§ I. On the Order of Restitution Among Cooperators

702. • For assigning the order of restitution in solidum among cooperators in another's damage, one must inspect whether the cause of the damage is principal, or primary; whether secondary, or subordinate; or finally collateral, or equal. For cooperators can concur in damage either in the same mode or degree, or in a diverse mode.

Principles. - I. If all have concurred in the same mode, each must restore equally in solidum conditionally, without any determined order, because none of them undertook a greater danger. I said, conditionally, that is, when the other cooperators would not restore, or no one would pay in solidum. - Vogler, n. 381, etc.

II. If they concur in a diverse mode, you will distinguish again; for restitution must be made either from theft or from mere damage.

If from theft, in the first place the possessor is held, who has the thing in individual or in equivalent, or who unjustly consumed it; then the one mandating, or the robber, if the one mandating is lacking; thirdly the other positive cooperators are held; finally the negative cooperators.

But if from damage, first the one mandating is held, as the principal cause; secondly the executor, even if he acted in the name of the one mandating, because relatively to the others according to the common sentence he is the principal cause; then the other positive cooperators; finally the negative cooperators. - Vogler, etc. - St. Lig., n. 580; Hom. apost., n. 60.

703. Resolutions. - 1. Secondary causes are held to nothing if the principal cause has restored or has obtained remission of the debt; for secondary causes are held only in the defect of the principal cause, whose obligation has ceased. - St. Lig., n. 581.

2. If one of the less principal causes restores, the principal cause is held to make him unharmed, because the less principal cause acquires the right of the creditor against the principal. - St. Lig., ibid.

3. If the creditor releases a secondary cause from the obligation, the principal cause is not thereby freed, because the obligation of the principal cause is independent of the obligation of the secondary cause. Indeed although the creditor remits to one of the secondary causes, the other secondary causes are not thereby free from the obligation of restoring their part, unless the condonation was wholly full, or can deservedly be presumed such. - Lugo. - Vogler. - St. Lig., ibid. - Except from French Law, if the debt is from contract (art. 1285).

4. If one of the causes equally obligated has restored the whole debt, the others are held to repay him their part, because each ought to satisfy pro rata of his fault ¹. But if one could not or would not restore his part, the others would have to divide it among themselves.

¹ This is manifestly plain if these causes are all equally primary; but if they are secondary, this is valid if the principal cause, one or multiple, does not restore.

5. One counseling or consenting is not held of himself before the executor; for this latter is held first, because the executor, when the one mandating is lacking, is the principal cause of the damage ². - See Casus, n. 695 and 697.

² This is true when the counsel is useful to the executor alone. For if it is useful only to the counselor, this latter is held first, and the executor only in his defect. But if it is equally useful to both, both are judged equally first pro rata and in solidum in the defect of the other.