ARTICLE I: HOW MUCH IS TO BE RESTORED?

777. • The quantity of restitution must be measured from the quantity of the thing accepted, or from the quantity of the damage inflicted, or from the influence upon the injury of the neighbor.

Since special difficulties occur concerning solidarity alone, we shall treat specially of it alone.

Definition. - Solidarity, or the obligation of restoring in solidum, is the burden incumbent upon the individual cooperators of repairing the whole damage inflicted.

Division. - A twofold solidarity is distinguished, namely 1° absolute, which has place when someone is bound to repair the whole damage; 2° conditioned, when individual cooperators are bound to restore for other failing cooperators.

778. Principles. - I. Any one of the cooperators concurring efficaciously toward damage, so that this whole can morally be ascribed to him, is bound to restitution in solidum, that is, integrally, whether absolutely or at least conditionally. The reason is that each one is the efficacious and unjust cause of the whole damage, and therefore must repair the whole. - Vogler² and others commonly.

II. But the whole damage can certainly be ascribed to some cooperator in a twofold case, namely 1° as often as 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° as often as cooperation is done from an efficacious conspiracy by which the damagers so efficaciously excite themselves to the damage that, if individuals did not concur, the damage would not happen.¹

III. Whoever is the principal cause of damage is bound to restore in solidum absolutely; but the other equal cooperators, or secondary causes, are bound only conditionally. The reason is that the principal agent, such as one mandating, a leader, etc., by the fact itself takes upon himself absolutely the whole burden of repairing the damage, since he himself inflicts it primarily, and does not use others except as instruments for damaging the neighbor. But who must be called the principal cause will be said below.

But as to secondary causes, S. Alph.² rightly warns that in practice it is rarely expedient to warn the uneducated or oblige them to repair the whole damage, although they are certainly bound in solidum; because, he says, "with difficulty do these persuade themselves that they are bound to restore the part taken by their companions. Indeed, it can be sufficiently presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken by them, since otherwise it is greatly to be feared that they restore nothing if they are obligated to the whole."

"Hence it is," the Holy Doctor continues,³ "that the confessor should exhort any one of those men (especially if he is of a conscience little meticulous) that he restore what he owes, without explaining the quantity, but remitting it to the dictate of his conscience."

779. Questions. - Query 1° Are you bound IN SOLIDUM in doubt whether you influenced the whole damage?

Resp. More probably negatively with the common opinion, because a certain burden cannot be imposed for an uncertain obligation.⁴

Query 2° Are you bound IN SOLIDUM in doubt whether the others restored their part according to proportion?

Resp. The opinion denying this is by no means approved by S. Alph.⁵ In negative doubt I think that others must be presumed to have satisfied their debt.

Query 3° Is there given an obligation of restoring IN SOLIDUM where cooperation indeed influences the whole damage of an indivisible thing, but is not of itself sufficient, nor necessary, nor proceeds from strict conspiracy; for example if four carry away a beam which even three would have carried away?

Resp. Probably negatively, because, since the whole reason of obligation is influence upon the damage, that ought not to be greater than the influence itself. From elsewhere, if someone by his work concurs only to part of the damage, for example of the devastation of a garden, but concurs with others to the whole damage so far as the remaining part of the garden had already been devastated by others, and he destroys what he found left whole by them, this man certainly is not bound to repair except the part of the damage of which he was the author. Therefore, by parity, one who concurs partially toward indivisible damage is bound only partially to the reparation of the damage, because he placed a partial cause.¹ - Lugo.²

780. • Query 4° Are you bound IN SOLIDUM if your action was indeed sufficient for inflicting the whole damage, but in no way necessary, nor proceeded from conspiracy; for example if you set fire to another's house at the same time with several others?

Resp. It is controverted. Not a few affirm probably, indeed also more probably, because where your action was sufficient for the damaging effect, in reality the whole damage must be ascribed morally to you and to the individual others. Roncaglia, Sanchez, Salmant., etc. - But others deny probably, because, although the damaging action was sufficient for the whole damage, nevertheless it did not have anything but a partial influence upon it, since it was neither necessary nor common with others from conspiracy. Therefore it is not the moral cause of the whole damage. Nor does it matter that it is a question of an indivisible thing, because the cooperation is not extended to the whole damage. Yet understand this whenever without your concurrence the damage would nevertheless have happened; otherwise even your action would have to be called necessary for it. - Sporer, Navar., etc. - S. Alph.³ has each opinion as probable.

781. 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, or such that each is bound according to his proportion, as reason plainly demonstrates.

2° If to a thief who, on account of efficacious motives, is already altogether determined to steal, you suggest a new motive which adds stimulus to him, you are not bound, when the other cooperators fail, to repair the whole damage, because your motive did not influence the substance of the damage.

3° Indeed probably, on account of the same reason, you ought to repay nothing from justice, if you only induce another to inflict damage somewhat more quickly or more readily.