Section — Konings, Theologia Moralis
§ I. On the Order of Restitution Among Cooperators
- To assign the order of restitution in solidum among cooperators in the damage of another, it must be inspected whether the cause of the damage is principal, or primary; whether secondary, or subordinated; 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 concurred in the same mode, individuals ought equally to restore in solidum conditionally. Three by common and efficacious conspiracy burn buildings of the price of 3000. Individuals owe 1000; if two cannot or will not pay 1000, the third will owe 3000.
II. If they concur in a diverse mode, 1 the holder is bound, under whom are also the receiver of the prey and the participant; 2 the one mandating; 3 the executor, under whom also is the participant in the damaging action; 4 the other positive causes; 5 the negative. A master commands a servant to steal or inflict damage; this man, doubting whether he should obey, is moved by the counsel of a friend to obey; and, while the guard of the house does not impede, he takes the thing away and hands it to another to be guarded lest it be detected. First the holder must restore; when he restores, the rest are freed from every obligation. But if he does not wish to or cannot, the master is bound; in his default the servant; when both fail, the friend; when the rest are neglectful, the guard.1
- Resolutions. - 1° Secondary causes are bound to nothing if the principal cause restored or obtained remission of the debt; for secondary causes are bound only in default of the principal cause, whose obligation has ceased.2
2° If one of the less principal causes restores, the principal cause is bound to make it harmless, because the less principal acquires the creditor's right against the principal.
3° If the creditor releases the secondary cause from obligation, the principal cause is not for that reason 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 secondaries, the other secondary causes are not for that reason free from the obligation of restoring their own part, unless the condonation was altogether full, or such can deservedly be presumed. - Lugo, Vogler, S. Alph.1
4° If one of the equally obligated causes has restored the whole debt, the others are bound to repay a part to him, because each ought to satisfy according to the proportion of his fault. But if one could not or would not restore his own part, the rest ought to divide it among themselves.
5° One counseling or consenting is not bound of itself before the executor; for this man is bound first, because the executor, when the one mandating fails, is the principal cause of the damage. - Yet see the exceptions concerning which n. 765. q. 6°.