§ II. On One Counseling

One counseling is called he who by counsel, prayers, promises, suggestion of a motive, or showing of the way or means of harming has induced another to inflict damage.

762. Principles. - I. One counseling sins against justice as often as knowingly and willingly he furnishes unjust counsel by which another is efficaciously induced to inflict damage unjustly; because the damage is imputed also to him. It is established also from proposition 39 condemned by Innocent XI, p. XVI.

II. One counseling who in good faith gave damaging counsel, when the truth is known, is bound to retract it, and indeed from justice, whenever without equal damage to himself he can retract. This is clear from what was said n. 749. q. 3°.

III. But one counseling is not bound to restitution if the executor would, without that counsel, just as well and in the same way have inflicted the damage; because then the counsel did not efficaciously influence the damage. Otherwise, however, if the executor was moved at the same time by the counsel of the other, although the damage would have happened even without this counsel; for in fact he would truly be an efficacious concause.¹

763. Questions. - Query 1° Is one counseling bound to restitution who revokes his counsel before the execution of the damage?

Resp. 1° Negatively, if the counsel was naked, that is, simple, because through revocation the whole force of the counsel is taken away. - Thus commonly.

Resp. 2° If the counsel was clothed, or founded upon motives, it is controverted. According to S. Alph.², sufficiently probably also negatively, provided that in the retraction other motives have been employed, at least equally efficacious, for example of eternal salvation, against others, whose opinion he calls indeed more probable, yet not far more probable. Except if you showed to a thief determined to inflict damage the way of entering the house, which otherwise he would not have found, or something similar; because your cooperation then was truly efficacious, especially if you foresaw³ that the thief was not going to change his depraved purpose, unless nevertheless you warned him to whom damage threatens, to which in the case you are bound.³

Query 2° Is one counseling a lesser evil in order to avert a greater evil bound to restitution?

Resp. Negatively, if it is a question of the same person, because the counsel favors him; otherwise, however, if it is a question of another to whom otherwise damage would not have been inflicted. For this latter, outside the case in which he is bound from charity to undergo this damage (n. 279. 305. q. 1°), is judged reasonably unwilling.

764. • Query 3° Is one counseling evil to another who notices it bound also concerning the damages which this man has suffered by executing the depraved counsel?

Resp. Negatively, of itself. The reason is that he inflicted no injury upon him, since no injury is done to one knowing and willing. - It is otherwise, however, if the one counseling has so circumvented the executor with frauds or sophisms that this man did not notice the iniquity of the counsel.

Query 4° Is one counseling only the mode of an unjust action bound to restitution?

Resp. Negatively, if the mode is merely accidental, as are commonly the circumstances of time, place, and means. Otherwise, however, if the mode in some way redounds into the substance, for example if it increases the damage, etc.¹

Query 5° Is one persuading that damage be inflicted more quickly bound to restitution?

Resp. Negatively, if he is certain that the other is determined to evil and that he is not going to change his depraved mind; otherwise in the other hypothesis.²

765. • Query 6° Is one counseling bound to restitution primarily or only secondarily?

Resp. Of itself, he is bound only secondarily, because the executor is principally acting, as being one who is judged to act in his own name and for his own utility. But if the counsel is useful to the one counseling, this man will be bound primarily; otherwise if it is useful to the executor alone. But if it is useful to each, or if from the damage inflicted useful advantage came to neither, each will be bound according to proportion and in solidum.³

Query 7° Is one giving harmful DOCTRINAL counsel (or not only impulsive counsel) from gravely culpable ignorance bound to restitution, and how?

Resp. 1° If the one giving counsel does this from his state or office, for example an advocate, physician, confessor, etc., he is bound to restitution concerning the unjust damage which follows from his counsel, whether toward the one seeking counsel or toward him against whom it is given. The reason is that from a tacit contract the consulter has a strict right to the due knowledge and diligence of that man.

Resp. 2° If the one counseling is not such a person as by reason of his office or state professes skill, 1° he is not bound toward the one seeking counsel, unless from deceitful counsel, or unless he affects great skill which he lacks. 2° Nevertheless he is obligated toward a third person who suffers damage from this, if he himself knew his own lack of skill and foresaw, at least in confused manner, the damage to follow.⁴

766. Resolutions. - 1° Women, common people, and others generally, whose insufficiency is known, if they do not deceitfully affect skill, are bound to restore nothing to those who have sought counsel from them. Nevertheless they are bound toward others to whom damage has been inflicted from their counsel, if they sufficiently foresaw that damage; for they are guilty, when by giving rash counsels in those things which they do not know, they expose themselves to danger of injuring an unwilling innocent person.¹ - But what if someone through, for example, newspapers, or otherwise publicly, affects great skill in healing some disease, or attributes to some medicine, otherwise harmless, an almost extraordinary or more general power than it has? From custom those sayings do not obtain full faith, nor will he be guilty of injustice, unless he either lacks ordinary knowledge, or omits ordinary diligence, or because of falsely thought knowledge exacts a salary, or because of medicine not extraordinary exacts a price above the common one.

2° If by persuasion or exhortation you have been the cause that greater damage be inflicted than otherwise would have been inflicted, you are bound only concerning the excess of damage. Hence if to a thief separately determined of himself to steal $100 you persuaded him to steal 200, more probably you contract only the obligation of restoring 100.

3° If two together counsel theft to Peter, who, induced by their counsel, steals, each is bound to restitution; for although Peter would have stolen even if only one of them had counseled, nevertheless in fact each by his own counsel influenced it, and by that very fact each was the cause of the theft. - S. Alph.,² Lugo.³

4° Physicians, pleaders, confessors, and the rest who from office are counselors, only moderately learned, who in a difficult matter give counsel by which another is harmed, are bound to restore, even if they are not ignorant that they are unequal to solving, treating, etc. the more difficult cases. Likewise, even if they are equal to their office, if they treat difficult matters without a mature examination having been premised according to the gravity of the thing, provided that at least in confused manner they attended to the obligation of investigating the matter more thoroughly and to the damage that would arise from their negligence; because all these harm others by culpable ignorance.⁴