CHAPTER II: On Unjust Damaging

St. Alphonsus, III, n. 582-588; ed. G., II, p. 73 seqq.; H. Ap., X, n. 60; Aertnys, l. III, n. 341; Lehmkuhl, I, n. 1160; Genicot, I, n. 514; Noldin, II, n. 430; Tanquerey, II, n. 587; Berardi, Theol. mor., III, n. 305.

919. Notion. Unjust damaging, in the strict sense, is an act by which, through formal injury, damage is inflicted upon one's neighbor, without any advantage of the one inflicting (cf. n. 948 seqq.).

General Principles. I. Unjust damaging is a sin from its genus grave. The reason is clear. Hence, no otherwise than theft, it admits smallness of matter that excuses from grave sin (cf. n. 904).

II. Formal damaging does not extend more broadly than foresight, at least confused, of the damage inflicted itself. The reason is clear from the things said in n. 724.

This species of injury will bring with itself very many things to be investigated and weighed in Dissertation III, where we shall treat of restitution. - In this place it will be enough to have discussed three cases in which injury is accustomed to appear doubtful, namely: 1. concerning a thing abandoned or put away in danger; - 2. concerning privation of a hoped-for thing, or concerning one impeding the obtaining of a just good; - 3. concerning unjust distribution of offices.

920. QUAER. 1. Whether you ought to prefer another's endangered thing, deposited with you or in any way committed to you, to your own thing, so that you are held concerning the damage if you have not preferred it?

Resp. Dist.: the contract or act by force of which you have another's thing either yields to your utility alone, or to the utility of the other alone, or to the utility of both. - If the first, for example if you have received the thing by commodatum, i.e. so that you may use it, you must prefer it to your own; unless yours is more precious, but in this case you are held to make the owner of the other thing unharmed, because the thing perished for your favor alone. - If the second, for example if you have received the thing by deposit, it must be subdistinguished: a) if the other thing is far more precious, you must preserve it; nevertheless, you can demand compensation of the whole damage that you have suffered in preserving it. - b) If your thing is almost equally precious, according to some you are not held to prefer another's thing to your own, since you retain this for the utility of the other alone; according to others, you are obligated to prefer the thing of another, since with respect to that thing the reason of justice intervenes, but with respect to your own, the reason of charity alone. - If the third, for example if as a broker you have been hired at a price to sell another's thing, there are those who think that, other things being equal, you can prefer your own thing; because charity does not oblige that in equal necessity you prefer another's thing to your own; but others judge that some compensation is owed to the other party, which is more equitable

seems more equitable. Here the Codes of commerce are to be consulted (III, 752; Lessius, l. 2, c. 7, n. 27).

QUAER. 2. Whether he is guilty of unjust damage who again commits another's thing, which he has withdrawn from danger, to the same danger, in which it afterward perishes?

Resp. Some, very probably, affirm, because that better condition which another's thing had obtained has become a certain quasi-accession for the advantage of the owner. Others, no less probably, and perhaps more probably, deny, whenever the avoidance of one's own damage requires that the thing be put back in its own place; for thus no injury is done, because no one is held to preserve the thing for the owner with his own damage.

Therefore, if you have taken away another's thing found in the road, and afterward you know that you will suffer damage if you retain it, you can rightly put it back in the same place and permit another to carry it away, although by doing this you put the thing into a worse state; for then the taking by the thief occurs from his own malice, and your cooperation is only permissive of another's detriment, which you are not held to avoid with your own damage (III, 569).

STATE OF THE QUESTION. It is asked whether he is an unjust damager who impedes another from obtaining a just good. For a man can be damaged not only in the goods which he actually possesses, but also in those which he hopes for, such as, for example, spiritual goods, whether supernatural or natural, and temporal goods of a benefice, alms, a legacy, etc.

NECESSARY DISTINCTIONS. 1. These goods which one's neighbor hopes for are often owed to him from justice, because concerning them he possesses a right in a thing or a right to a thing; sometimes also they depend upon the merely free will of those conferring them.

2. One's neighbor can be impeded, lest he obtain hoped-for goods, in many ways: a) directly or indirectly, according as an impediment is placed with the intention or with the mere foresight of inflicting damage; b) efficaciously or not efficaciously, according as the action of impeding obtains in itself a greater or lesser force; c) by just or unjust means, according as the means employed in themselves tend against something to which he has a right; for example, if someone impedes his neighbor by fraud, most importunate prayers, calumny, or force, he uses unjust means, because one's neighbor has a right to liberty in acting and to the preservation of reputation. But if someone has recourse to persuasion, counsel, or non-importunate prayers so that his neighbor may be turned away from obtaining the hoped-for good, there can be no question of injustice, since neither the liberty of the giver in willing and acting nor the reputation of the one aspiring to the benefice is injured.

Note. Those means must be directed against the neighbor; but if they are directed against the benevolent giver of the hoped-for good, then they will be formally unjust toward the one hoping for the benefit only if they directly redound to his damage; for example, if the benefactor is struck with fear, lest he ever confer a benefit on anyone.

921. PRINCIPLES. I. To impede another efficaciously, even by non-violent means, from obtaining a good owed to him from justice is unjust damaging, whether it is done directly or indirectly, without a just cause. The reason: in this case it is verified that your action is the true cause of the damage inflicted on your neighbor. See what will be said in nn. 949 and 979 concerning an effectively unjust action and concerning unjust counsel.

From these things conclude: If someone without cause moves a father by prayers to this, that he deprive his son of a due inheritance, he is the author of the damage which the son suffers. - Generally, in whatever way truly efficacious impediments are set against the strict rights of a third party, there is injustice, which obliges to restitution.

II. To impede one's neighbor efficaciously from obtaining a good to be conferred from free will will be unjust damaging only then, if it is done by unjust means. The reason is that, as regards goods of this sort, another does not have a right, since they are to be conferred freely.

We said 1. It will be unjust damaging. But the magnitude of the damage to be repaired here must not be measured from the magnitude of the goods which were expected, but rather from the hope itself which the neighbor had. Therefore in practice such a damager will always be bound to less.

2. Only then ... if it is done by unjust means. There will be no unjust damaging if someone acts from hatred or vengeance; there will be only a lesion of charity.

Conclude from what has been said: a) He is not held to restitution who, although he does this from hatred, without deceit or force moves a testator not to leave an inheritance to a friend; who dissuades a Bishop from conferring on someone a simple benefice, for which a competition is not used; who by lies impedes the treasury from obtaining a sentence favorable to itself for juridic fault (III, 583, 588). Cf. Lehmkuhl, Cas. Consc., nn. 690-694; Ami du Cl., 1903, p. 297.

b) But he is held to restitution who calumniates a poor person, lest he obtain alms; a servant, lest he be admitted to service, etc. He is held, even if he only foresaw these inconveniences, provided the privation of the hoped-for good is to be ascribed to his calumny.

c) He is held to restitution who suppressed another's open letters, or retained them so long until he himself or others anticipated the writer in obtaining, in his place, the good which he expected. The same must more probably be said of him who, although he delivered the letters in due time, used the knowledge which he had acquired from them, so that he might anticipate or impede the writer (III, 585). See what is to be said in n. 1188.

III. To impede someone from averting the damage of one's neighbor is unjust damaging if it is done by unjust means, or if he who is impeded has been deputed by office to avert the damage. The reason for the first is clear from the preceding principle. The reason for the second is that, from the fact that he must avert the damage by office, the neighbor has a strict right to this, that you not turn him away, even by persuasion, from fulfilling his office.

Note. Here it is always supposed that the means employed place an efficacious impediment (cf. n. 980).

It is asked. If someone impedes another, even by unjust means, from obtaining a good which cannot be accepted or conferred without sin, whether he must restore?

Resp. Negatively, provided the acceptance or conferral is sinful on the part of the thing, for example the donation is prodigal, the testamentary disposition is illicit. The reason is that, although there is sin in the fraud or calumny employed, nevertheless no new malice of injustice is joined to this by reason of the impediment placed, since the neighbor possesses neither a right to the good which he seeks, nor a right not to be impeded by any means whatever from obtaining this good. Cf. Lehmkuhl, I, 1162.

922. An unjust distributor of public offices injures principally distributive and legal justice, and subsequently commutative justice (cf. n. 400).

It is asked. Whether he who chooses an unworthy or less worthy person is held concerning the damage that follows?

1. With respect to the society: a) He who chooses an unworthy person is held concerning the damages which thence come upon the community and were foreseen. The reason is that, by force of a quasi-contract between himself and the society, and often by force of the stipend which he receives, there lies upon him an obligation from justice to procure the good of society, and consequently not to choose an unworthy person. - b) He who chooses a worthy person, while passing over a more worthy one, more probably is held to nothing toward society, even if perhaps he has sinned gravely. The reason is that the society is not judged to bind electors by so rigorous a title, namely by the title of strict justice, to choose the more worthy (III, 585; IV, 106).

2. With respect to those to be chosen: a) More probably he is held to nothing toward the worthy or more worthy person passed over, if no competition has been instituted. The reason is that he has violated no one's strict right. b) It must be said otherwise in the case of a competition, as is very commonly taught against some, whose opinion nevertheless St. Alphonsus does not dare to condemn as improbable (IV, 109; H. Ap., XIII, n. 37).

The reason for doubting is that public offices and benefices are instituted solely or principally for the common good; and therefore they are not conferred as prizes promised to those competing in a contest, which are instituted principally as rewards of merits. - A fuller discourse concerning these matters will be given in n. 2240. Cf. Noldin, II, 454.