Article 2: The Duty of Repairing Unjust Damage or Loss Inflicted on Others

Justice may be violated not only by taking away or retaining the property of others, but also by damaging or destroying it without sufficient cause. This violation lasts until the damage or loss is duly repaired.¹

¹ Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 77 sqq.; Göpfert, II, pp. 269 sqq.

1. One is in duty bound to make restitution if the damage or loss which one has caused involves a sinful violation of justice (iustitia formalis), by which the unjust deed was not merely per accidens occasioned, but physically or morally caused, and which is imputable to the author as formal sin or guilt (culpa theologica).² Hence if the deed in question was not the efficient cause of the damage done (causa efficax damni per se vel in causa), but merely furnished the occasion (causa occasionalis) for it, no duty of restitution arises. In the case of a purely juridical transgression (culpa iuridica), the obligation of making restitution does not go into effect until a court decision has been rendered, unless, of course, there is a contractual obligation of mak- ing good any damage or loss arising from a purely juridical guilt.³

² J. P. Gury, Comp. Theol. Mor., Vol. I, n. 633: “For an act causing damage to induce an obligation of restitution, natural law requires that three conditions concur, namely, that it be unjust, an efficient cause of the damage, and theologically culpable; that is, that it be truly, effectively, and formally unjust.”

³ Aug. Lehmkuhl, S. J., Casus Consc., Vol. I, 3rd ed., n. 668–671.

Reparation must be made not only of the damage intentionally inflicted, but likewise of all injuries or losses arising from that damage (damnum emergens, lucrum cessans), in so far as they could be foreseen, and, finally, of the expenses which the rightful owner was forced to incur in order to protect his rights.

From these principles there follow the subjoined practical conclusions:

1. He who was the cause of damage without his fault, but failed to prevent further damage afterwards when he was able to do so, must make restitution. For every man is in justice bound to take proper care that his fellowmen are not injured by his actions, and hence must prevent damage arising from his actions if he is able; neglect of this duty amounts to a formal sin of injustice. Note, however, that this duty does not bind at the risk of a comparatively serious disadvantage. Consequently, he who has inadvertently set fire to his neighbor’s house, is in justice bound to extinguish the flames if he reasonably can; an apothecary who has sold poison instead of medicine, must take all available means to get it back; a physician who has prescribed the wrong drug for his patient, must correct his error, and so forth.

2. He who through his own fault caused damage to another and then vainly tried to prevent the consequences of his act, is bound to make restitution. Hence a) He who sets fire to a house and then tries to extinguish the flames, but fails, is liable for the entire damage; b) He who intentionally gives another poison, and then vainly endeavors to prevent it from taking effect, is obliged to make reparation of the injury caused by the act; the same rule applies in case of slander, bad advice, etc.

3. He who performs an illicit and at the same time unjust action, from which, per accidens, damage arises to another, is not bound to make restitution. This applies:

a) To the poacher who shoots a man instead of the hare he is aiming at, provided he is not guilty of criminal carelessness; b) To the thief who attempts to steal in the house of a citizen at night and accidentally overturns a lamp, thus causing the house to catch fire; c) To the burglar who breaks into a barn and accidentally sets fire to the hay, thus causing the destruction of the building with its contents.

d) One guilty of a crime which is falsely attributed to another, is not obliged to indemnify that other for the damage or loss he has suffered, unless the deed was committed in such a way or by such means that grave suspicion was thrown upon the other. The reason for this decision is that the act of the guilty man caused suspicion to fall upon the innocent party only per accidens; the real cause was an error committed by others.

A thief (or a murderer) is not per se obliged to make restitution to an innocent man accused of the crime he has committed; but charity may oblige him to prevent his conviction if he can do so without grave injury to himself. The duty of restitution binds the guilty party if he committed a crime under conditions which necessarily drew suspicion to the innocent party, e. g., if he placed some of the stolen goods in his house or wore his clothes or used weapons belonging to him. Whether this is the case also amid conditions which the guilty party did not create, but merely found existing, is subject to controversy.⁴

⁴ Cfr. St. Alphonsus, Theol. Mor., l. III, n. 628–629 (ed. Gaudé, II, 106 sqq.); IDEM, Homo Apostolicus, n. 84; Göpfert, II, 273 sq.

II. Damage or loss unjustly inflicted carries with it the duty of restitution even in the case of mere mediate co-operation, whether physical or moral, positive or negative,⁵ provided the following conditions are fulfilled: (1) the co-operation must be unjust, (2) it must be the efficient cause of the damage done, and (3) it must be theologically culpable, that is to say, formally sinful. The amount to be restored in each instance depends on the manner and influence of the co-operation lent.

⁵ Rom. I, 32.—Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 7.

1. Positive or direct co-operation may take different forms according to the various ways in which one man can co-operate with others in inflicting injury.

a) One co-operates with another in injustice by command (iussio sive mandatum) when one induces the other, by whatever means, to do an injury in his name or on his behalf. In such a case he who commands (iubens sive mandans) is to be regarded as the moral author of the injustice committed, and consequently is bound to make restitution, unless indeed the mandatarius exceeded the clear and definite instructions of the mandans or carried out an order which had been expressly revoked. In the last-mentioned case the mandatarius is obliged to repair the damage done. If the mandans will not or cannot make the required restitution, the mandatarius, as the secondary cause of the unjust deed, must do so if he knew, or should have known, that the deed was unjust.⁶

⁶ Lehmkuhl, Casus Consc., Vol. I, 3rd ed., n. 725–727; Slater, Vol. I, pp. 419 sq.

It does not matter, as Fr. Slater observes, “whether one of the parties is in a position of superiority with respect to the other or not, nor by what means he induces the other to perform the injurious action, whether by threats, or promises, or commands, or requests; it is sufficient if by some means he induces the other to do his unjust will. Henry II made himself guilty of the blood of St. Thomas a Becket by complaining that none who ate his bread would avenge the insults offered him. Mere approval, however, of injustice which has already been done does not render him who approves liable to restitution.”⁷

⁷ Slater, Vol. I, p. 420.

The mandans is not bound to make restitution if he revoked his command or request and this fact became known to the mandatarius before he committed the unjust deed. This remains true even if the mandatarius, in order to obtain the promised reward, falsely alleges that he did not know of the revocation before the deed was committed; for he acted in his own name. If it is doubtful whether the unjust deed was inspired by a command or merely by a counsel, in other words, whether the person co-operating in the other’s crime was a principal or an accessory, the doubt may, as a rule, be solved by ascertaining who benefited by the crime, because under the law the beneficiary is regarded as the principal agent.

b) A person co-operates with another in injustice by counsel if he gives him advice or urges motives or shows him how to proceed, in doing evil.⁸ Whoever is guilty of this species of co-operation and knows that his advice is sinful (consilium simplex vel nudum), is the secondary author of the injustice committed and consequently bound to make restitution if the principal author (causa primaria) will not or cannot do so. If the advice in question was given officially by an expert or a confidant consulted for the purpose, e. g., a confessor or an attorney-at-law, the advisor or counsellor is the moral cause of the damage, and, as such, bound to make restitution. If the advice was recalled before the unjust act was committed, together with a statement of the reasons for which it was given, the advisor (consulens sive suadens) can not be held to make restitution, but if the advice was recalled without stating the motives for the recall, the advisor is liable pro rata, that is, for his share of the damage done.⁹

⁸ Slater, Vol. I, pp. 418 sq.

⁹ Prop. damn. sub Innoc. XI, n. 39: “Whoever moves or induces another to inflict grave damage upon a third party is not bound to restore that inflicted damage.” (Denzinger-Bannwart, n. 1189).—Reg. Iur. in VI° Decret. Bonif. VIII, n. 62: “No one is bound on account of counsel, provided it was not fraudulent.”—Cfr. Lehmkuhl, Casus Consc., Vol. I, n. 728 sqq.—Noldin, Summa Theol. Mor., Vol. II, pp. 505 sqq.

The advisor is not bound to restitution if the other was determined to commit the evil deed when the advice was given, for in that case the advice, though unjust and sinful, was not the efficacious cause (causa efficax) of the damage done. The case is different, however, if the person who actually committed the crime was partly determined to do so by the counsel given. When it is doubtful whether or not the advice given was the cause of the unjust act, the more probable view is that the counsellor is not obliged to make restitution.

If one merely shows another, who is already determined to do an unjust deed, how it may be done, he does not incur the obligation of making restitution, provided the means indicated were in no way essential to the execution of the crime and neither made the damage possible nor tended to increase it. For example: If I counsel a would-be murderer to poison his victim instead of shooting him, or to kill him in a different place, or at a different time than he had planned, I am not bound to make restitution. But if I pointed out to another when and where he could best carry out a contemplated robbery, which might not have been successful otherwise, I am bound to restitution. He who counsels another who is resolved to do damage, to do it at an earlier date than was intended, is not obliged to make restitution, provided it is certain that the other was determined to commit the evil deed and in all likelihood would not have changed his mind. He who advised another to commit a lesser evil instead of the greater one which he planned, is not bound to make restitution, no matter whether the actual damage is done to the same or to an indefinite person. For example, if I advise X, who is determined to set fire to my neighbor’s house, rather to steal something, be it from the same neighbor or from another, I am not bound to make restitution; nor if Y is about to murder another for his money, and I advise him to obtain it by theft. In the former case the owner of the house could not reasonably object to my action, since I am preventing greater injury to his property; in the latter, I merely intend to prevent the commission of a greater by counselling a smaller crime.

He who has given wicked counsel through gravely culpable ignorance is obliged to repair the damage resulting therefrom, if he is an official or expert (physician, lawyer, confessor, etc.) and his advice was asked as such, or if he merely posed as an expert, pretending a skill and knowledge which he did not possess.¹⁰ “Others who do not specially hold themselves out as experts will not be bound to compensate those who ask their advice and suffer loss through following it. No injury was done by giving them what they asked for, no fraud was committed by the assumption of skill or knowledge which was not possessed; if they chose to follow the advice, they took the risk on themselves, and: ‘scienti et volenti non fit iniuria.’”¹¹

¹⁰ Göpfert, Moraltheol., Vol. II, pp. 287 sq.

¹¹ Slater, A Manual of Moral Theol., Vol. I, p. 419.

c) A third way of co-operating in injustice is by giving one’s consent (consensus) to an unjust action or voting for it. If the consent given is the causa efficax of the unjust action, it entails the duty of restitution, and if the consentiens is the sole author of the damage unjustly inflicted, he alone is bound to repair it, e. g., if he was aware of the formal injustice of the evil deed, while the perpetrator was not. If, however, the consent was merely the secondary cause of the unjust action, the consentiens is bound to make restitution only in case the principal agent cannot or will not do so. If the consent to an unjust action is given by vote, each member of the college or community thus voting, or culpably neglecting to register a protest, is responsible for the damage done, and consequently bound to make restitution pro rata, nay, eventually, in solidum, i. e., one for all and all for one. If the vote was taken publicly, he who knew that his vote could not possibly alter the result does not incur the moral obligation of making restitution, nor a legal obligation either, if he votes no, or appeals to higher authority, or refuses his co-operation. To submit to the decision of the majority without a protest would be tantamount to giving one’s consent. If the decision is not irrevocable, he who has voted in favor of an unjust action can withdraw his con- sent and thereby escape the burden of restitution.¹²

¹² Gury, I, n. 688: “Solidarity, or the obligation of restoring in full, is a burden incumbent on several co-operators to repair the entire damage to the injured person. It is distinguished in two ways, namely: 1. Absolute, which occurs when one person is bound alone to repair the damage; 2. Conditional, by which the individual co-operators are bound to make restitution in place of the other individual co-operators who fail.” —Lehmkuhl, Casus Consc., I, n. 731 sqq.; Slater, I, 420 sq.

d) One may become co-responsible for injury inflicted also by ridicule, praise, or flattery. As a rule, the duty of restitution thus incurred is subsidiary only, that is, it binds the co-operator only in case the principal agent refuses to repair the damage or loss inflicted; but it is primary if the co-operator actually intended the damage to be done, and by his praise or flattery impaired or destroyed the imputability of his tool. Slight befuddling of another by ordinary praise, flattery, or ridicule does not, as a rule, entail the duty of restitution. If the doer of the unjust deed is led by the praise given to him on account of his action to omit restitution, his seducer is obliged to attend to it.

e) Another way of sinful co-operation is that technically known as recursus, i. e., helping to perform an unjust act by furnishing protection, hiding tools, or concealing or selling the plunder, issuing false testimonials, etc. These actions entail the duty of restitution if they involve conscious or formal co-operation in the unjust deed and if they constitute a conditio sine qua non of its commission, so that without them the damage would not have been done, or could have been done only with great difficulty.

Conscious co-operation is not assumed on the part of those who are lawfully engaged in trading with goods that are often sold by thieves and robbers, such as weapons, dynamite, poisons, etc.

The various kinds of recursus also involve a violation of charity, since by doing these things a man aids his fellowmen in committing sin instead of deterring them therefrom. The case is different when the aid or protection is purely material, and given after the commission of the unjust act, unless he who renders it is bound by his official position or by contract to report the guilty parties to the authorities.¹³

¹³ Gury, Comp. Theol. Mor., Vol. I, n. 660; Aertnys, Theol. Mor., Vol. I, 6th ed., l. III, n. 326 sq.

He who shelters a thief, hides his tools, or accepts or purchases from him stolen articles, thus encouraging him to new adventures of the same kind, is bound to make restitution. Innkeepers, pawnbrokers, and others who receive stolen goods or money from minors, or from servants or other suspicious persons in payment for goods, thereby foment thievery and are bound to make restitution, not only for the goods received, but likewise for the damage which they encourage others to do. Lawyers who undertake unjust lawsuits, and all who protect or warn thieves in their operations, are in the same category.

The following are not bound to make restitution:

α) Those who shelter a thief to save him from punishment, shame or prison; for their purpose is to secure for him an object of a higher order. If the thief subsequently fails to make restitution, this injury is purely accidental. It is advisable, however, to admonish a thief whom one shelters to restore his ill-gotten goods.

β) Those who help an imprisoned thief to escape, in order to withdraw him from punishment, provided restitution of the stolen property is not thereby rendered impossible, and provided further that future thefts are not encouraged; γ) Those who shelter a thief for fear of serious damage to themselves, but not with the object or intention of enabling him to continue his operations; δ) Hosts and innkeepers who house a thief because it is their business to accommodate strangers; ε) Lawyers who defend a thief or other criminal in matters in which he cannot defend himself.¹⁴

¹⁴ F. A. Göpfert, Moraltheologie, Vol. II, 6th ed., pp. 282 sq.; Noldin, Summa Theol. Mor., Vol. II, pp. 510 sqq.

f) He who helps another to perform an unjust action is a partner in injustice (participans). If he divides the spoils with the other (participans in praeda), he is obliged to restore his portion of the loot. If his participation in the crime is physical (participans in actione damnosa sive in crimine), he is bound to make restitution according to the measure of his co-operation, provided that co-operation was formally sinful and one of the causes of the crime. If participation was merely remote, and not per se sinful, or caused by threats of bodily injury or infamy, it does not entail the duty of restitution. If there was a conspiracy, all the participants are bound to make restitution in solidum, i. e., one for all and all for one.¹⁵

¹⁵ Lehmkuhl, Casus Consc., Vol. I, 3rd ed., n. 734 sqq.

2. The guilt of indirect or negative co-operation in injustice is incurred by any one who permits injury to be done to others, either by omitting to restrain the criminal by words (mutus), or in deed (non obstans), or by neglecting to report his conduct to the proper authorities (non manifestans). However, such negative co-operators are bound to restitution only if they were obliged to prevent the damage in justice, i. e., by their office or by contract (ex officio vel ex contractu). Parents are responsible for damage done by their young children or by domestic animals, because the presumption is that such damage is attributable to a lack of proper care or supervision. If they are not guilty of a moral fault, and the injury done is attributable to force majeure (vis maior) or to an accident (casus), they are bound to make restitution only after a civil court has decided against them.¹⁶

¹⁶ Noldin, Summa Theol. Mor., II, 573 sq.

Servants are bound to prevent damage to the property of their masters; but they are not bound to make good any damage done by their fellow- servants, unless the damaged property had been entrusted to their special care or custody,¹⁷ and even in that case only if the master cannot obtain compensation from any other source.

¹⁷ Lehmkuhl, Casus Consc., I, n. 737 sqq.

Generally speaking, the duty of restitution arises from negative co-operation in an unjust action only when the non-prevention of damage was culpable, and the real author of the damage does not make proper compensation to the owner. Those who are obliged to prevent damage as a matter of charity only (ex caritate), are not bound to make restitution unless they helped to inflict the damage when it was in their power to prevent it. For example, he who accepts money from a thief as an inducement not to sound the alarm or to call in the police, or who effectively hinders some one bound ex iustitia to report the theft, is guilty of positive co-operation and therefore bound to restitution.

A confessor who, through gravely sinful neglect or gross ignorance, omits to remind a penitent of his duty to make restitution for damage unjustly inflicted, is not bound to make restitution instead of his penitent. He is bound ex iustitia to instruct his penitents properly and therefore commits a mortal sin, no matter whether the cause of his omission be ignorance or carelessness; but his silence is not a causa efficax damni, and hence does not entail restitution. If, however, the penitent directly asked the confessor whether he was obliged to make res- titution, and the latter remained silent, he would have to make compensation himself, because his silence would then be the direct cause of the damage resulting to the injured party. He who is silent seems to consent if he is able to speak and it is his duty to speak.¹⁸ It goes without saying that a confessor who would release a penitent from the manifest duty of making restitution, would incur that duty himself. The same is true, mutatis mutandis, of a confessor who would compel a penitent not bound to restitution to repair damage for which he was responsible, for in both cases the confessor would be the positive and efficient cause of the damage inflicted.¹⁹

¹⁸ “He who is silent is deemed to consent, if he was able and ought to have spoken.”

¹⁹ H. Noldin, S. J., Summa Theol. Mor., Vol. II, pp. 514 sq.

Readings.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 77 sqq.—J. P. Gury, Comp. Theol. Mor., Vol. I, n. 631 sqq.—F. A. Göpfert, Moraltheologie, Vol. II, 6th ed., pp. 269 sqq.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 477–520.—T. Slater, S.J., A Manual of Mor. Theol., Vol. I, pp. 408 sqq.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 202–234.