Case XVII: Co-Operators in Theft

Three men agreed to drive out to a certain farm on which no one was living to pluck some of the fine fruit they had seen there. Upon their arrival at the farm they find that the fruit has already been plucked and stored away in the vacant house, and the house locked. A is anxious to get at the fruit and so he proceeds to remove one of the window-panes to enable him to get in. B helps him, but C’s conscience becomes uneasy, and so he protests and tries to dissuade the other two, but they persist in removing the fruit. When they have it and are about to start for home, B, too, becomes uneasy and turns his share over to A. C had demurred and had taken no part in the transaction. But now they are getting ready to return. A and B proceed to load the fruit into the wagon. If C would refuse to haul it in, A would most likely back down and leave it; at least as far as C knows, A could not get away with the fruit. But C is a good-hearted fellow, and out of human respect allows the fruit to be loaded onto his wagon, and helps cover and conceal it on the way in.

What about restitution?

Answer.—This is a case of co-operating in a theft. These three men agree to steal the fruit. They agree to act jointly in injuring their neighbor. In order to determine whether they are bound to make restitution, we must consider whether their action is (a) unjust; (b) the real and efficacious cause of the damage done to their neighbor; (c) sinful; or, as the theologians say, theologically culpable. These three conditions must be verified before anyone can be held responsible in conscience for an injury done to another. The damaging action must be truly, efficaciously, and formally unjust. When these three men agreed to jointly steal the fruit they became equally responsible for the injury they agreed to do their neighbor, because they agreed to become the real, efficacious and sinful cause of an unjust action, causing injury to their neighbor. The three are equally guilty, because they conspire mutually to do the injury, and each one renders himself liable for the whole damage that the three of them do, provided the other two refuse to repair their share. He inflicts the entire harm who concurs with others in inflicting the harm BY A COMMON CONSPIRACY. Had these three men, therefore, proceeded without more ado, to steal the fruit, each one would be bound to make restitution of a third part of the fruit, provided all three of them were willing to make restitution; but each one is liable in conscience for the whole damage, in case the other two do not make restitution, because there existed a mutual conspiracy. But before they actually steal the fruit, C’s conscience becomes uneasy, and so he protests and tries to dissuade the other two, but they persist in removing the fruit.

By protesting against the theft, and by endeavoring to dissuade the other two men from committing it, C effectually dissociates himself from A and B and ceases to be a co-operator in the theft that follows. He actually and effectively withdraws before any injury is done to the owner of the fruit. Whatever influence his original agreement to steal the fruit may have had on A and B he effectively neutralizes it by protesting against the theft before it takes place, and by endeavoring to dissuade A and B from committing it. If C had retired after this he would not be responsible for any part of the theft that A and B thereupon committed, because he was not a party to it, and could not be regarded as a causa vera, efficax et theologice culpabilis damni injusti. In this case A and B alone would have been the only persons responsible for the restitution, each one for half, in case both made restitution, and each one for the whole damage in case the other refused or failed to restore his share.

But now that the fruit is stolen and all three are getting ready to start for home, “B, too, becomes uneasy and turns his share over to A.” This does not alter the case of B. B has actually stolen the fruit together with A. He is a unjust, real, effective, and theologically culpable cause of the harm. Therefore, he must make restitution. And because there existed a conspiracy between A and B, both become responsible conditionally for the full amount of the damage; that is, on condition that the other party fail to make restitution for his share of the theft. “He who together with others is an equal cause (whether moral or physical) of the entire harm is bound conditionally to make restitution for the whole: for the whole indeed, because he inflicted the entire harm; conditionally, however, because he did not inflict it alone but together with others.” “He inflicts the entire harm who, by a common conspiracy with others, concurs in inflicting the harm, as when several conspire to despoil a house, because each influences the whole harm at least morally, provided the conspiracy is real and effective” (Noldin ii, 489).

But, unfortunately for C, after A and B have stolen the fruit, he becomes again a co-operator formalis et injustus. “A and B proceed to load the fruit into the wagon. If C would refuse to haul it in, A would most likely back down and leave it; at least as far as C knows, A could not get away with the fruit. But C is a goodhearted fellow and out of human respect allows the fruit to be loaded on to his wagon and helps cover and conceal it on the way in.” By so doing C becomes again a party to the theft and as his co-operation this time seem to be necessary to execute the theft, he becomes responsible again in solidum condicionate for the full amount of the theft; that is, on condition that A and B refuse to make restitution for their share,

“He inflicts the entire harm whose cooperation, whether moral or physical, is necessary for inflicting the harm, so that if he did not concur the harm would not be done; as if two men despoil a traveler whom one alone could not have overpowered, or if someone casts a vote necessary for an unjust sentence which the others would never have passed if he were absent or opposed. For although his cooperation is not sufficient to inflict the entire harm, nevertheless the refusal of his cooperation could have prevented the entire harm. If someone helps a thief carry away a chest which neither could carry alone, each is bound to repair the entire harm, because each is a cause of the whole effect, insofar as without his assistance no effect would have occurred” (Noldin ii, 489; Ballerini-Palmieri iii, 376).

A, B and C, therefore, are bound to make restitution for the fruit they stole, each one absolutely for his own share; that is, for one-third, and conditionally in solidum, that is, each one is liable for the whole amount, in case the other two fail to restore their share. A and B are bound, because they conspired to steal the fruit, and by their conspiracy each becomes the author of the whole damage, not, of course, in a physical, but in a moral sense. C becomes responsible conditionally for the whole amount, because, although he withdrew effectively from the conspiracy before any injury was inflicted, still the co-operation, that he lends to haul the fruit home, being necessary or required in order to accomplish the theft, and without which assistance the fruit would not have been removed from the premises, makes C also a moral cause of the whole damage, and, therefore, responsible for the whole restitution in case A and B do not restore their share.

St. Alphonsus says, regarding the practical application of the above-mentioned principles, that it is rarely advisable to oblige the ignorant and uneducated to make restitution in solidum, even though they be bound to it by strict justice, because the ignorant and uneducated do not understand how they should be held responsible for what their partners stole. In fact, says the holy doctor, it may be presumed that the injured party will be satisfied if each person restores the part he himself stole, since otherwise it is greatly to be feared that not even that much restitution will be made. (St. Alphonsus, n. 579).