§ 1. ON THOSE WHO COOPERATE POSITIVELY

977. GENERAL PRINCIPLE. Those who cooperate positively in the damage of another are held to restitution, if their cooperation certainly was: 1. unjust; - 2. an influencing and efficacious cause of the damage; - and 3. theologically culpable. This is established from the things said concerning the unjust damager (n. 949).

Hence: 1. You are not held to restitution if the executor was already determined to inflict the damage by himself or through others, although by command, counsel, consent, etc., you gave scandal to him. On the contrary, you are held to restitution if by your action you truly moved him, even if certainly another would not have been lacking who would have moved him to the same thing (III, 562, 563).

2. If you influenced, not indeed into the very substance of the damage, but into the mode of the damage, for example that the damage would be inflicted more quickly, more spiritedly, or more easily by other means, you are not held to its reparation except insofar as that very mode was damaging, or certainly increased the damage; in which case you are held concerning the excess of damage alone (III, 576).

3. If you cooperated only materially, or physically, in the damage, and the principal agent certainly would still have inflicted the damage without your cooperation, you most probably are not held to restitution. Thus, for example, he is excused from restitution who holds a ladder for a thief climbing up, if the thief would have climbed up even without the aid (III, 563, fin.).

4. If there is doubt concerning cooperation, that is, concerning the influence of your mandate, counsel, consent, recourse ... taciturnity, etc., you are held to nothing (recall the things said in n. 949, it is added 4).

These things having been premised in general, one must speak of the individual cooperators. Cf. Lugo, disp. 19, s. 2; Lessius, l. 2, c. 13.

978. NOTIONS. One mandating or commanding is said to be he who asks or commands something to be done in his own name. A mandate is given either expressly or tacitly, namely by word or by deed, by which someone signifies to another that it will be pleasing to him if he inflicts damage.

PRINCIPLES. I. The one mandating is held to repair unjust damage inflicted on a neighbor by force of the mandate and at least confusedly foreseen. The reason is that he is the efficacious and culpable cause of unjust damage; for he who acts through another is judged to act through himself. - But otherwise, if he afterward only approves damage inflicted in his name or for his favor (III, 558; H. Ap., X, 43).

II. The one mandating is held concerning damages which come upon the mandatary on account of the execution of the mandate, if he drove him by fraud, force, or grave fear, and at least confusedly foresaw the damages going to follow. The reason is that he is the unjust cause of damaging. Otherwise probably, if the mandatary spontaneously, or hired by wage, wished to take upon himself the whole burden and consequences (Croix, l. III, n. 24).

From these things it follows: 1. The one mandating is held to nothing: a) if he revoked the mandate, and the revocation became known to the mandatary before the execution of the mandate;⁰¹ b) if the mandatary, from avoidable error, damaged another, for example if, ordered to kill Peter, he killed Paul; c) if the damage happened from the fact that the mandatary of his own accord exceeded the limits of the mandate. For in these cases, the damage has followed not from the mandate, but from the malice or error of the mandatary.

2. He is held to restitution: a) a Superior who ratified a purpose of inflicting damage and truly influenced it; b) the one mandating, to whom it is established that the revocation of the mandate was not heard or understood by the mandatary, for example because of deafness, distraction, or because the letters were intercepted, etc. (cf. n. 949). See Ami du Cl., 1913, p. 23.

1. If the one mandating had revoked his mandate, and the revocation had reached the mandatary later because of the negligence of the Office of posts, of itself the one mandating would be held to restitution, because his mandate continues to act, so that the action of the servant remains the action of the master; but he himself has recourse to the Office of posts, supposing that it could suspect that the letters to be transmitted contained the revocation of a mandate, and retained them from culpable negligence.

979. NOTIONS. One counseling is said to be he who by counsel, prayers, promises, and therefore by corrupting, suggestion of a motive, or showing the way of harming, induces another to inflict damage.

He differs from one mandating because the executor of a mandate acts in the name and for the advantage of the mandator, but the executor of counsel acts in his own name, although from the impulse of another's counsel.

Counsel is: 1. by reason of the act, doctrinal, if the one counseling pronounces concerning the justice or injustice of some act; or impulsive, if he moves the executor to the act; 2. by reason of the mode, naked, if he merely states an opinion concerning the justice or injustice of the act, or merely exhorts to it, no motives being added; or clothed, if he brings reasons by which the counsel, whether doctrinal or impulsive, is confirmed.

980. PRINCIPLES. I. The one counseling is held to repair damage inflicted by the executor, if he gave to him unjust, efficacious, and gravely culpable counsel. This is established from the things said (n. 977), and is confirmed from the 39th proposition condemned by Innocent XI: "He who moves another to inflict grave damage on a third party is not held to restitution of that damage inflicted." Therefore the one counseling is held, who has known his own lack of skill and has foreseen that damage at least in a confused way.

It is irrelevant to the matter that, even without his counsel, the damage would have happened otherwise, for example by inundation, or that it would have happened that another would give the same counsel. Indeed the one counseling is held if counsel, of itself not sufficiently efficacious, moved together with the counsel of others (cf. n. 992 seqq.).

From these things you will gather: 1. One persuading a lesser evil to one prepared to inflict a greater evil with respect to the same person is held to restore nothing, because he is not the cause of the damage but the cause of the lessening of the greater evil. But he is held if he persuades this to the prejudice of a third party; for with respect to him reasonably unwilling, the persuasion would be an unjust cause of damage. Except if this third party ought from charity to suffer this lesser evil in order to avert the very grave damage of a neighbor, namely lest the neighbor himself fall into very grave necessity (cf. n. 520). St. Alph., III, 565, 577.

2. He who, to one already determined to damage, persuaded only the mode of inflicting it, is not held to restitution if the mode was merely accidental, as commonly are the circumstances of time, place, and means. Otherwise, if the mode has somehow redounded into the very substance, for example if it increased the damage, if from uncertain it rendered it certain (III, 563, 576).

981. II. The one counseling generally is not held concerning damages which come upon that very person to whom he gave counsel. The reason is that the one counseling, unlike the one mandating, brings no force upon the one executing; besides, he who seeks counsel uses it freely. But injury is not done to one knowing and willing.

Except: 1. if the one counseling, by reason of state or duty, is considered expert, for example an advocate, physician, confessor; - 2. if the counsel was given deceitfully, namely for this purpose, that damage would come upon the one seeking counsel; 3. if the counsel was doctrinal, and the one counseling affected expertise which he lacks. For in these cases there is deception and damaging injury, from which the obligation of restoring arises (III, 564, 578).

982. III. The one counseling who revokes the counsel given before the event of the damage is excused from restitution. The reason is that, although the counsel was even clothed, if the one counseling tries in the better way he can to dissuade the damage, by bringing forward at least the reason of eternal salvation, which for a Christian ought to outweigh all other worldly reasons, the damage no longer happens by force of the counsel, but from the malice alone of the executor. But if he cannot turn the executor away from inflicting damage, he is held from justice to warn the one to be injured, so that he may guard himself (III, 549).

983. NOTIONS. One consenting is here understood as one who, by unjust suffrage, vote, or sentence, is the cause of another's damage. Here come those who decide or do something by common counsel; likewise counselors, deputies, senators, judges, etc., who concur positively in issuing laws or sentences, in distributing offices, etc.

The suffrage of the one consenting is either consultative or decretory, according as it is given by way of counsel only, or by way of sentence by force of which execution must be made. Besides, consent is given not only by positive action, but also by negation, absence, silence, abstinence from suffrage, etc.

PRINCIPLES. I. One consenting by a merely consultative vote is held to restitution just like one counseling, that is, insofar as he certainly and efficaciously has induced a Superior, or another, to inflict unjust damage. But this can become known to him from circumstances, for example if he knows that the Superior was moved wholly or partly by his vote (cf. n. 980).

984. II. One consenting by a decretory vote is held to restitution like one mandating, that is, whenever and insofar as he knowingly and freely gave efficacious consent into the unjust damage of one's neighbor. For in this case, the damaging decree arises from all efficacious suffrages, or those necessary for the validity of the decree; hence each one is held in proportion and in solidum, as will be explained below.

Hence: 1. The one consenting is not held concerning the damage: a) If in good faith he cast an unjust vote; yet, when the error has been discovered, he is held, if he can, and indeed from justice, to revoke his vote. b) If the suffrage, although unjust and culpable, did not influence the damage; for example because it was given when the number of necessary votes had already been completed, or because it was authentically revoked at an opportune time. - c) If, fraud being excluded, he impeded another by his suffrage from obtaining a good to which the latter did not have a strict right (cf. n. 921).

2. But in truth, he is held concerning unjust damage: a) If he was among the first voters whose suffrages were necessary for defining the matter, even if he foresaw that others who would consent were not going to be lacking. b) If he was indeed among the last or among the superfluous, but gave the unjust suffrage from a prior agreement or conspiracy. - c) If at the same time with others, by way of one, he gave his vote, for example by acclamation (III, 566).

Note. As regards a judge who orders an unjust sentence to execution, see below n. 2292.

It is asked. Whether one doubting whether his suffrage was among the prior and necessary ones is held to restore?

Resp. The true opinion teaches that the one doubting is held like the others, in proportion, and, if others do not restore, to the whole; because at least by his suffrage he worsened the right which the damaged person had of exacting restitution of the damage from another furnishing suffrage, by rendering the matter uncertain. Hence there is by no means doubt that he is in some way a concause of the whole damage1 (Lugo, disp. 19, nn. 22 and 85).

Note. One consenting who is not held to restitution precisely by force of decretory suffrage, for example because he was one of the last voters, can be held by another title, namely: 1. as one counseling, if namely he foresaw that the Superior or prince, or a superior legislative assembly, would be moved by the great number of superfluous suffrages to approve an inequitable law or sentence which otherwise would not have been approved; 2. as one not resisting, if with his contrary vote he could have impeded the damage and ought to have done so from justice. See what is to be said in n. 988.

985. I. A flatterer is he who, by praise, adulation, reproach of sloth, or otherwise, impels another to inflicting damage. He is subject to entirely the same obligations as one counseling, provided he knows, and this suffices, that he efficaciously influences the damage (III, 567).

II. One receiving or furnishing recourse is he who furnishes security or protection to an evildoer; from which follows the infliction of damage or the omission of restitution.

Such a one is held to restitution insofar as, with grave fault, he positively and efficaciously influences unjust damage: for example by receiving a thief, hiding the theft or the instruments of theft, and furnishing such things by which the evildoer is encouraged or helped to inflict damages, or not to repair those inflicted (cf. 949).

But he is not held who, after the theft has been perpetrated, helps the evildoer to flee, or who receives him into safety with the theft from friendship, or from office, as an innkeeper; provided by this he does not influence future thefts, by furnishing to thieves the hope of refuge in the future. Nor likewise is he held who receives a thief from fear of grave damage; for this one must generally be regarded as participating in the delict, and therefore as such must be treated as regards the obligation of restitution (III, 568; H. Ap., X, 52).

986. NOTIONS. A participant is twofold: one in the prey, another in the delict or in the damaging action (cf. n. 517).

Concerning a participant in the prey, or in the thing unjustly taken away, since he is the possessor of another's thing, we have already spoken (n. 940 seqq.). - Concerning a participant in the delict, there will be speech here.

A participant in the delict can cooperate in the damage of one's neighbor either formally or materially; if he cooperates materially, he can do this proximately or remotely, immediately or mediately, as we noted above (n. 517).

PRINCIPLES. I. He who formally cooperates with another in a damaging action is always held to restitution. The reason is that the action of such a cooperator is strictly, efficaciously, and formally unjust.

Hence, if damage has followed, he is held to restitution who acted as guard for the greater security of a thief or assassin. Likewise, he who by an intrinsically evil action has cooperated in the damage of another, for example if two consented in this, that they should set fire to buildings.

987. II. He who only materially concurs with another in the infliction of damage can be excused from sin and from restitution, if namely he acts from a just and proportionate cause, without a depraved mind of harming. The reason is that, in such conditions, cooperation is neither illicit nor unjust. 1. It is not illicit, even if it is an aid to a thief or damager, because it is licit from a just cause to cooperate materially in the sin of another (n. 519). 2. It is not unjust, because, in a conflict of rights, the lesser must yield to the greater, as we noted in n. 914. Besides, since each one has the right to preserve his own goods, that action is forbidden to no one which of itself is necessary and direct for averting his own damage, although indirectly and by accident damage may happen to another. Thus a sailor licitly casts another's merchandise into the sea, lest he himself perish (cf. nn. 739, 949, Condition 1). See the holy Doctor (III, 569, 571, 697).

Hence: 1. He who helps a thief, compelled by fear of death or grave infamy, does not sin, nor is he held concerning the damage; because the owner of the thing is held to yield his right of an inferior order, and to consent, even with the loss of his own goods, that another may provide for life or for his own honor. For in an unequal or inferior cause, the condition of the possessor is not better.

2. He who positively and directly, by immediate concurrence, helps a thief to inflict damage on account of fear of similar damage in his own goods, is held to restitution; because no one can cooperate positively and directly in the damage of another in order to preserve himself unharmed in the same genus of goods; for in an equal cause, the condition of the possessor is better. Yet: a) the one cooperating does not sin if he does this with the intention of compensating afterward; b) he does not sin, nor is he held to compensation, if without his cooperation the damage would certainly and equally have been inflicted; for the saying holds: "What profits me and does not harm you, you are held to permit"; c) he does not sin, nor is he held to restitution, who participates indirectly, or only by mediate concurrence, for example by returning a sword to one about to kill, when he does this because of fear of greater or similar damage. Read St. Alphonsus, III, n. 571 (ed. G., II, p. 67), who profoundly and, as he himself acknowledges, with no one preceding him, decides this most intricate question. See also the things said above in n. 520.