Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ VII. On the Mute, the One Not Resisting, the One Not Manifesting, or on Negative Cooperators
Negative cooperators are those who do not impede the damage of the neighbor, when from office they are held to impede it. They are commonly called mute, not resisting, not manifesting. 1. The mute 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. 2. The one not resisting is said to be he who, while damage is being inflicted, does not resist, does not guard the thing, although he ought to do this from justice. 3. The one not manifesting is called he who, after damage has been inflicted, does not denounce the damager to the injured owner or to the Superior, although from office and therefore from justice he ought to denounce. Besides, the same principles and the same moral applications belong to all these.
- Principles. - I. No one by reason of damage not impeded is held to restitution unless from office he is held to impede it; for he who is not compelled to impede damage from office is obligated from charity alone, whose violation does not oblige to restitution.
II. All who are obligated from office to impede the damage of another, if they culpably neglect this, are held to restore; for from justice they ought to impede the damage. Therefore if they omit it, they sin against justice, and consequently are obligated to repair the damages.
III. 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 contract nor positive law is accustomed, at least for the most part, to oblige with a grave burden. - St. Lig., n. 573.
- Questions. - Q. 1. Whether a Confessor is held to restitution if from grave negligence or ignorance he omitted to warn the penitent about 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, for example, if when asked he so declines a response that the absence of obligation is suggested to the penitent. - St. Lig., n. 578. - Lugo. - Suarez, and others commonly.
Q. 2. Whether servants are held to restitution when culpably 1 they do not impede damages which are brought upon the master?
1 Some fault could be present even short of the obligation of restoring, when they are held from charity alone; for in the present matter an obligation from charity can be present even in those cases in which no obligation of justice is present.
Resp. 1. Affirmatively, as it seems 2, if it is a matter of damage inflicted by outsiders. The reason is that by the very fact that servants are admitted into the family, they are judged to undertake the obligation of defending it against outsiders. - St. Lig., l. 3, n. 344. - Lugo, Vogler, etc.
2 The word it seems, from the sentence of St. Thomas, is the word of one opining. And in this sense it is more probable that the Author used it. Indeed Lugo (De Iust., Disp. 19, n. 106), however much, with Soto, Navarro, and Lessius alleged, he adheres to this sentence, does not conceal that just as many adhered to the opposite one, namely Molina, Rebellus, Azor, and Bonacina. Therefore the Confessor ought to abstain from urging the obligation of restitution.
Resp. 2. More probably negatively, if it is a matter of damage inflicted by other servants, unless the thing had been specially committed to them; because hired servants do not seem to be hired except for labor and for defending the household from outsiders. - St. Lig., ibid. - Others nevertheless dissent not improbably 3.
3 On this matter Lugo (Disp. 19, n. 105): All admit that he is not held when he sees theft being done by another domestic servant, unless care and custody has been committed to him by a special office. Therefore the opposite opinion must be held as the anomaly of some more recent author. But Lugo adds these things as regards practice: A servant would also be held when a key is given to him for taking something out of some place, because for that time the custody of that place is entrusted to him. Those also are held who have care of the pantry, or are placed over the custody and vigilance of domestic things or the household.
- Q. 3. Whether a Superior is held to repair damage inflicted by his subjects?
Resp. 1. As regards the external forum, affirmatively both from Roman Law, especially if servants and children are concerned, and from French Law 4, in which express mention is made 1. of the father, and with him dead, of the mother, relatively to minor children living with them; 2. of the master or one mandating 5, relatively to servants or mandataries; 3. of the instructor and artisan, relatively to pupils. Nevertheless recourse is given to the Superior against the one damaging, for requiring compensation.
4 Yet the French Code warns (art. 1384), consonant with Roman law in this, that an obligation of this kind, whether in parents, or in teachers, or in artisans, ceases whenever they make it plain that it was not in their power to impede that deed concerning which otherwise they are held to respond according to their condition. But as regards parents specifically, besides the fact that generally they ought to respond concerning the deeds of children which they could have impeded, a threefold case is expressly expressed in the law in which this burden presses them: namely 1. when at their command a son has done something; 2. whenever the business done by a son has yielded to their utility or profit; 3. when the son does not lack adventitious peculium, of which they receive the usufruct.
5 It was elsewhere observed that the notion of one mandating by no means of itself demands that he be superior to the mandatary.
Resp. 2. As regards the internal forum: 1. Affirmatively, if the silence of the Superior 6 is equivalent to a positive impulse. 2. But he is not held whenever theological fault is lacking. 3. Nor is he probably held, although he sinned gravely by not impeding the damage, if by his silence he in no way influenced it, especially since it is a matter of damage inflicted on another who is not a subject 7. The reason is that the quality of Superior by itself does not suffice so that someone is constituted as a kind of sponsor concerning the damages of subjects, unless from a special public office he ought to impede these. - Lugo. - Gousset, against others. - See St. Lig., n. 578.
6 For example, of the commander of a cohort of soldiers.
7 But even if damage had been inflicted on a subject, it would have to be inspected whether the Superior from a debt of justice undertakes to himself the damages of his subjects to be impeded.
Q. 4. Whether a husband is held concerning damages inflicted by his wife which he himself did not impede?
Resp. In the internal forum it seems that what was said concerning sons under paternal power or other subjects in Resp. 2 of the preceding question must be said concerning a wife. Hence probably he is held to nothing from mere silence, even gravely culpable. But in the external forum nothing is established in Roman Law or in French Law.
- Q. 5. Whether a councilor is held to restitution if by omission of a vote he did not resist an unjust sentence?
Resp. Affirmatively, if he ought to bring a vote from office, because the office must be fulfilled from justice, at least speaking commonly and with a just cause excluded. But negatively, if he has the right of vote from privilege, or from mere favor; for then he can omit the vote without injustice. - Lugo, D. 19, n. 61 and following. - Vogler, n. 304.
Q. 6. Whether he who accepted money from a thief so that he might be silent is held to restitution, if from office he ought not to cry out?
Resp. More probably negatively, at least of itself. The reason is that he could be silent on account of the thief's prayers without injustice, since he is not held from justice to cry out. Therefore, by parity, on account of gifts promised or handed over he can be silent without injustice. - Lugo. - Tamburinus, etc. - But otherwise it would have to be said if he accepted money so that he might observe whether someone is coming; because then he would cooperate positively in the theft.
Q. 7. Whether guards not denouncing damagers are held to compensate all damages and also to pay the fine?
Resp. to the first: Affirmatively, of itself, because they are constituted to impede damages; except if it is a matter of things of lighter moment, for which, from custom and the presumed will of the owner, secret warning suffices.
Resp. to the second: More probably negatively on account of contrary practice, with which common sense agrees. - Lugo. - Lessius. - Vogler, etc. The same must be said of a judge not procuring compensation of damage, or not exacting a punitive fine. Yet if denunciation of the damager has been made before a judge, he is held to punishing and to the reparation of the damage. - St. Lig., Hom. apost., tract. 13, n. 73. - See Casus, n. 681 and following.