Restitution for Cooperation in Injustice

Cooperators and Restitution.—Restitution is owed for cooperation in injustice when the cooperator becomes at least partially an unjust and efficacious cause of damage to another. It should be noted that this cooperation may be of a limited kind, as when it extends only to the mode of the damage, or when it is not indispensable to the commission of the injury.

(a) Thus, he who cooperates only as to the mode of injury is probably liable only for that damage which he added to the substantial damage. Thus, if Balbus intended to steal $10, and Claudius persuaded him to steal $20, it seems that the influence of Claudius extended only to the amount of $10.

(b) He who cooperates, but whose assistance is not necessary, is bound to restitution as a cooperator, since he is an unjust and efficacious cause of damage. Thus, if Caius steals for Sempronius, knowing that, should he refuse, Mercurius would carry out the orders of Sempronius, the readiness to steal on the part of Mercurius does not excuse Caius or make his act any less harmful.

Positive cooperators in injury are bound to restitution when their act is the unjust and efficacious cause of the damage. The principal cases of positive cooperation are the following:

(a) a mandator is a superior who explicitly or implicitly commands an inferior subject to commit an act of injustice, as when a father bids his son to steal. The mandator bids another to act in his name, and therefore he is the principal and not the accessory or secondary cause of injury. He must indemnify both the victim and the agent for losses he caused them; but he is not liable if he effectively recalled his mandate before the damage was done;

(b) an advisor is one who through instruction or persuasion induces another person to commit an injury which is not done in the name of or for the benefit of the advisor himself. He must make restitution both to the person whose injury he recommended and to the person to whom he gave the advice for the damages he brought upon them. Those who give wrong advice in good faith, or who recall their advice before the damage is done, are generally excused from responsibility. Bad example does not seem to be equivalent to bad advice, and he who recommends a lesser evil only because he wishes to prevent a greater one is not an efficacious cause of the lesser evil (see 1502, 1503);

(c) an implicit advisor (palpo) is one who by flattery, excuse, blame, ridicule or other such indirect means leads another to commit injustice against a third party. The implicit advisor is bound to restitution for damages caused or reparation denied through his fault;

(d) a protector or encourager (receptans) is one who knowingly and willingly bestows upon a malefactor, as such, security or comfort, in order that the latter may do injury with greater confidence or omit restitution for evil already done. He is bound to restitution for the unjust damage or retention of property caused by him;

(e) a consenter is one who gives his vote, decision, or approval to injustice, or denies it to justice. He must recall his consent to iniquity before evil results from it, and he must make restitution for damages that depend on his conduct;

(f) a partaker in injustice is one who gives assistance in the commission of injustice, positively and physically, by sharing in the injury or in some previous or subsequent act naturally connected with it. If he is a cooperator in unjust damage, he must indemnify the injured party; if he is a cooperator in unjust retention of property, he must give back to the owner the stolen goods received by him (1774).

Negative cooperators are those who by their silence or inaction permit an injury to be done or to go unrepaired. They are bound to restitution for the damages caused by them; but it seems that per se at least they are not bound to restitution for bribes taken by them or fines lost through their fault. Their responsibility for damages supposes the usual conditions, namely: (a) they must be the efficacious causes of damage, and hence if their silence or inaction is involuntary, or if outcry or resistance would be useless they are not responsible; (b) they must be unjust causes, that is, there must be an obligation to act owed by reason of strict right, contract, or implied contract. Examples are confessors who culpably neglect to give penitents needed spiritual advice, parents who permit damage to be done by their children who have not the use of reason, voters who absent themselves and thus cause damage they were bound by contract to prevent, owners of animals who sinfully permit their beasts to ravage the fields of another person, doorkeepers who allow thieves to enter a house under their charge, collectors who permit bills to go unpaid. But if the obligation is owed by reason of some other virtue than commutative justice (e.g., one is bound only in charity to turn in a fire alarm when one notices a fire, if one is not the custodian of the house), one sins, and at times gravely, by inaction; but there is no duty of restitution.

The Circumstances of Restitution.—By the circumstances of restitution are understood the persons by whom and to whom compensation is to be made, the things to be restored, the manner, time and place of restitution.

The persons bound to make restitution are all those who singly or cooperatively commit injustice. But when several commit injustice together, the following kinds of causes of the injustice must be distinguished:

(a) the causes are equal when there is no subordination among the cooperators; they are unequal when one is a principal upon whom the others depend as secondary causes or instruments (e.g., when one hires thieves to steal for one);

(b) the causes are considered as total causes of the injury when they are principal causes, or equal but indispensable cooperators, or conspirators; and perhaps also if they are sufficient causes (e.g., Caius and Sempronius each fire at a neighbor’s cow and each inflicts a mortal wound), or if the thing damaged is either not divided (such as a vineyard) or indivisible (such as a painting). In other causes cooperators are considered as partial causes of the injury.

Cooperators in damage are bound to restitution either in solidum or pro rata.

(a) Thus, they are bound in solidum (i.e., jointly and severally) for all the loss when they are total causes of the damage, But the principal cause is bound absolutely, the secondary or equal cause only conditionally, that is, the principal must pay all the restitution himself, the others must pay all only when the principal or other associates fail to do their duty.

(b) They are bound pro rata (i.e., each one according to his share) when they are only partial causes of the damage. The obligation of restitution in solidum should not be imposed, if it is uncertain, or if the cooperator is in good faith and the admonition would only produce harm.

The order of restitution among cooperators in injury is according to the priority of the obligation of one to that of another, in the sense that one is obliged to pay all and the other is obliged only in the former’s default. This order of priority in obligation is in force when many cooperators are bound in solidum and when they cooperated in different ways (e.g., one as possessor, another as advisor, another as performer, etc.). The order generally given by moralists is as follows:

(a) the possessor is bound first of all, since he has the goods of another and the goods call for their owner;

(b) the cooperators are bound next in the following order: the originator (such as a perpetrator acting in his own name, or a mandator); the perpetrator acting in the name of another; the others who aided the commission of the act (such as advisors, flatterers, etc.); those who did not prevent or resist injustice.

The obligations of cooperators when restitution in full is made by one of their number, or when condonation of debt is made to one of their number, are as follows: (a) if restitution was due pro rata, the other cooperators must indemnify their associate who paid all, or must pay their shares to the injured party who gave condonation only to one of their group;

(b) if restitution was due in solidum, payment by or condonation to a principal cause frees the secondary causes; but payment by or condonation to a secondary cause does not exempt a principal cause, and the latter is still held either to the secondary cause or to the injured party, as the case may be; payment by or condonation to an equal cause does not exempt the other equal causes.