ARTICLE I: On the Measure of Restitution

990. Things to be noted beforehand. The measure of restitution, with respect to each damaged person, we already know from the preceding chapter, where it was said that damage must be repaired according to equality. - Here the measure must be determined with respect to each damager, when several have concurred, by diverse influence, in the same damage.

I. There is a threefold genus of cooperators: 1. There are given cooperators of whom one is the principal cause of the damage, while the others are his instruments. 2. There are given cooperators who are concauses of the whole damage, who produce the whole damage equally efficaciously, whether because conspiracy preceded, or because each necessarily needed the help of another, or finally because each sufficiently concurred in the whole damage, for example two counselors. 3. Finally there are given cooperators who separately, independently from others, effect this or that, from which the whole damage arises.

II. The measure of restitution is twofold: for some are said to be obligated in solidum, others simply pro rata.

1. The obligation of restoring in solidum, or solidarity, is the burden lying upon individual cooperators of repairing the whole damage inflicted; and it is subdistinguished. For it is a) either absolute, if someone is held alone to repair the whole damage, without having the right of recompensing himself from the other cooperators; b) or conditioned, if each one indeed is held, unless others refund their part, to restore the whole, but with the right of recompensing himself from these. Hence such a one is said to be obligated pro rata and in solidum.

2. The obligation of restoring simply pro rata is the burden lying upon each one of repairing only that part of the damage which corresponds to his cooperation.

991. PRINCIPLES. I. Whoever was the principal cause of the whole damage is held to restitution in solidum absolutely. 1. In solidum, because he was the cause of the whole damage. 2. Absolutely, because the other cooperators were only his instruments, and whatever was done by them was done in the name and for the favor of that one. Thus all (III, 580, 4).

Hence, for example, a thief who calls others to carry away stolen things and uses them as instruments is held to restore in solidum absolutely. Say the same of one mandating. See nevertheless n. 995, 3.

992. II. Any one of the equally principal cooperators, concurring efficaciously in the whole damage, is held to restitution in solidum conditionally. 1. In solidum, because the whole damage must be ascribed to his action. 2. Conditionally, because, from the hypothesis, the same damage must also be ascribed to other concauses (III, 579).

Hence, if two robbers inflict two equally lethal wounds, or despoil another, yet so that one does not suffice for completing the work, each is held in solidum conditionally to restoring (cf. Ami du Cl., 1911, p. 202). - Likewise, he who furnished a suffrage necessary for an unjust sentence. Cf. Gury, I, 695; German Code, 830, 840; Austrian, 1301-1304.

993. III. Those who separately, without conspiracy and without mutual aid, have contributed to inflicting the same damage are held individually for the pro rata part of cooperation. The reason is that none of them was the efficacious cause of the whole damage. - Hence, if several, without mutual help or motion, concur in stealing a treasure, in stripping a vineyard, each of them is held only pro rata (Praxis Conf., 44).

994. Questions. QUAER. 1. To what is an unjust cooperator held, if without conspiracy he concurs in an individual or undivided damage, for example in burning a house?

Resp. 1. If he concurs in the whole damage totally, or with total influence, namely so that without his work the damage would not have happened, he is certainly held to the whole, that is, pro rata and in solidum; even if, if he had failed, another certainly would have furnished the same work. Thus commonly with Lessius; because he was held from justice both not to place a partial cause of damage, and to deny his concurrence for impeding the whole damage.

2. If he concurs partially, or with partial influence, namely so that, if he had failed, the whole effect would still have been placed by other concauses, he is held only for his pro rata part. The reason is that in such a case, although the whole damage proceeded from him and the concauses indivisibly and by one action, nevertheless from individual persons it proceeded only partially; hence the whole damage is by no means to be imputed to individual persons. Thus probably Navarrus, Lugo, and others, against others who think that they are held in solidum conditionally (III, 579; Crolly, III, 1054).

QUAER. 2. Whether one is held in solidum, in doubt whether he was the cause of the whole damage?

Resp. With the common opinion: He is not held except to his part; because a certain burden, namely of restoring the whole, cannot be imposed for an uncertain obligation. - Except, unless by his action he rendered the matter uncertain (cf. n. 963, q. 2).

QUAER. 3. Whether, in the case of conditioned solidarity, he who doubts whether others have restored their part is held to restore the whole?

Resp. Affirmatively; because, in the case, the right of the owner of recovering the whole possesses; and the obligation of rendering him unharmed holds the guilty person until the latter has proved, or has been morally certain, that full payment has been made. Cf. n. 947.

PRACTICAL RULES. "The uneducated, especially those who are of a conscience little fearful, can with difficulty be persuaded to restore what has been accepted by others; and on the contrary, the owners themselves are content with their portion, for this very reason, that if someone were obligated to the whole, he would easily omit restoring, not to say what the others accepted, but even what he himself accepted" (III, 579). Therefore let the confessor exhort each of these to restore what he owes, without explaining the quantity, remitting himself to the dictate of that one's conscience. Cf. Praxis Conf., n. 44; H. Ap., X, 54. See the things already said in n. 929.