Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article I. How Much Must Be Restored?
- The quantity of restitution must be measured from the quantity of the thing accepted, or from the quantity of damage inflicted, or of influence upon the injury of the neighbor.
Since special difficulties occur concerning solidarity alone, concerning it alone we will treat specially.
On Solidarity
Definition. Solidarity, or the obligation of restoring in solidum, is the burden incumbent on each cooperator of repairing the whole damage inflicted.
Division. A twofold solidarity is distinguished, namely: 1. absolute, which has place when someone is held to repair the whole damage; 2. conditioned, when individual cooperators are held to restore for other cooperators who are lacking.
- Principles. - I. Any one of the cooperators efficaciously concurring in the damage, so that this whole damage can be morally ascribed to him, is held to restitution in solidum, that is, in full, either absolutely, or at least conditionally. The reason is that each is an efficacious and unjust cause of the whole damage, and consequently must repair the whole. - Vogler, n. 342, and others commonly.
II. But to some cooperator the whole damage can certainly be ascribed in a twofold case, namely: 1. whenever his cooperation is necessary, although not sufficient, for inflicting the whole damage; for example, if you furnish a vote necessary for an unjust sentence; 2. whenever the cooperation is done from an efficacious conspiracy by which the damagers so efficaciously excite themselves to the damage that, if each one did not concur, the damage would not occur. - St. Lig., n. 579. - Lugo...
III. Whoever is the principal cause of the damage is held to restore in solidum absolutely; but the other equal cooperators, or secondary causes, are held only conditionally. The reason is that the principal agent, such as one mandating, a leader, etc., by the very fact undertakes in himself absolutely the whole burden of repairing the damage, since he himself inflicts it primarily and uses the others only as instruments for damaging the neighbor. But who ought to be called the principal cause will be said below, n. 702. But as regards secondary causes, St. Lig., Hom. apost., n. 54, deservedly warns that in practice it is rarely expedient to warn the unlearned or oblige them to repair the whole damage, although they are certainly held in solidum; because they do not easily persuade themselves that they are held to restore even the part taken away or destroyed by others.
- Questions. - Q. 1. Whether you are held IN SOLIDUM in doubt whether you influenced the whole damage?
Resp. More probably negatively with the common sentence, because a certain burden cannot be imposed for an uncertain obligation. - St. Lig., n. 579, etc.
Q. 2. Whether you are held IN SOLIDUM in doubt whether the others restored their part pro rata?
Resp. More probably negatively, if after diligent inquiry the doubt perseveres, because a cooperator is not held to anything beyond his own part except in the defect of another; and if there is doubt concerning that defect, there is doubt concerning the obligation. - Roncaglia, Salmant., etc., against others.
Q. 3. Whether an obligation of restoring IN SOLIDUM is given where cooperation indeed influenced the whole damage of an individual thing, but is not of itself sufficient, nor necessary, nor proceeded from strict conspiracy; for example, if four carry off a beam which three would also have carried off?
Resp. Negatively, because since the whole reason of the obligation is influence upon the damage, it ought not be greater than the influence itself. On the other hand, he who would concur in a part of the damage, although with others he would concur in the whole damage 1, surely would not be held to restore the whole; therefore, by parity, he who concurs partially in individual damage is held only partially to the reparation of the damage, because he posited a partial cause. - Lugo, D. 19, n. 82. - Vogler, n. 343. - St. Lig. says this is probable, n. 579.
1 The sense is: if someone by his work concurs only in part of the damage, for example, of the devastation of a garden, but concurs with others in the whole damage to the extent that the remaining part of the garden had already been devastated by others, but he destroys what he finds left intact by them; this person surely is not held to repair except the part of the damage of which he was the author.
- Q. 4. Whether you are held IN SOLIDUM if your action indeed was sufficient for inflicting the whole damage, but by no means necessary, nor proceeded from conspiracy; for example, if you set fire to another's house together with several others?
Resp. It is controverted. Not a few probably, indeed also more probably, affirm it, because where your action was sufficient for the damaging effect, in reality the whole damage must be morally ascribed to you and to each of the others. Roncaglia, Salmant., etc. - But others probably deny it, because although the damaging action was sufficient for the whole damage, nevertheless it had only a partial influence on it, since it was neither necessary, nor common with the others from conspiracy. Therefore he is not the moral cause of the whole damage. Nor does it matter that it is a matter of an individual thing, because the cooperation does not extend to the whole damage. Yet understand this whenever without your concurrence the damage nevertheless would have occurred; for otherwise even your action would have to be called necessary to it. - Sporer. - Navarr., etc. - St. Lig., n. 579 and Hom. apost., n. 55, holds each sentence probable.
- Resolutions. - 1. If one of the cooperators has repaired the whole damage, the others are freed from every debt toward the creditor; but he who restored the whole has recourse against the other damagers equally obligated, as clear reason demonstrates 2.
2 This resolution is to be understood of those cooperators of whom each is held for his own rate. See the things to be said below in article III.
- If to a thief who on account of efficacious motives is now wholly determined to steal, you suggest a new motive which adds a stimulus to him, you are not held, if the other cooperators are lacking, to repair the whole damage, because your motive did not influence the substance of the damage.
- Indeed probably for the same reason you ought to refund nothing from justice if you only induce another to inflict damage somewhat sooner or more briskly. - See Casus, n. 693.