ARTICLE II: ON UNJUST DAMAGING

744. • An unjust damager is called one who injures another's right and harms the neighbor in his goods, without thereby of itself becoming 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 the damaging omission of diligence prescribed by law, whether this is a formal sin or not.¹

But juridical fault, from the common interpretation of Roman Law, is either gross, or slight, or very slight. Gross fault is the omission of diligence which men commonly are accustomed to employ in similar affairs, as if someone, leaving his workshop for a longer time, leaves the door and chests open, and anyone can easily carry away money or merchandise. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to employ; as if the same man, going away a little, neglects to carry with him the keys of the chest, which it is not at all likely that another, in his absence, will seize for stealing. Very slight fault is the omission of diligence which is usually employed only by the most prudent and most diligent; as if the guard of a house, who when about to go to bed bolts all the doors, neglects to search the individual places, lest perhaps a thief lie hidden.

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

The reason for this principle is clear from what was said n. 587 and 713. For the injured owner must be made wholly harmless. But for this it is not enough if the damager pays to 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 everything which he lost from the unjust damaging. Nor does it stand in the way that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility perceived concerning another's thing, but from damage inflicted.

746. • II. That a damaging action induce an obligation of restitution, by natural right a threefold condition is required, namely that it be 1° unjust, 2° the efficacious cause of damage and indeed certainly efficacious, 3° theologically culpable.

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. 587, etc.

2° The efficacious cause of damage, namely 1° that the action per se influence the damage, so that this is judged truly to follow from it; 2° that it can be imputed to such an agent. The reason for each is clear. For an action can be imputed to no one 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 or morally.

But this happens when an action is placed which from its own nature or from the circumstances has a morally certain connection with damage. Hence 1° a merely occasional cause of damage does not suffice for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on the occasion of theft perpetrated by you, another was accused and condemned, you are held by no obligation of repairing his damage. - Nor 2° does an accidental cause suffice for restitution; for this is one which, considered in itself or with attention to the circumstances, does not have a probable connection with the event, and so is not to 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 perpetrates murder with that sword.

And indeed certainly efficacious; for the obligation of restitution cannot be present unless the cause of it is certainly established.

3° Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless in the same forum an injury has been committed, nor can conscience be bound by an obligation of repairing an injury which it did not itself inflict; otherwise even those sleeping and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. Moreover 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.¹

747. • III. Yet even from merely juridical fault there arises an obligation of legal justice or obedience of repairing damage; but only after sentence, and that a just one. 1. The obligation arises, since the law establishing it, as made for the common good (n. 129. R. 2°) and favoring all equally in advance, is just; wherefore the injured party safely appeals to it, even if he certainly knows that the injurer is guilty of no theological fault. 2. Legal justice etc., because that obligation is imposed by right of jurisdiction. 3. Only after sentence, since that obligation has the species of penalty, and it would be hard to oblige the guilty man to take it upon himself spontaneously without theological fault. 4. And a just one (see n. 129. R. 1°).² Mar.³ (K) p. 482.

748. Questions. - Query 1° Are you bound without theological fault concerning damage inflicted by you upon another's thing detained from contract, for example of deposit or loan for use?

Resp. There is a twofold probable opinion.

The Opinion which to S. Alph.⁴ is very 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 established from what was said above in principle II, unless a special agreement has intervened. But the existence of an agreement of this kind is in no way established; indeed, it is not presumed that the contracting party wished in conscience to take upon himself under grave sin so great an obligation with juridical fault alone.

749. • Query 2° Is someone without theological fault bound concerning damage inflicted in fulfilling an office, as if a physician gave a harmful remedy, a judge an unjust sentence, an advocate false counsel, a confessor a resolution damaging to a penitent or to another?

Resp. Probably negatively, as in the preceding question. The reason is 1° because the obligation of restoring on account of merely juridical fault in an office, or in a quasi-contract, cannot be proved either from natural right or from the convention of the parties; 2° because such an obligation would be harmful to the public good; for from this it would happen that upright and God-fearing men would be kept from undertaking the affairs of others, and also from public offices. S. Alph.,¹ Billuart,² Lacroix.³

Query 3° Is he bound to restitution who inculpably indeed placed a cause of damage, but afterward did not impede it, although he could have impeded it?

Resp. Affirmatively. The reason is that each one is bound from justice to impede his own action from harming the neighbor; therefore he is also bound to impede the evil following from his action from persevering, but not with equal damage to himself.⁴

Hence 1° one who inculpably set fire to another's house, when he notices the danger of the fire, is bound from justice to impede it, if he can. 2° Likewise a pharmacist who sold poison by mistake for medicine is bound from justice to warn the buyer. 3° Likewise one who by mistake said something grave against another's reputation is bound afterward, when the error is known, to correct it; and if he does not do so, he sins gravely and is obligated to reparation of all damages which come from this.

750. • Query 4° Must damage following from a cause culpably indeed placed, but already retracted when the damage is inflicted, be repaired?

Resp. Affirmatively, unless with the perverse will the influence of the cause also has been taken away. Thus, for example, if someone voluntarily gave poison to another, and afterward cannot impede its effect, however much, repenting of the deed, he may wish it, he will be bound to repair the damages coming from the homicide. The reason is that he who placed the cause of the damage always goes on efficaciously influencing it. - Thus commonly.

Query 5° Must damage indeed inflicted BY ACCIDENT, but while attending to an illicit work, be repaired?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even in confused manner. Nor does it matter that the action was illicit; for this pertains nothing to the notion of justice. Thus a cleric who, while attending 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 would have 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 bound to restitution who killed Titius, whom he did not at all see nor know to be present, while he was aiming a gun at Caius. - Thus most commonly. - Lugo,¹ S. Alph.²

751. • Query 6° Are you bound to repair damage which by mistake you inflicted upon someone 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. They deny it with S. Alph.,³ Lugo,⁴ Lacroix.⁵ The reason is that the action was not voluntary toward the damaged person.

Query 7° Is one who gravely damages, yet with light theological fault, bound to restore under whatever fault, even very slight?

Resp. More probably negatively, because proportion is lacking both between grave obligation and light fault, and between light obligation and a grave thing. - Otherwise, if someone, prudently fearing damage from his action, voluntarily admits juridical fault to which according to the nature of the thing he was bound; for this man is guilty of grave theological fault.⁶

752. • Query 8° Is one who inflicted grave damage through several venial faults deliberately committed bound under grave sin to repair that whole damage?

Resp. 1° Affirmatively, if the damage inflicted is upon the same person, although the damager did not sin gravely. The reason is that here he is bound to repair the whole damage voluntarily and freely committed. But the whole damage was freely inflicted, and besides it is grave in the hypothesis; therefore that whole must be repaired under grave sin. - Lugo,¹ etc.

Resp. 2° More probably negatively, however, if small damages were inflicted upon 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 from another's thing. Hence the present case differs from the similar question related above n. 717. q. 4°, because a thief becomes rich from small thefts, but not a damager.

Query 9° Is one who from invincible error thinks that the damage inflicted by him is much less than it really is bound to restore that whole damage if afterward 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 10?

Resp. Probably he is bound to restore only according to the proportion of the damage known; because the damage which is invincibly unknown is not judged willed. - S. Alph.,² Carriere,³ against others.

Yet an obligation of repairing the whole damage will be given if, when because of suspicion of a greater price, at least arising in confused manner, the whole damage becomes voluntary.

753. • Query 10° Is an owner bound to repair damage inflicted upon the neighbor by his animals?

Resp. 1° Affirmatively, if from theological fault he neglected to watch over the animals. For each one is bound by natural right diligently to guard his animals lest they inflict damage upon others, just as he ought to guard against detriment coming to the neighbor from his own actions.

Resp. 2° But, theological fault being set aside, he is not bound before the sentence of the judge, as is clear from principle II. n. 746; but after sentence has been pronounced, as is established from principle III. n. 747. - But by the laws according to which sentence is commonly given among us, animals inflicting damage are held until satisfaction is made to the injured party, and by public authority they are sold if the owner neglects to redeem them. But if the owner of the estate often omitted to enclose it lawfully, he can recover nothing; but he himself will be bound to repair the damage if the animal wounded or killed.⁴ Cf. n. 686.

Query 11° Is that man bound to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The more probable opinion denies it, because one who gives bad example is not the cause of the damage, but a mere occasion. For an evil action of itself does not tend to this, that it excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflicting the damage. S. Alph.,¹ Salmant., Laymann, Sanchez, Lugo, etc.

754. • Query 12° Is he bound to restitution who doubts whether he himself was the cause of damage?

Resp. There can be doubt: 1. whether a cause of damage was given, for example whether you calumniated someone; whether you were the cause of damage or only the occasion; 2. whether damage truly came to someone, suppose from your detraction; 3. whether damage which actually followed arose from that cause, for example from the calumny, or from elsewhere; 4. whether, if many were the cause of damage in the same way, for example by adultery, the effect (offspring certainly adulterine) is to be attributed to this or that adulterer. In all these doubts the obligation of restitution is to be denied; and indeed in the 1st and 2nd according to the common opinion; in the 3rd according to a sufficiently probable opinion; and in the 4th according to the more probable.² The reason is that in each hypothesis it is a question of a doubtful obligation, by reason either of the cause or of the effect.

Except, as to the 4th doubt, if the second adulterer, knowing adultery to have been committed by another, had intercourse with the adulteress, noticing that he by his second adultery becomes the cause of uncertainty whether support can be exacted from the first adulterer. But the reason indeed is not valid for the earlier adulterer, who would think nothing concerning future adulteries. And for the second to be bound, it is further required that he notice that damage which can come from his adultery; because nevertheless this advertence will be very rare, the obligation of this adulterer also will be very rare. - 2° If several adulterers from common counsel perpetrated adultery.²

755. • Query 13° Are you bound to repair damage coming to someone on the occasion of your unjust action, for example if you stole, and the theft is imputed to him?

Resp. 1° Certainly negatively, if you did not foresee that damage. This is clear from what was said above in principle II. n. 746.

Resp. 2° Also more probably negatively, although you foresaw this damage. The reason is that your action, placed with the foresight alone of the damage, must be held not as the per se cause of it, but only as the cause by accident. It is established also from the second principle, ibid. Except if at any time the circumstances were such that they morally proximately influence the grave suspicion and condemnation of another. - S. Alph.,¹ Lacroix,² etc., against others.

Resp. 3° Indeed probably it must also be denied, although you acted deliberately so that your action would be imputed to him, because this action is always only the cause of the damage by accident and not per se; for from its nature it did not efficaciously influence that damage. For a depraved intention does not effect that the work is unjust which of itself is not unjust with respect to a third party. Yet it must be excepted if someone used those means which would furnish a very grave suspicion for accusing another, for example if he dressed himself in his clothes to perpetrate homicide, threw away these stained with blood, etc. - S. Alph.,³ Lessius, Vogler, against others.

756. • Query 14° Is an unjust distributor of offices bound to restitution?

Resp. 1° More probably he is bound to nothing toward the worthy person passed over, the case of competition being set aside, because he violated the strict right of no one. - S. Alph.,⁴ and others commonly.

Resp. 2° By reason of the election of an unworthy person he is certainly bound toward society concerning all damages thence coming. The reason is that there is judged to be present an agreement of strict justice between society and the elector, by which the latter is bound not to elect unworthy ministers. - Thus commonly.⁵

But more probably he is bound to nothing by reason of the election of one less worthy, although he can sin gravely. The reason is that society is not judged to oblige electors by the title of commutative justice to elect the worthier.⁶

757. • Query 15° Is he bound to restitution who impeded another from the obtaining of some good or benefit?

Resp. 1° Affirmatively, if the neighbor has a strict right to obtaining the thing, as if you impede a creditor from obtaining payment.

Resp. 2° If the neighbor does not have a strict right to obtaining the thing, a distinction must be made. 1° It must be affirmed if this is impeded by unjust means, for example force, fraud, calumny, fear, etc. Namely, then he is obligated to compensation of damage according to the judgment of a prudent man, according to the certitude or probability which the other had of obtaining that good, provided nevertheless he is worthy and could have obtained that good without injustice; for if he were unworthy, the one impeding would not be bound except to restitution of reputation, if perhaps he injured this unjustly.¹ 2° It must be denied, however, if it is impeded by means just in themselves, for example persuasion, prayers, etc. The reason is that then no right of the other is violated, neither in itself nor in the means. - Thus commonly.²

Query 16° Are you bound to restitution if from an evil intention, for example from hatred, yet with means of themselves unjust set aside, you turn another away from the obtaining of a good to which he does not have a strict right?

Resp. More probably negatively. The reason is that no injury is inflicted upon the neighbor. For evil intention does not suffice for injury, but there is required an external action which is the true and efficacious cause of unjust damage. - S. Alph.³ and others more commonly against others.

Query 17° Must someone in danger prefer another's thing to his own, so that he is bound concerning damages if he does not prefer it?

Resp. The contract by force of which he has another's thing either yields for his utility only, or for the utility of the other only, or for the utility of both. If the first, as if he received the thing by loan for use, he ought to prefer that thing to his own, or, if his own is much more precious, to make the owner harmless concerning the price of his thing, because for his benefit alone the thing of another was brought into ruin. - If the second, as for example if I received the thing by deposit, a distinction must be made. If this is much more precious, I ought to conserve it; nevertheless I can exact compensation of the whole damage which I suffered by preserving it. If my thing is equally precious, I am not bound to prefer another's thing to mine, since I retain it for the utility of that man alone.⁴ If the third, as for example if as a broker (agent) I have been hired for a price to sell another's thing, there are those who think that, other things being equal, I can prefer my thing, since charity does not oblige me to prefer another's thing to mine in equal necessity; but others think that some compensation is owed to the other party, which seems more just to Varceno.⁵

758. Cases. - 1° Didacus at night puts away in a corner of the house a very precious crystal vase of Caius, by which no one was soon going to pass, intending to place it in a safe place very early in the morning. But Basilius, entering the house that same night without light, strikes against the vase and breaks it. What is the law? - Resp. Neither Didacus nor Basilius is bound to restitution, because on the part of each theological fault is lacking; for neither thought about damage or the danger of it. Indeed neither one would be bound if he had foreseen some very remote danger, because in morals attention is not paid to mere possibility.

2° Quirinus, intending to steal cloth, enters a workshop at night and lights a candle, employing diligence to avoid every danger of fire; but by an unexpected event, namely the leap of a cat, the candle is thrown into straw, and in a short time the whole workshop is burned, and the thief barely escapes unharmed by taking flight. What of Quirinus? - Resp. He is bound to nothing, because he in no way foresaw the danger. Indeed he is not bound concerning the cloth which he wished to steal, even if he had seized it, because even that damage is involuntary; nor is the seizure of the cloth the cause of the damage, nor did the carrying of the candle create a proximate danger of fire when sufficient caution had been employed. Yet if the thief had not only seized the cloth, but had consummated the theft by withdrawing it from the power and custody of the owner, when by accident, for example by the lit candle, the cloth was burned, he would be bound concerning it, as is said concerning any stolen thing which perishes by fortuitous event with the thief. - Thus Lugo,² Lacroix.³ Cf. n. 734. 1°.

3° Pomponius, impelled by a mind of revenge, while seen by no one, discharged a shot at a goat of Marri grazing peacefully in the estate of the owner; but instead of the goat, which was unharmed, he struck and killed a cow of Marinus lying behind a hedge, while he was wholly ignorant of it. To what is Pomponius to be obligated? - Resp. To nothing. For he is not bound to anything for the aforesaid goat, since it remained 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 intends to inflict damage upon 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 places seems formally injurious to the same owner. Nevertheless, standing in the rigor of the principles, he can still more probably be excused, if in no way, not even in confused manner, did he foresee this other damage. For it can be said that it happened merely by accident; nor does the depraved intention of harming the same man make the damage of a thing wholly unknown become voluntary. It is otherwise, however, if, wishing generally to harm the enemy as much as he could, he had known somewhat in confused manner various objects to be damaged. Recall what was said n. 746 and 755.

4° Sidonius, seeing Justin passing by and thinking that he is Titius, says to his companions: Look, that man is not the standard-bearer of the scrupulous! ... But he is a worthless man, a thief, fornicator, and drunkard. Query: What must Sidonius do when the error is detected? - Resp. He must retract the things said before the same companions, although involuntarily he said these things against Justin; and if he does not do so, he will be bound to repair all damages which follow from the defamation. Cf. n. 749. q. 3°.

5° Babinus, by repeated prayer and flatteries, yet with all deceit set aside, induces Roger, who is dying, to tear up the will already made in favor of Paul, so that he himself, or a friend or blood-relative, may be constituted heir. But Babinus is determined to do this, besides his own advantage or that of a friend, from inveterate hatred which he cherishes against Paul. Is Babinus guilty of injustice? - By no means. For although on account of hatred he has sinned gravely against charity, nevertheless more probably he has not injured the virtue of justice, because he has violated no strict right of Roger. The same would have to be said if someone from hatred had turned the testator away from constituting Paul heir, so that anyone else would be constituted in his place. - Recall what was said n. 757. q. 15°. q. 16°.

6° a) John intercepts letters by which Paul seeks some office, and thus impedes him from obtaining that office. b) Peter, the secretary of the Governor, sets aside a little the letters by which Caius was demanding some office, so that the office meanwhile may be conferred upon Titius. c) Iphigenius reads letters sent to Cornelius and opened by accident, and uses the knowledge derived from this for his own advantage, but without any damage of Cornelius. d) Antony, a secretary hired by Hubert for a price, uses knowledge received on occasion of his office to the detriment of Hubert, or even of those who wrote letters to this man. To what are John, Peter, Iphigenius, Antony bound? - John, Peter, and Antony are bound concerning the damage respectively toward Paul, Caius, Hubert, or those who wrote letters to this man, since they used unjust means to impede them from the obtaining of a good. And indeed John and Peter are bound to compensation to be estimated according to the reason of the hope which shone upon Paul and Caius of obtaining the office. But Iphigenius is bound to nothing, since he inflicted no damage.

7° Charles persuades the Governor to choose Patrick rather than Kilian, otherwise certainly to be designated, for an office. To what is Charles to be obligated? To nothing, provided that in persuading he used no fraud, calumny, or other unjust means. (n. 757. q. 15°.)

8° Hilary a) from hatred toward Philip induces the notary that in favor of Philip an act not be done before him, which otherwise will be invalid; b) in order to harm Bertha, otherwise to be instituted heir by Caius, he craftily removes the secretary, or another suitable person for drawing up a will, lest the dying Caius use his work, who will scarcely have the work of another. Is Hilary guilty of unjust damaging? He certainly is in the former case, because, since the notary by force of his office was bound to furnish his work to Philip, who, as is supposed, asked for it, he deprived Philip of his strict right. Resolve the same of itself in the latter case. I say: of itself; for since everywhere among us the will of a dying man can obtain force also in another way, namely by declaring it before witnesses, there will scarcely be an obligation of restoring to Bertha, unless force was employed by Hilary lest the will be made in any manner in which it could be valid.

9° Felix a) detains a messenger lest a business useful to Ferdinand be transacted; meanwhile he uses the occasion for his own utility. b) Elsewhere he hires all the post-horses in the town for a price lest the same Ferdinand betake himself to a certain place, where he would have made an immense gain. Is Felix bound to make Ferdinand harmless? A distinction must be made. If by force or threats he detained the messenger or hired the post-horses, affirmatively. If only by persuasion or art, negatively, unless the messenger had been hired by Ferdinand, or by another contract ought to have conducted Ferdinand's business.