Section — Konings, Theologia Moralis
§ VII. On the Silent, the One Not Preventing, the One Not Manifesting, or on Negative Cooperators
Negative cooperators are those who do not impede damage which by at least tacit agreement they are bound to impede. They are commonly called the silent, the one not preventing, the one not manifesting. 1° The silent is he who does not speak, does not cry out, does not forewarn the one to be damaged, while he is bound to this by office or contract. 2° The one not preventing is called he who does not furnish help which he can, and from justice ought to furnish, lest damage be inflicted. 3° The one not manifesting is called he who, while he can and from justice ought, does not manifest the malefactor to the injured owner or to the Superior, and by this reason is the cause why the injury is not repaired. Moreover, the same principles and the same moral applications fit all these cooperators.
- Principles. - I. No one by reason of damage not impeded is bound to restitution unless he is bound by agreement to impede it; for one who is not driven by agreement to impede damage is obligated from charity alone, whose violation does not oblige to restitution.
II. All who are obligated by agreement to impede the damage of another, if they culpably neglect this, are bound to restore; for from justice they ought to impede damage. Therefore if they omit it, they sin against justice and consequently are obligated to repair the damages.
III. That one cooperating negatively be bound to restitution, it is necessary that he could have impeded the damage without grave inconvenience; because neither contract nor positive law is accustomed to oblige with grave burden (at least for the most part, n. 137. § fin.).1
- Questions. - Query 1° Is a confessor bound to restitution if from grave negligence or ignorance he omitted to warn a penitent concerning restitution to be made?
Resp. More probably negatively. For although from office the confessor is bound to instruct the penitent well, and therefore sins gravely if he omits this when it is necessary, nevertheless he is not bound to this from justice toward a third party. Except if the silence of the confessor is equivalent to approval; for example, if, having been questioned, without sufficient cause he so declines a response that the absence of obligation is suggested to the penitent. - S. Alph.,2 Lugo, Suarez, and others commonly.
Query 2° Are servants bound to restitution when they culpably do not impede damages which are inflicted upon the master?
Resp. More probably negatively as to damages inflicted by other servants or domestic persons, unless the matter was specially committed to them by agreement, namely at least tacit, for example the key of the wine-cellar handed to them. - More commonly and more probably affirmatively as to damages inflicted by outsiders. - The reason is that in the former case, because of foreseen quarrels, they do not seem to have taken this burden upon themselves in the contract of hiring work, but they do seem to have done so in the latter.3 Yet today, since to each one his works are usually entrusted by a contract diligently circumscribed, neither can this be admitted generally. Wherefore attention must be paid to this contract,1 or, failing it, to custom.
- Query 3° Is a superior bound to repair damage inflicted by his subjects (workers, servants, children, wife)?
Resp. 1° For the civil forum see Kent.2
Resp. 2° As to the internal forum, theological fault being supposed: a. Affirmatively, if the obligation of guarding against damage has also been taken upon himself by agreement, at least tacit, for example if a master committed work to be done by agreement, to be executed by the workers subject to himself; or if someone from public office ought to impede the damages of others.3 b. Likewise affirmatively, if, seeing damages to be inflicted by subjects or knowing them already inflicted, he is silent, and the circumstances are such that by his silence, as a flatterer, he efficaciously influences the inflicting or repeating of the damage. c. Negatively in the other cases, where it is a question of a prelate who ought to watch over his subjects only from piety; for violation of this can induce guilt of grave fault indeed, but not the obligation of restitution. But if in the cases concerning which under c, the civil law decrees damage to be furnished by the one set over, this disposition of the law will pertain to legal justice, nor will it oblige before sentence.4
- Query 4° Is he bound to restitution who by omission of a vote did not prevent an unjust sentence?
Resp. Distinguish between the right of a vote from office and of a vote from privilege or from mere favor, according to what was said n. 769. q. 3°.
Query 5° Is he bound to restitution who accepted money from a thief so that he would be silent, if he ought not to cry out from office?
Resp. More probably negatively, at least of itself. The reason is that he could be silent because of the thief's prayers without injustice, since he is not bound from justice to cry out. Therefore by parity he can be silent without injustice because of gifts promised or handed over. - Lugo, Tamburinus, etc. - But it would have to be said otherwise if he accepted money so that he would watch whether anyone approached; because then he would positively cooperate with the theft.
Query 6° Are guards who do not denounce damagers bound to compensate all damages and also to pay the fine?
Resp. to the 1st. Affirmatively, of itself, because they are constituted to impede damages; except if it is a question of matters of lighter moment, for which, from custom and the presumed will of the owner, secret admonition suffices.
Resp. to the 2nd. More probably negatively, on account of contrary practice, with which common sense agrees. The same must be said concerning a judge not imposing, or a magistrate not demanding, a punitive fine. Except if denunciation of the damager has been made before the judge.