Article II. On Unjust Damage

657. • An unjust damager is he who injures another's right and harms the neighbor in his goods, yet does not thereby become richer.

A twofold fault is distinguished by which damage can be inflicted, namely theological fault and juridical fault. - Theological fault is that which includes an offense of God, that is, formal sin, whether mortal or venial. - But juridical fault is an omission of diligence from which damage comes to another, whether it is a formal sin or not. - St. Lig., n. 549.

But juridical fault, from the common interpretation of Roman Law, is either broad, slight, or slightest. Broad fault is the omission of diligence which men commonly are accustomed to apply in similar business. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to apply. The slightest fault is the omission of diligence which only the most prudent and most diligent are accustomed to apply. But this distinction of faults is not expressly commemorated in French law ¹.

¹ It is supposed, however, when for diverse circumstances of the thing the same code requires lesser or greater diligence. See art. 1137 and art. 1927, compared with 1928.

658. Principles. - I. An unjust damager is held to restore 1. the whole equivalent of the thing damaged; thus, for example, if someone culpably burns another's house, he must repay its whole price to the owner; 2. the whole equivalent of damages foreseen besides the damage of the thing, if any have come from it. Hence, for example, if a craftsman is compelled for some time to omit his customary work because you destroyed the instrument necessary to him, you are held to compensate him not only for the value of the instrument, but also for the ceasing profit.

The reason for this principle is plain from what was said, n. 532 and 626. For the injured owner must be made wholly unharmed. But for this it is not enough if the damager pays him the intrinsic price for the thing, when the other has suffered other detriments from the privation of his thing; since he would not recover all that he lost from the unjust damage. Nor is it an obstacle that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility received from another's thing, but from the damage inflicted.

659. • II. 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, an efficacious cause of the damage, and theologically culpable; that is, that it be unjust truly, efficaciously, and formally.

1. Unjust. For the obligation of restitution necessarily supposes the strict right of another violated. But strict right cannot be violated except through an unjust action, or one opposed to commutative justice, according to what was said above, n. 532, etc.

2. An efficacious cause of the damage, namely 1. that the action influence the damage through itself, so that this damage is truly judged to follow from it; 2. that it can be imputed to such an agent. The reason for each is clear. For an action cannot be imputed to anyone unless it is his own; nor can the detriment of an action be ascribed to anyone unless his action was the true and efficacious cause of the detriment physically and morally.

But this happens when an action is posited which from its nature, or from the circumstances, has at least a probable connection with the damage. Hence 1. a merely occasional cause of the damage is not sufficient for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on occasion of a theft perpetrated by you, another is accused and condemned, you are held by no obligation of repairing his damage. Nor 2. is an accidental cause sufficient for restitution; for this is that which, considered in itself and with the circumstances attended to, does not have a probable connection with the event, and therefore must not be called an efficacious cause. Hence, if you hand a sword to Titius without probable foresight of his abuse of it, you are not guilty of injustice if he commits homicide with that sword.

3. Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless an injury was committed in the same forum; nor can conscience be bound by an obligation of repairing an injury which it itself did not bring about. Otherwise even sleepers and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. But there is no injury in the internal forum where there is no theological fault; for to injury there is required a will of harming at least indirect, or some foresight, at least confused, of unjust damage. Therefore, etc. - St. Lig., n. 551 and following; Hom. apost., n. 39 and 41.

660. • III. Nevertheless even from merely juridical fault there can be an obligation of restoring in conscience after the sentence of a judge. For a just sentence of a judge must be obeyed; otherwise laws would not provide for public security, and would be empty. But the sentence of which we are speaking is just. For that law is borne for the common good and tends to make men more cautious, lest they inflict damage on others. Besides, before every event it favors all citizens equally. Therefore no one can complain about it. Therefore, etc. Thus commonly. - Billuart, diss. 8, art. 4. - St. Lig., n. 554.

661. Questions. - Q. 1. Whether theological fault is required for inducing an obligation of restitution for damage inflicted on another's thing, which was destined by some CONTRACT, for example, of leasing, deposit, or loan, etc.?

Resp. There is a twofold probable sentence. The first sentence, which appears more probable, affirms absolutely that theological fault is required. The reason is that merely juridical fault does not suffice for inducing an obligation in conscience, as is clear from what was said above in principle II, unless a special pact has intervened. But concerning such a pact there is no proof at all; indeed it is not presumed that the contracting party wished in conscience, under grave obligation, to undertake so great an obligation with only juridical fault. - Thus Lugo, D. 8, n. 106. - Lacroix, n. 177. - Roncaglia; and St. Lig., n. 554, calls this sentence very probable ².

² Card. De Lugo, whom St. Alphonsus follows (ibid., n. 554), although he admits (De Iust., Disp. 8, n. 100) that even without theological fault there can be an obligation of repairing damages on account of slight or even slightest fault, whether this happens by force of an explicit pact among the contracting parties, or by authority of laws which establish the same by way either of legal penalty, or conventional penalty, or insurance, nevertheless denies with others (ibid., n. 102-104) that such an obligation, considered by natural law alone, is present. Indeed he adds (ibid., n. 106-110), from common sense, that neither is this the intention of the contracting parties, nor do the laws according to the common interpretation exact it.

Nevertheless he also adds other things (ibid., n. 110-113), by which it is shown that the practical conclusions of the second sentence do not oppose the preceding sentence. This indeed is nothing wonderful, because Antoine did not advert to it. For what good would you seek or expect from such a one, where solid doctrine and criterion are needed? And indeed, by what pact does Antoine (De Iust., Cap. 3, q. 5, Resp. 4) reconcile these two things, namely that someone omits the diligence due from the nature of the thing and from a pact at least implicit in guarding another's thing, and nevertheless is wholly free from theological fault? Therefore Lugo skillfully warns that, setting aside the case of forgetfulness or inadvertence, in which, short of theological fault, at least grave, there is no obligation of restitution in the forum of conscience before the sentence of a judge, it never happens that there is an obligation of restoring from juridical fault which is not joined with theological fault, and indeed with one equally grave for imposing the burden. The reason is sufficiently manifest, because negligence in the office undertaken of guarding another's thing is, from its genus, mortal fault.

Nor should you object that mortal sin is conceived with difficulty when the juridical fault is slight, and much more if it is the slightest. For slight or slightest juridical fault can have place when someone is held by force and nature of the contract to apply that diligence which is fitting to a business demanding more exact or most exact diligence, and which for that reason, with the nature of this business considered, can be called common, since it is commonly required for such a business. Therefore if the nature of the contract imposes the obligation of the most exact diligence, it is nothing wonderful that its omission imports grave guilt.

Thus indeed Card. De Lugo, whose doctrine St. Alphonsus both embraces and adorns with this encomium (Lib. 3, n. 552): Thus, he says, the most learned Lugo, who after St. Thomas can easily be called princeps among the other Theologians, and not rashly; since in discussing doubts this Author, often with no one going before him, places the sickle so to the root that the reasons which he himself brings forward can scarcely be solved.

The second sentence denies that theological fault is necessary in order that someone be subject to the burden of restitution, if you except the case in which the contract yields to the sole utility of one of the contracting parties, for example, of him who received the thing as a loan, etc. The reason is that when another's thing is granted to someone for his utility, equity demands that he guard it very diligently. Hence there seems to intervene an implicit pact by which the holder of the thing obligates himself to guard it with special care, or to repair the detriment which the thing could undergo from omission of this care. - Antoine, quest. 5. - Collet, c. 2, art. 4, etc.

662. • Q. 2. Whether theological fault is required for the obligation of restitution on account of damage inflicted on another in fulfilling an office, or in observing a QUASI CONTRACT? For example, if a physician from inculpable error has given a harmful remedy to the sick person?

Resp. More probably affirmatively, as in the preceding question. The reason is 1. because an obligation of restoring on account of merely juridical fault in an office, or in a quasi contract, cannot be proved either from natural law, or from positive law, or from the convention of the parties; 2. because such an obligation would be harmful to the public good; for thence it would happen that upright and God-fearing men would be kept away from undertaking the affairs of others, and also from public offices. - St. Lig., n. 555. ³. - Billuart, diss. 8, art. 7. - Lacroix, n. 184, and Antoine himself also, quest. 4.

³ St. Alphonsus namely, after Lugo (De Iust., Disp. 8, n. 93), holds as probable that these are held only from broad juridical fault, and grave theological fault.

But what the same St. Alphonsus adds (same, n. 555) with Laymann, that he who accepts a stipend is held from slight fault, signifies nothing except that this person is held to greater diligence; and therefore St. Alphonsus condemns him of grave fault if he does not apply this.

Yet the Doctors commonly except one case, says Lugo (ibid., n. 90), namely, they oblige to repair damage from the slightest fault, when someone professes himself to be most diligent and most skilled, and offers himself as such to someone seeking not a mediocre but a most diligent artisan. Yet he limits this doctrine unless he receives only the common stipend. But the reason of the resolution is plain from what was premised in the preceding Note.

Q. 3. Whether he is held to restitution who indeed inculpably placed the cause of damage, but afterwards did not impede it, although he could have impeded it?

Resp. Affirmatively. The reason is that each one is held from justice to prevent his action from harming the neighbor; therefore he is also held to prevent the evil following from his action from persevering. - Thus commonly. - St. Lig., n. 564.

Hence 1. he who inculpably set fire beneath another's house, when he adverts to the danger of fire, is held from justice to impede it, if he can; 2. likewise the 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 held afterwards, when the error has been known, to correct it; and if he does not do so, he sins gravely and is obligated to the reparation of all damages which come from this.

663. • Q. 4. Whether damage following from a cause indeed culpably placed, but already retracted when the damage is inflicted, must be repaired?

Resp. Affirmatively, at least if that damage was determined and foreknown in species. Thus, for example, if someone voluntarily gave poison to another, and afterwards cannot impede its effect, however much, repentant of the deed, he may wish it, he will be held to repair the damages coming from the homicide. The reason is that he who placed the cause of the damage always continues to influence it efficaciously. - Thus commonly ⁴.

⁴ Hence it happens that retraction does not even prevent this, namely that the effect afterwards perhaps following induces irregularity or some censure. Suarez had already adverted to this (De Peccat., Disp. 3, Sect. 4, n. 7), and Lugo afterwards (De Poenit., Disp. 16, n. 445) hands it down as the common sentence: However much, he says, the past will may in fact be retracted, still, if the effect of death afterwards follows, he who had given poison will incur irregularity or excommunication, according to the common sentence of nearly all, as if the will had not been retracted; because, namely, by that retraction it is not taken away that the effect followed as voluntary..., whence it absolutely denominates him a homicide; otherwise it would not render him irregular.

Nor is the reason valid which St. Alphonsus reports against this from the Salmanticenses (De Cens., Cap. 1, n. 155; Lib. 7, n. 40), namely that censures are not borne except against the contumacious; but he is not such who has already retracted the evil will. For it is answered that the contumacy of will which is required for incurring censures is that by which someone knowingly and willingly transgresses the law, not the lack of retraction before the ultimate effect; for a censure does not punish the sin of an evil will persevering up to the consummation of the effect, but the sin of a will inflicting death through the positing of a cause, although it was expedient and wisely provided by the Church that a penalty of this kind not be incurred unless the effect followed, lest, namely, on account of the uncertain event of the crime, the censure be uncertain, and lest it happen that one be regarded as excommunicated on account of homicide who afterwards was detected as not guilty of homicide, since death had not followed.

Q. 5. Whether damage must be repaired which has indeed been inflicted by accident, but while applying oneself to an illicit work?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even in a confused way. Nor does it matter that the action was illicit; for this pertains nothing to the account of justice. Thus a Cleric who, while applying himself to hunting against the prohibition of the Church, kills a man instead of a wild beast, is no more guilty of injustice than a layman who had done this. Indeed damage inflicted by accident need not even be repaired, even if it happened on the occasion of an unjust action, because it has no connection with that action. Hence he is not held to restitution who kills Titius, whom he did not at all see nor know to be present, while he was directing a gun at Caius. - Thus very commonly. - Vogler, n. 170. - Lugo, D. 8, n. 72 and 82. - St. Lig., Hom. apost., n. 39.

664. • Q. 6. Whether you are held to repair damage which you brought upon someone from error, while you intended to harm another; for example, if you burn the house of Caius, which you think is the house of Titius your enemy?

Resp. It seems that it must be affirmed. For in that case all the conditions required for urging restitution are present, namely an unjust action, an efficacious cause of damage, and theological fault. Nor should you say that your action is not unjust relatively to Caius, whose damage you did not will; for you intended to destroy that thing, wholly determined. But by destroying it you undertook the burden of repairing that same thing. But it matters nothing whose it may be; for the question is not about the name, but about the thing. Therefore the error does not affect the substance of the act, but something merely accidental. - Thus commonly, as St. Lig. admits, although he dissents. - Vogler, n. 202. - Bonacina. - Sanchez. - Busemb., etc.

Some nevertheless deny with St. Alph., n. 629, namely Lugo, D. 17, n. 75. - Lacroix, n. 200 and following. - Their reason is that the action was not voluntary toward the damaged person, since it proceeded from inculpable ignorance of his right. But from what has been said this reason seems to have little force ⁵.

⁵ ** The VV. (p. 923 in note) object that the opinion of St. Alphonsus rests on this unshaken principle: In order that you be held to restitution, it is required and suffices that your damaging action be at once affectively and effectively, or formally and materially, unjust; if either of these is lacking, the obligation of restoring ceases.

Resp. St. Alphonsus (Lib. 3, n. 556), with Busembaum, thus defines and distinguishes material and formal injuriousness: Damaging injuriousness is twofold, namely material, as, for example, when someone destroys, accepts, or retains another's thing in good faith, that is, judging probably that this is licit for him, or that it is his own; formal, by which someone destroys, accepts, or retains another's thing in bad faith, that is, when he knows or can and ought to know that this is not licit for him and that the thing is not his own. See Less., Laym., Bonacin. But, so that we may insist on the example which both St. Alphonsus (Lib. 3, n. 629) and the VV. use, whoever burns and destroys the house of a friend, thinking that it is an enemy's, certainly does not fail to know that the house which he destroys is another's; and this is true even if it is not the house of him whose he believes it to be. Therefore knowingly and willingly he burns and destroys a thing which he knows is not his own. But from the definition this is not material but formal damaging injuriousness.

But the argument which is commonly brought against this (see St. Alph. and the VV. in the cited places), namely that from the killing of a friend who was thought to be another, namely an enemy, deceit is absent, because in no way did you intend to kill Paul the friend; indeed rather you would in no way have killed him if you had known that he was Paul the friend, this argument, I say, Molina had already anticipated thus (Tom. 4, Tr. 3, Disp. 30, n. 5): To the argument of the contrary opinion, he says, the consequence must be denied. For although that homicide did not have deceit with comparison to Paul, nevertheless he had deceit as regards that killing, insofar as it was the killing of a certain man, whom, beyond the estimation of the one killing so unjustly and with deceit, it happened to be Paul. But it is enough that that homicide was committed simply with deceit.

Molina (ibid., n. 2) confirms this response from L. Eum qui 18, § 3, De iniuriis, where it is read thus: If an injury is done to me by him to whom I am unknown, or if someone thinks me to be Lucius Titius, when I am Caius Seius, that which is principal prevails, namely that he wished to do an injury to me; for I am certain, although he thinks me to be other than I am, and therefore I have the action for injuries. But Molina adds: Here you see that the fact that the one bringing injury upon me thinks me to be another man in number than I am does not take away his fault, nor excuse him from penalty, because in reality he intends to do an injury, and does it with deceit.

But he had first explained the matter thus (ibid.): In that killing of Paul two things must be considered. One is the unjust killing of a man; but the other is of this man in singular, suppose Paul... But that killing, insofar as it has the account of the unjust killing of a man, was deceitful, because it was done from the intention of committing homicide concerning that man. But it is by accident that that killing does not have the account of deceitful homicide because it terminated at this man in singular.

It is confirmed and declared with the same Molina (ibid.): When, he says, in some delict there is knowledge of the delict joined with invincible ignorance of some circumstance which adds to the delict either gravity or a diverse species, then that ignorance, just as it excuses from the fault which results from that circumstance, so excuses from the penalty which corresponds to the circumstance. But just as this ignorance does not excuse from fault for that part of which knowledge is present, so neither can it excuse from the corresponding penalty and consequent burdens.

And hence it is plain how far that which St. Alphonsus (l.c.) replies after others has force: It is answered, he says, that this proceeds in the external forum, where the presumption of knowledge of the injured person stands against the one injuring, to whom belief is by no means given if he asserts that he wished to offend another. For in the external forum it is not a presumed delict that is condemned and punished, but a delict perpetrated in the unjust killing of a man, whoever this may have been. Indeed it so far departs from the true that the forum relies on such a presumption of knowledge and takes no account of an error of this kind, that the laws expressly establish the contrary. Thus (L. Illud 3, § 4, ff. de iniuriis): If someone struck a free man, while he thinks him his own slave, he is in such a case that he is not held for injuries. And again (L. Si cum servo 4, ff. same title): If, when I wished to strike my slave with a fist, I unwillingly struck you standing next to him, I am not held for injuries. Therefore even the external forum takes account of this error. Yet the distinction between the preceding and this case Gotofredus indicates very well in a note: For, he says, my intention was of applying myself to a legitimate thing, that is, of punishing a slave. And Molina had gone before (l.c., n. 3), saying: He who thus intended to strike his own slave intended to do no injury, but was using his own right, wishing to punish his own slave. But truly it cannot be said that he used his own right or did not intend to do an injury, who wished to kill or strike an enemy, or wished to burn the house of his enemy. But whoever, knowing that he inflicts a damaging injury by his act, inflicts it with a wholly free will, surely takes upon himself the consequences of his action, which are certainly formally unjust.

It could easily be shown here by what route both Tamburini and Sporer, and some others after them, were driven sideways by certain arguments sought merely from some parity, which indeed is very easily detected as limping. But these arguments cannot be suitable to a brief Note.

665. • Q. 7. To what is he held who indeed inflicted grave damage, but with slight fault, for example, from defect of advertence, etc.?

Resp. More probably he is held to nothing. For he cannot be obligated either under grave or under light obligation: 1. not under grave obligation, for a grave obligation has no proportion with slight fault; 2. nor under light obligation, because a light obligation has no proportion with a grave thing. - Thus St. Lig., n. 552. - Lugo, D. 8, n. 56. - Vogler, n. 109. - Lessius. - Roncaglia, etc.

Others, however, oblige him under grave obligation to repair the whole damage. - Others indeed to the whole, but under light obligation. - Finally others to some part only, according to the proportion of the fault. But these sentences seem to introduce the greatest inconveniences.

666. • Q. 8. Whether he who inflicted grave damage through several venial faults deliberately committed is held under grave obligation to repair that whole damage?

Resp. 1. Affirmatively, if the damage was inflicted on the same person, although the damager did not sin gravely. The reason is that he is held to repair the whole damage committed voluntarily and freely. But the whole damage was freely inflicted, and besides is grave in the hypothesis; therefore that whole damage ⁶ must be repaired under grave obligation. - Vogler, n. 124 and 126. - Lugo, D. 8, n. 69, etc.

⁶ St. Alphonsus nevertheless warns (Lib. 3, n. 553) that it suffices for avoiding mortal sin that only that small matter which completes grave matter be restored, as Sanchez, Lessius, Vasquez, etc., more probably hold.

Resp. 2. But more probably negatively, if minute damages were inflicted on diverse persons. The reason is that on the one hand no one suffers grave damage, and on the other hand the damager does not become rich by another's thing ⁷. Hence the present case differs from the similar question related above, n. 630, because a thief becomes rich from minute thefts, but not a damager.

⁷ It has already elsewhere been noted that the depravity of theft does not consist in this, that someone becomes rich from another's thing, but that he becomes rich unjustly. But this injustice resides in the violation of another's right, which is present in the same way both if someone becomes richer from the violation of another's right and if he does not become richer, because, for example, either he immediately consumes, or loses, or destroys the thing stolen, or inflicts damage while taking nothing to himself. And since the violation of another's right carries with it the obligation of repairing that same right, this is present and must be present both if the violator became richer from it and if he did not become richer. Since these things are so, as regards the present matter it ought to be evident that he who has harmed several by minute damages in such a way that the collected matter of all the damages together must be judged grave is in absolutely the same condition and therefore is bound by the same obligation of restoring, both if he has been made richer from the matter of the several thefts, and if he has by no means been made more rich, since either he at once consumed what was gradually stolen, or harmed others while stealing nothing for himself. Therefore if any obligation of restoring is present on account of minute damages inflicted gradually on several by thefts from which someone has been made richer, the same obligation must be said to be present even when from the inflicted damages no utility has accrued to the damager. For absolutely the same reason prevails in both cases.

Q. 9. Whether one who thinks from invincible error that the damage inflicted by him is much less than it really is, is held to restore all that damage if afterwards he recognizes the true price; for example, if someone throws into the sea another's gem worth 100, while he believes it to be worth only 40?

Resp. Probably he is held to restore only pro rata of the known damage, because damage is not judged willed which is invincibly unknown. - St. Lig., n. 615. - Elbel, n. 90. - Vogler, n. 189. - Carrière, n. 1151, against others.

Nevertheless there will be an obligation of repairing the whole damage if at some time, on account of a suspicion of greater price arising at least in a confused way, the whole damage becomes voluntary.

667. • Q. 10. Whether an owner is held to repair damage brought upon the neighbor by his animals?

Resp. 1. Affirmatively, if from theological fault he neglected to watch over the animals. For each one from natural right is held diligently to guard his animals, lest they inflict damage on others, just as he ought to take precautions lest detriment come to the neighbor from his own actions.

Resp. 2. But if theological fault has been excluded, he is indeed not held before the sentence of a judge, as is plain from principle II, n. 659; but he is certainly held when sentence has been pronounced, as is clear from principle III.

Q. 11. Whether he is held to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The first sentence, the more probable one, denies it, because he who gives bad example is not the cause of the damage, but a mere occasion. For an evil action does not through itself tend to this, that it should excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflict the damage. - St. Lig., n. 537 and l. 2, n. 45. - Salmant. - Laymann. - Sanchez. - Lugo, etc.

The second sentence affirms it, because one giving bad example with foresight of contagion can be held as an efficacious cause of the 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. - Antoine, p. 2, c. 3, q. 13. - Billuart, diss. 8. - Cuniliati, etc.

668. • Q. 12. Whether he is held to restitution who doubts whether he himself was the cause of damage?

Resp. 1. If the doubt turns on the existence of the damage, more probably he is held to nothing, provided that after diligent inquiry the doubt perseveres. The reason is that, since the fact of the damage is not certain, it cannot produce a certain obligation of repairing it. This is clear from this principle: An obligation is not to be imposed unless it is certainly established. Likewise from this other principle: A fact is not presumed, but must be proved. - Thus St. Lig., n. 562. - Lacroix, n. 574. - Vogler, n. 73, and others more commonly against some.

Resp. 2. If the doubt turns on the influence of the action upon the damage which certainly happened, it is controverted, and there is a twofold probable sentence. - Thus St. Lig., ibid., etc.

Nevertheless more probably restitution must be urged whenever it is certain that damage was inflicted, and the doubt is only who among several was the damager, when they posited the damaging action in the same way; for it is repugnant that an innocent person should certainly have to suffer because it is not established to whom the damage must be imputed. Thus two men together firing a bullet at a third seem to be obligated pro rata to compensate the damages arising from mutilation or killing, although it is discovered that he was injured by only one or the other. Some nevertheless excuse them wholly from restitution, but they contend this with less firm arguments ⁸.

⁸ ** The question which the Author touches upon in this last paragraph differs somewhat from that in which St. Alphonsus (Lib. 3, n. 562) disputes whether, in doubt whether your counsel, or command, consent, recourse, flattery, silence, etc., was the cause of the damage, etc., you are held to restitution. For in this question of the Holy Doctor there is some certain person who is held to restitution, for example, the executor. But on the contrary in the question proposed by the Author this seems to be lacking. Hence the VV. (p. 924) oppose to this resolution of the Author not indeed those things which the Holy Doctor has in the cited n. 562, but those which the same treats in n. 657 and 658, where he treats of restitution on account of adultery; since both the Author also treats this peculiar question below, n. 733, it is better to reserve the response to the objections for that place.

669. • Q. 13. Whether you are held to repair damage occurring to someone on occasion of your unjust action; for example, if you have stolen and the theft is imputed to him?

Resp. 1. Certainly negatively, if you did not foresee that damage. It is plain from what was said above in principle II, n. 659.

Resp. 2. Also more probably negatively, although you foresaw this damage. The reason is that your action, posited with the foresight of damage alone, must be held not as its cause through itself, but only by accident. This is also clear from the second principle, ibid. Except if at some time the circumstances were such that between them and a grave suspicion concerning another a true connection was given. - St. Lig., n. 635. - Lessius. - Lacroix, n. 157, etc., against others.

Resp. 3. Indeed probably it must also be denied, although you acted purposely so that your action might be imputed to him; because this action is always only the cause of the damage by accident, and not through itself, for it did not efficaciously influence that damage from its nature. For a depraved intention does not bring it about that a work be unjust which of itself is not unjust with respect to a third party ⁹. Nevertheless, it must be excepted if someone should use those means which furnish a very grave suspicion for accusing another; for example, if he clothed himself with that person's garments to perpetrate homicide and threw these garments away defiled with blood, etc. - St. Lig., n. 656. - Lessius. - Vogler, against others.

⁹ We have observed elsewhere with Cardinal De Lugo that the patrons of this doctrine are driven by its difficulties, when merely the species of the fact is changed, so far that they do not hesitate to set it aside. The same is to be noted also as regards the things which are said below at Q. 16.

670. • Q. 14. Whether an unjust distributor of offices is held to restitution?

Resp. 1. More probably he is held to nothing toward the worthy person passed over, excluding the case of a concourse, because he violated no one's strict right. - St. Lig., l. 4, n. 106. - Vogler, n. 241, and others commonly.

Resp. 2. By reason of the election of an unworthy person, he is certainly held toward the society concerning all damages thence arising. The reason is that there is judged to be present a pact of strict justice between the society and the elector, by which the latter is bound not to choose unworthy ministers. - Thus commonly. - Vogler, ibid. - St. Lig., Hom. apost., tract. 13, n. 39.

But more probably he is held to nothing by reason of the election of a less worthy person, although he can sin gravely. The reason is that the society is not judged to oblige electors by the title of commutative justice to choose the more worthy. - Vogler, n. 243. - Hom. apost., ibid.

671. • Q. 15. Whether he is held to restitution who impeded another from the attainment of some good or benefice?

Resp. 1. Affirmatively, if the neighbor has a strict right to obtaining the thing, for example, in the case of a concourse.

Resp. 2. If the neighbor does not have a strict right to obtaining the thing, one must distinguish: 1. it must be affirmed, if this is impeded by unjust means, for example, by force, fraud, calumny, fear, etc.; 2. but denied, if it is impeded by means just in themselves, for example, by persuasion, prayers, etc. The reason is that no right of another is then violated, neither in itself nor in the means. - Thus commonly. - Hom. apost., n. 61.

Q. 16. Whether you are held to restitution if from an evil intention, for example, from hatred, yet with means unjust of themselves excluded, you turn another away from attaining a good to which he does not have a strict right?

Resp. More probably negatively. The reason is that no injury is inflicted on the neighbor. For an evil intention does not suffice for injury, but an external action is required which is a true and efficacious cause of unjust damage. - St. Lig., n. 584. - Elbel, n. 108. - Antoine, q. 15, and others more commonly against others.

672. Cases. - 1. Didacus at night puts away a very precious crystal vessel of Caius in a corner of the house through which no one was going to pass soon, intending to put it in a safe place very early in the morning. But Basilius, entering the house without a light on this same night, strikes against the vessel and breaks it. What of right? - Resp. Neither Didacus nor Basilius is held to restitution, because theological fault is lacking on the part of both; for neither thought of the damage or of its danger. Indeed neither would be held if either had foreseen some very remote danger, because in moral matters attention is not given to mere possibility. - Vogler, n. 177, and others commonly.

2. Quirinus, intending to steal cloth, enters the workshop at night and lights a candle, applying diligence to avoid every danger of fire; but by an unforeseen chance, namely the leap of a cat, the candle is thrown down into straw, and in a short time the whole workshop is set on fire, and the thief, having scarcely taken flight, escapes unharmed. What concerning Quirinus? - Resp. He is held to nothing, because he by no means foresaw the danger. Indeed he is not held concerning the cloth which he wished to steal, even if he had grasped it, because that damage also is involuntary; nor is the grasping of the cloth the cause of the damage; nor did the carrying of a candle, sufficient caution having been applied, create a proximate danger of fire. Yet if the thief had not only grasped the cloth, but had consummated the theft by removing it from the power and custody of the owner, when by chance, for example, by the lit candle, the cloth should be burned, he would be held concerning it, just as is said concerning any stolen thing which perishes by fortuitous chance with the thief. - Thus Lugo, D. 18, n. 88. - Vogler, n. 178. - Lacroix, n. 165 and following. - Reuter, n. 320, etc.

3. Pomponius, impelled by the spirit of vengeance, while he was seen by no one, fired a bullet at the goat of Maurus peacefully grazing in the field of its owner; but instead of the goat, unharmed, he struck and killed the cow of Marinus lying behind a hedge, with himself wholly ignorant of this. To what must Pomponius be obligated? - Resp. To nothing. For he is not held to anything for the aforesaid goat, since it remains unharmed; nor for the cow, since he in no way foresaw its damage. But what if the cow belongs to the same owner? The difficulty increases, since the damager truly intended to inflict damage on such a person; for although he does not destroy the thing specially intended, since in general he wishes to harm the enemy, the damaging action which he posits seems formally injurious to the same owner. Yet standing in the rigor of the principles, he can still more probably be excused, if he in no way, not even in a confused way, foresaw this other damage. For it can be said that it happened merely by accident; nor does the depraved intention of harming that same person bring it about that the damage of a thing wholly unknown becomes voluntary. It is otherwise, however, if, willing generally to harm the enemy as much as he could, he had known in some confused way various objects to be damaged ¹⁰. - Recall what was said, n. 659 and 669.

¹⁰ Namely, if he had known that from the firing of the bullet some damage, however not clearly known by him, could perhaps follow. For if nothing is present from which Pomponius may think that it can happen that by the firing he may harm the enemy, the act will proceed from concomitant ignorance, and accordingly the killing of the cow will be involuntary if not contrarily, at least negatively; it will namely be not voluntary.

4. Sidonius, seeing Justin passing by and thinking him to be Titius, says to his companions: Behold, this man is not the primipilus of the scrupulous!... But he is a man of nothing, a thief, fornicator, and drinker. It is asked: What must Sidonius do, when the error has been detected? - Resp. He must retract what was said before the same companions, although he said these things against Justin involuntarily; and if he does not do so, he will be held to repair all damages which follow from the defamation. - Reuter, n. 320, and others commonly.

5. Babinus, by repeated request and flatteries, yet with every fallacy excluded, induces the dying Rogerius to tear up the testament already composed in favor of Paul, so that he himself, or a friend, or a blood-relative may be constituted heir. But Babinus is determined to doing this, besides his own advantage or a friend's, from inveterate hatred which he cherishes against Paul. Is Babinus guilty of injustice? - Not at all. For although on account of hatred he has sinned gravely against charity, nevertheless he does not seem to have injured the virtue of justice, because he violated no strict right of Rogerius. The same would have to be said if someone from hatred had turned a testator away from constituting Paul heir, so that any other might be constituted in his place. - Elbel, n. 115. - Antoine, c. 4, q. 15. - Recall what was said, n. 671. - See Casus, n. 627 and following.