electors, who are endowed with certain qualities required by law, have the vote from the privilege of the law. A right of voting of this kind is to be exercised for the common utility, from legal justice, which looks to the public good of the community. Hence this privilege and right of voting, by reason of the conditions required by law, is at the same time an office or obligation of voting by reason of the public good, from legal justice. If Deputies before their election announce a program, e.g., of defending divorce, of expelling religious orders and usurping their goods, etc., are not their electors held for the damage as quasi-mandators? Do not Deputies publicly assert that they execute the mandate of their electors? But if electors abstain from casting a vote, they can indeed sin against legal justice; nevertheless they are not held to restitution, because they are not held to voting from commutative justice.

What of the flatterer? - A flatterer is said to be one who by praising, flattering, or blaming moves another to inflict damage. He who has induced another to inflict damage, by proposing praise, or otherwise the disgrace that will follow, is held for the damages. For such cooperation has the character of counsel, since, namely, motives for acting, of themselves commonly efficacious, are proposed. Wherefore the flatterer is subject to altogether the same obligations as one counseling. - Those who represent to a man affected by injury the greatness of this injury in such a way that, moved by it, he takes revenge, are held to restoring, provided they adverted at least probably that damage would follow. But he is not held to restitution who approves or ratifies a deed already perpetrated, unless he is the cause why restitution is not made, or new damages are inflicted. L. 567.; St. Thomas, 2. 2, q. 62, a. 7.; E. M.

What of recourse, or of one harboring, or providing refuge?

One harboring, namely he who knowingly and freely provides refuge and security to a robber, is held for the damages arising from this. For in this way he efficaciously and unjustly determines, or makes firmer, the will of the thief in the purpose either of stealing, or of not restoring, or of stealing again. In like manner merchants, and especially innkeepers, and all others who receive stolen things, the thefts of sons of the household, servants, etc., or conceal them, or even are accustomed to claim them for themselves in payment for merchandise, drinking bouts, etc., are held to restitution. - Among those harboring are not to be counted those who receive at home friends or blood relatives who are malefactors; nor those who conceal them under hope of amendment, or show them the way by which they can flee, when they are sought for prison or for death. L. 568.; St. Thomas, 2. 2, q. 62, a. 7.; C. A. 1314.

What of one participating? - A participant is twofold: one in the prey, another in the damaging action. One participating in the prey is held to restitution of the part which he received and keeps with himself. For he is a possessor in bad faith of another's thing. One participating in the damaging action, or concurring with another, whether immediately or proximately, in physically inflicting damage, is held to restitution. For immediate cooperation, e.g., carrying off money together with a thief, helping him, is cooperation in the damage itself. But proximate cooperation is that which already begins to injure, e.g., breaking open the door of a house with a thief, and therefore contains injury and brings in the obligation of restitution; namely, unless fear of a graver evil excuses. One participating in the damaging action only mediately or remotely is excused from restitution. For mediate and remote cooperation contains no injury, and is forbidden by charity alone. Nor is it forbidden even by charity if the act in itself is not intrinsically evil, and one furnishes it to avoid grave damage. If the one inflicting damage would certainly have inflicted it in the same way without another's cooperation, the cooperator is excused from restitution, because cooperation is not understood if superfluous work is furnished; for instance, holding a ladder for one climbing, who without such help would have climbed well enough by himself. L. 563.; Billuart diss. 8, art. 13.; St. Thomas, 2. 2, q. 62, a. 7.; L. 571.; C. A. 1313.

Whether immediate cooperation to damage of neighbor in matter of justice is ever licit? As regards damage to life, it is never licit to cooperate immediately, not even with danger to one's life, because it is never licit directly to kill an innocent person. As regards damage to members, likewise it is never licit, even to avoid death, to concur immediately in another's mutilation, unless perhaps for averting his death; because then it is rather to save life for him. - As regards damage in goods of fortune, three cases are commonly admitted in which, from grave fear, cooperation is licit, for the reason that the owner is not judged reasonably unwilling: namely, 1. if the cooperator can and wills to repair the damage, when perhaps he is held to this; 2. if grave damage would equally and certainly have been inflicted by the principal agent without the cooperator; 3. if the damage is slight with respect to the owner: for then from charity he ought to bear it with an even mind.

But it is controverted whether it is licit for you to cooperate immediately in grave damage of neighbor from very grave fear, e.g., of death, if you cannot or do not wish to repair the damage. Some deny it, because the act seems intrinsically evil, since it injures the right of neighbor, who deservedly is supposed to be reasonably unwilling. And indeed the injured person is not held to consent to this cooperation either from justice, which does not oblige one to save the life of another with so great a burden to oneself, or from charity, which likewise does not urge with so great an inconvenience. Yet others probably affirm it. For one placed in extreme necessity can secretly take that by which he may avoid death, because then all goods are common.

Why therefore will he, to whom death is threatened, not be able to cooperate in the secret taking of the goods of neighbor, in order to rescue his own life from proximate danger? Can the owner be reasonably unwilling? Moreover, with the will of theft excluded, that material action, e.g., of taking and carrying away money, is in itself indifferent. - L. 563, 571.; H. A. tr. 10, n. 56.; St. Thomas, 2. 2, q. 78, a. 4.

What of the silent one, the one not preventing, the one not revealing, or of negative cooperators? Negative cooperators are those who do not impede the damage of neighbor, when from pact or from office they are held to impede it. They are commonly called the silent one, the one not preventing, the one not revealing. The silent one is he who does not speak, does not cry out, does not forewarn the one to be damaged, while he is held to this from office or contract. One not preventing is said to be he who, while damage is being inflicted, does not resist, does not guard the thing, although he ought to furnish this from justice. One not revealing is called he who, after damage has been inflicted, does not denounce the damager to the injured owner, or to a superior, although from office and therefore from justice he ought to denounce him.

No one by reason of damage not impeded is held to restitution unless he is held from justice to impede it; for he who is not bound to impede damage from justice is obliged from charity alone, the violation of which does not oblige to restitution. All who are obliged from contract, or from office, to impede the damage of another, if they culpably neglect this, are held to restoring; for they ought from justice to impede damage. Therefore, if they omit it, they sin against justice, and consequently are obliged to repair damages. In order that one cooperating negatively be held to restitution, it is necessary that he could have impeded the damage without grave inconvenience; because neither a contract nor positive law is usually accustomed to oblige, at least for the most part, with a grave burden. Nor likewise is he held who does not prohibit, because he would attempt this in vain. Here belong those who hire out their work to others for impeding damage, such as guards of fields, forests, etc. Those also are held to compensation of damage who ought to be over others in some office, if those others cause damage in it, so long as they remain under their vigilance; those who choose and admit incapable or dishonest persons in the management of some business, for by that very fact they assume upon themselves the damages which those persons can inflict in exercising that office; those who inhabit buildings, if someone from their household under their custody, e.g., if a boy not yet having attained the use of reason, throws something into the public way with damage to passers-by; those who do not impede the damage of others from their own thing, e.g., from their animal running through another's field and doing pauperies, from their buildings collapsed by ruin, etc. For from commutative justice each one is obliged that damage not be inflicted on others through his things just as through his actions. Namely these are held from quasi-contract, from quasi-delict. C. I. 1151. seqq.; C. G. 1328. seqq.; C. A. 1309, 1320.; C. L. 2380, seq. 2394. seqq.; C. B. 831, 839, 841.; L. 573.; St. Thomas, 2. 2, q. 62, a. 7.; Cf. 683. "Pauperies is damage given without injury of the doer; for an animal, which lacks sense, cannot have done injury." L. Si quadrupes 1. Si quadrupes pauperiem fecisse dicatur Dig.

Whether a confessor is held to restitution if, from grave negligence or ignorance, he omitted to admonish a penitent concerning restitution to be made? Resp. More probably negatively. For although from office the confessor is held to instruct the penitent well, and therefore sins gravely if he omits this when it is necessary, nevertheless he is not held to this from an obligation toward a third party. Except if the silence of the confessor is equivalent to positive approval, e.g., if, having been questioned, he avoids an answer in such a way that the absence of obligation is suggested to the penitent. L. 578.

Whether a counselor is held to restitution if, through omission of a vote, he did not oppose an unjust sentence? Resp. Affirmatively, if he ought to cast a vote from office, because an office is to be fulfilled from justice, at least commonly speaking, and with a just cause excluded, and unless one sees that he will accomplish nothing by his vote. Resp. Negatively, if he has the right of voting from mere privilege, or from mere favor; or if he could cast a vote only from mere charity; for then he can omit the vote without injustice. Lugo d. 19, n. 61 seq.; L. 574.

Whether he is held to restitution who accepted money from a thief in order to be silent, if he ought not from office to cry out? Resp. More probably negatively, at least of itself. The reason is that he could be silent at the prayers of the thief without injustice, since he is not held from justice to cry out. Therefore, by parity, he can be silent on account of gifts promised or handed over without injustice. But it would have to be said otherwise if he accepted money in order to observe whether anyone was coming; because then he would cooperate positively in the theft. L. 571.

Whether guards not denouncing damagers are held to compensate all damages and also to pay the fine? Resp. to the 1st: Affirmatively, of itself, because they are appointed to impede damages. Except if there is question of things of lighter moment, for which, from custom and the presumed will of the owner, secret admonition suffices. Resp. to the 2nd: More probably negatively, on account of the contrary practice, with which common sense agrees. But the reason is that, unless something else was expressly agreed, these men hire out their work that the owners not be affected by damage, not that they become richer. The same is to be said of a judge not exacting a punitive fine. For the judge is held to this by reason of vindicative justice, not to enriching another or the treasury, which is altogether accidental. Nevertheless, if a denunciation of the damager has been made before the judge, he is held to punishing and to procuring reparation of the damage. L. H. A. tr. 12, n. 73. Cf. here 1394.