Article I: On Unjust Taking

S. Th. II-II, q. 62, a. 4.

289. The first title of restitution is unjust taking (benadeeling). — An unjust receiver or damager is one who voluntarily inflicts damage on another without a just cause, even without gain, whether physically or immediately through himself, or morally and mediately by cooperating with another. Damage is an unjust detriment inflicted upon a neighbor by the action of another, whether by an internal act, as by rash judgment, or by an external action, as by taking away, destroying, detaining another's thing, for example, by theft, fraud, usury, or by not impeding what from justice one is bound to impede, or by cooperating with the same. Now "whoever damages someone seems to take away from him that in which he damages him: for damage is spoken of from the fact that someone has less than he ought to have... And therefore a man is bound to restitution of that in which he has damaged someone," q. 62, a. 4.

290. The general principle is: In order that the damager be bound to restore, three conditions are required together, namely, that the action (or omission) be truly, efficaciously, and formally unjust; or that the cause be 1) unjustly damaging, namely, that it inflict rigorously unjust damage or injure strict right, 2) efficacious of the damage, and 3) culpable.

291. The damaging action must be truly unjust, that is, violate the strict right of another and consequently injure commutative justice; otherwise it would not be an injury strictly so called, nor would it bring the obligation of restoring. But it is unjust:

1. if it takes away or destroys a thing in which another has a right in the thing;

2. if in any way it impedes that a thing be had by another, to which another has a right to the thing;

3. if by an unjust means it impedes another from justly obtaining some good to which he does not have a strict right, because each one has a strict right not to be impeded by an unjust means from obtaining a good. In this case, the damager must repair not so much the good itself, unless it would certainly have been obtained, but rather the hope of obtaining it, which he injuriously snatched away from the other.

Hence a) he is not bound to restitution who, while he uses his own right, harms others; for example, he who, by intercepting veins of water or by trading justly, is the cause why another takes or sells less; he who by mere persuasions, counsels, or prayers persuades another not to make a legacy or confer an office on another who does not have a strict right to it; he who, fleeing from enemies, tramples another's crops;

b) on the contrary, he is bound (whether an advocate or a judge) who impedes a creditor from obtaining payment of a debt, or by persuasions induces a master not to pay wages to a servant;

c) a fortiori he who uses unjust means, namely force, fraud, deception, calumnies, unjust divulgation of a secret, or detraction, for harming another; for example, he who by force or fraud impedes an uncle from making a testament in favor of a nephew or friend, or a notary from writing it; he who by calumnies prevents a rich man from bestowing alms on such a poor man, or a superior from conferring an office on someone worthy; he who, by unjustly defaming a servant, bars him from his service; he who, by intercepting letters or spreading calumnies, harms other merchants in trade; he who, by a false title of consanguinity or of service furnished, extorts gifts, money, or legacies; he who, pretending to be poor, obtains alms: this last, however, ordinarily will be able, from the intention of the owner, to restore to other poor persons, unless the matter concerns a gift of greater moment;

d) but he is not bound who by either just or unjust means impedes someone from the attainment of an illicit good, which, namely, could not licitly be conferred or accepted, because there can be no right at all to obtaining it; for example, he who, by uncovering hidden crimes or even by calumniating, impedes an office from being conferred on someone inept or unworthy; he who turns away a prodigal man from giving to one who pretends to be poor.

292. The damaging action must be efficaciously unjust; for this there is required damage that has followed in fact — and not only been intended — and indeed from the action as from its cause per se, which, namely, flows into the damage from its nature and proper force, and from which it follows of itself necessarily. For no one is bound to repair damage unless he truly is the author of the damage, that is, unless physically or morally, through himself or through another, he was its true efficient cause, total or partial. Therefore the intention alone of the damage, or occasion, or condition, or cause per accidens is not sufficient.

Hence he is not bound to restore: 1) who, with the intention of harming, posits a damaging act when the effect has not followed: for thus commutative justice is injured affectively, but the right of another was not injured effectively;

2. who was the sole occasion of damage, for example, he who by evil examples of fraud or theft found imitators; he who, after theft or homicide had been committed, provided an occasion for suspecting or punishing an innocent man, even if he intended this, since not he, but the accusers and condemning judges, are the true cause of the injustice; — unless, however, he exercised some influence into it, as if by design he used another's clothing or instruments so that the other might be accused: for then he is a moral cause positively moving to this, that the other be held as guilty;

3. who was a mere condition without which the injustice would not have been committed: thus one who furnishes or sells to another poison, weapons, or instruments by which a crime is perpetrated; — unless, however, this were done with that end manifested in some way, or the means were determinately handed over or sought precisely for an unjust action: for then he would be a cooperating partial cause (n. 247, 1);

4. indeed, who is only a cause per accidens, even if he intends the damage: for then the action of the agent does not have a sufficient connection with the damaging effect, but that effect is produced by the concurrence of another cause to which it must be imputed. Thus one who serves wine to a drunkard, foreseeing great damage from drunkenness; one who lightly wounded someone who dies from the inexperience of the physician; one who infects a cup with poison but places it in a very remote place to which the enemy is not accustomed to go, yet wishing that he drink, as in fact happens; one who takes away from an avaricious man a thing of small value, even with the intention that he die from sadness: for the true cause of this death is not the theft, but avarice. A fortiori one who did not close the door so that a thief might be able to take away silver vessels, while the thief entered through a window, because the damage did not follow from the omission of not closing the door. Likewise, one who lightly wounded someone who dies from the inexperience of the physician is bound concerning the wound, not concerning the death. And one who kindles a fire in a remote place which a wind unexpectedly throws into the crops is not the per se and responsible cause of the conflagration; otherwise, if he kindled the fire when a wind had already arisen and while foreseeing the burning, because this would be, as it were, to conspire with the wind and to use it as a means to a harmful effect.

293. The damaging action as such must be formally unjust or culpable. — For no one is bound concerning his actions and their effects unless they are voluntary and free; whence a non-voluntary act per se imports no obligation. But a damaging action which is not formally unjust and culpable, according to this, is not voluntary and free. Therefore per se it does not import an obligation of restitution. And indeed: a) the obligation of restoring arises from a thing received or from unjust taking; but in the case there is no unjust taking, because no one does injury unless willing; b) besides, restitution on account of unjust taking is after the manner of a penalty; but penalty supposes fault.

Nevertheless, a twofold fault is distinguished by moralists: 1) moral fault and fault in conscience (by others it is called theological and before God), which proceeds from deliberation of reason and free consent of will; concerning which we have spoken above; 2) juridical fault and fault before the law, which arises from omission of due diligence required by law; from which defect of reason, coercion, fortuitous chance, and other legal causes excuse, but not simple inadvertence; and therefore it can be present without truly culpable negligence, in which case it is called merely juridical fault. Nevertheless, the law requiring greater diligence on account of the common good is just and therefore to be observed, because it favors all citizens equally for the security of dominions, and makes men more watchful lest they inflict damage on others.

And therefore, although true moral fault is per se required for inducing an obligation of restitution in conscience, per accidens merely juridical fault sometimes suffices, namely:

1. after the sentence of a judge compelling restitution: for since restitution from merely juridical fault is a mere penalty, it does not obligate until after it has been inflicted;

2. from a contract explicit or implicit, by reason of a special obligation which someone has assumed upon himself of repairing damage in any case whatever, even without moral fault; then, however, it is rather payment than restitution strictly so called.

Hence a) a physician who from inculpable error furnished a harmful remedy to a sick man neither sinned nor is bound to restitution;

b) a confessor who from inculpable error freed a penitent from an obligation of restitution, whom he cannot admonish concerning this, neither sinned nor is bound to reparation of the damage;

c) a man who by entirely fortuitous chance without any negligence killed another neither sinned, nor is he obligated to reparation of material damage perhaps inflicted.¹

¹ Cf. Prummer, Th. M. II, n. 96.

294. The obligation of restitution is measured by the gravity of the damage together with the gravity of the fault. — Hence:

1. He who from grave fault has caused grave damage is obligated under grave sin to repair it insofar as it truly was caused by him.

2. He who from either light or grave fault has caused light damage is obligated under venial sin to repair it.

3. He who from fault light because of inadvertence has caused grave damage is obligated only under venial sin to repair the damage partially, according to the proportion of the fault; because from an imperfectly human act there cannot follow a grave obligation or grave penalty, since they are not proportionate to it. Thus one who, from anger not fully deliberated, gravely wounded someone is bound not under grave sin but under venial sin, nor to repairing the total damage.

4. He who from light fault posited with full advertence has caused grave damage which he thinks light is obligated, at least under venial sin, to repair the whole damage, because he voluntarily inflicted the whole and consequently voluntarily obligated himself to it; indeed under grave sin, if in some way in confusion he adverted to the danger of grave damage, because then he took that danger upon himself. — Others, however, say: always under grave sin, because the obligation of restoring from a fully voluntary action is measured by the quantity of damage.

5. He who from multiplied light faults has caused several light damages which together constitute one grave damage: if he has thus inflicted grave damage on one person, he is bound under grave sin also to repair it, at least if in some way he adverted to the danger of inflicting grave damage, as is to be presumed and almost always happens; — on the contrary, if he has inflicted it on diverse persons so that none has suffered grave damage, he is bound under venial sin to repair the individual damages; unless he still detains a great good taken away from several: for then he is bound by reason of the thing received.

Prummer aptly notes² from Billuart:³ "Whatever may be the case in speculation about this question, commonly the authors of any opinion warn that it rarely happens in practice that grave damage is caused from venial fault; because, although venial inconsideration is frequent in surreptitious thoughts and internal movements of the soul..., nevertheless it rarely happens in external works of grave moment, which ordinarily at once present their danger and more strongly excite the mind to consideration of themselves, or at least to confused knowledge of the danger. Hence, unless it is certainly established that the inadvertence was venial, in practice it is to be held as mortal, namely conformable to the damage, and the obligation of restoring under mortal sin is to be inculcated."

² Th. M. II, n. 97.

³ Diss. VIII, art. 5.

295. The obligation of restitution does not arise from violation of legal or distributive justice, except per accidens, if commutative justice is at the same time injured, for example, if a contract is violated. Public good indeed demands that offices and benefices be granted to the more worthy; but these do not have a strict and rigorous nor complete right to obtaining them.⁴

⁴ Cf. Tanquerey, De Iustitia, n. 467-468.

Nevertheless, sometimes commutative justice is at the same time injured, with the burden of restitution:

1. in the distribution of offices and duties, if the superior chooses those altogether inept or incapable, for example, as physicians of an army, and thus is the cause of damage for society or also for its members, which will have to be repaired: from contract he is bound toward society; — but not if he chooses the worthy and fit, but passes over the more worthy, unless the designation is made by way of an onerous contract or of a contest entered upon in the strict sense;

2. in the distribution of any benefices whatever, by way of contest, namely, a) if a contestant who is truly worthy is unjustly judged unworthy and thus deprived of his strict right; in which case restitution will have to be made according to the proportion of the hope which he otherwise would have had of obtaining the benefice; b) on the contrary, if an unworthy contestant is admitted as worthy, and thus, because of the determinate number of those to be admitted, another worthy person is excluded; in which case the damage caused to him must be repaired; c) if, when a contest has been instituted precisely for this, that the more worthy be named, the less worthy is preferred to him; in which case the one distributing ought to restore to the more worthy for the damage inflicted: for then the more worthy has a strict right; — but not if the contest is instituted only for knowing in general who are fit and worthy;

3. also in the distribution of burdens, for example, of taxes: if those taxing burden some less and others too much, they are bound to repair the damage inflicted on the latter, because each one has a strict right not to be deprived of his goods beyond what is due, namely, without necessity or a just cause.

296. Corollaries. — From the doctrine set forth the following things are deduced:

1. He who culpably posited a cause of another's damage, if that damage has not yet followed, is bound to retract his fault, and in every way in which he can to impede the cause from producing the harmful effect; otherwise he is bound to restore. But if he could not impede the physical cause thus posited by him, he is nevertheless bound to repair the whole damage caused, because by voluntarily positing a cause whose influence he did not remove, he was truly, efficaciously, and formally the unjust cause of the damage, if not from actual will, nevertheless from preceding will.

2. But he who inculpably posited the cause of another's damage is bound to impede such a cause from producing the harmful effect, provided it can be done without relatively grave inconvenience, that is, without equal or greater damage; otherwise he is bound to restore under grave sin, because the effect becomes indirectly voluntary from an injurious omission, since each person, as long as he can, ought to take care lest an action posited by him harm another.

Hence a) a physician or pharmacist who inadvertently prescribes or furnishes poison, and afterward notices this, ought according to his strength to forestall the effect; — he who inadvertently casts fire into a haystack or into a forest is bound as far as he can to extinguish the fire; — he who from error gravely injures the reputation of his neighbor, or gave harmful counsel, ought to retract, etc.; otherwise they are bound to reparation of the damage;

b) but he who voluntarily administered poison to another, although afterward, repenting, he furnished an antidote but in vain, truly is the cause of the death; — he who, wishing to burn a house, brought fire to the house, even if afterward he tries to extinguish it, truly is the cause of the burned house; — he who by voluntary calumny, even if he retracted as far as he could, harmed his neighbor by damage in temporal things, truly is the cause of the damage: all these are bound to reparation.

1. From error concerning the gravity of the damage: he who from invincible error thinks that the damage which he causes is less than it is, is bound only to restore according to this estimation, because only this is voluntary; unless, however, he foresaw the whole damage in some way indistinctly or in confusion: thus if a servant alienated or destroyed a gem which he thinks to be worth 100 francs, while in reality it is worth 1,000, he must restore 100, unless at the same time he thought that it was a thing of great moment whose value could not be well determined, and thus knew the possibility of great value.

2. From error concerning the person injured: he who, wishing to inflict damage on one person, inflicts it on another, as he who, wishing to burn Peter's house, burns Paul's house, is bound to restore to Paul, because his damaging action is truly, efficaciously, and formally unjust; — whatever some have said: that restitution need not be made for the formal injury toward the first because it was not damaging to him, nor for the damaging injury inflicted on the other because it was merely material. For this is a mere subtlety.

a) For it is a material injury against Paul as Paul, but it is formal against Paul as owner of the thing destroyed; whence the injury is against a man in confusion, but against the owner of the thing, although it is invincibly unknown who that owner may be. And although the personal injury was involuntary, the real injury is fully voluntary, since someone voluntarily destroys a thing which he knows belongs to another, which suffices for moral fault and formal injustice.

b) Hence the error is not substantial, as regards the damaging itself (which would free the act from formal injustice), but merely accidental concerning the circumstances of the damaging action: the agent indeed errs concerning the owner of the thing, but at the same time he knows that the thing belongs to another, which justice forbids to be taken away, and nevertheless he wills to destroy this other person's thing. On the part, namely, of the intellect, although there is error concerning the person, who he is, there is perfect knowledge concerning what he is, or that injury is inflicted upon him; — and therefore on the part of the will, the act is borne toward an evil object, the injury of the right of the owner whose thing is destroyed.

c) Hence it is not relevant to say that the damager is so disposed that he would not inflict damage on Paul if he knew that the thing pertained to him, not to Peter: for the matter is not what he would do, but what he voluntarily did. By interpretative will he would not will the damage, but in fact he wills it. For error makes the act involuntary only concerning the person of Paul as such, not concerning the person as owner.

This is still more indubitable: 1. if the reason for inflicting damage was not the person as such, but his function or office, as if someone from hatred against religion or society wished to kill a priest or judge, and only erred concerning the person of the priest or judge;

2. if sufficient diligence for avoiding the error was not used, and from culpable negligence damage was inflicted on one rather than on another: for then this was foreseen in confusion.

3. From error concerning the substance of the thing destroyed: he who, wishing to destroy one thing, by error destroys another of the same owner, for example, he who, wishing to kill the goat of an enemy, kills the cow of the same man, is bound at least to restore the price of the thing which is of lesser value, because this damage was voluntarily inflicted from formal injury: for although he did not wish to kill the cow, nevertheless he wished to destroy another's thing and to inflict grave damage on him, although he erred concerning its quantity.

1. If doubt of fact precedes the action, that is, if the agent doubts whether the action to be posited inflicts certainly unjust damage or injures a certain right of another, he ought to inquire with diligence proportionate to the gravity of the matter; and if after examination a founded doubt endures, he ought to abstain from the doubtfully harmful action. For justice strictly obligates that we do nothing from which unjust damage of another could follow; and it strictly forbids us to expose ourselves to the danger of probably inflicting certainly unjust damage on a neighbor. In doubt of fact, the safer course must be taken (n. 90-91).

Thus a judge cannot condemn someone concerning whom he seriously doubts whether he is guilty; nor can a physician employ a remedy which is probably harmful, unless another is lacking; nor can a hunter fire a gun if he doubts whether he is about to wound a beast or a man.

2. If doubt follows the action and after diligent examination a founded doubt remains:

a) If it is doubted whether the damage was in fact caused, or whether the cause was unjust, or sufficient for inflicting the damage, the obligation of restoring is doubtful and cannot strictly be imposed.

b) If the damage is certain and the cause of the damage posited is certainly sufficient, but it is doubted whether the cause was efficacious — or whether from that cause, and not rather from another, this damage was inflicted — this is to be presumed until serious reasons are brought forward to the contrary; but if there are founded reasons for doubting, the obligation of restoring, as being doubtful, cannot strictly be imposed.

c) If the damage was certainly inflicted, and a twofold (or multiple) cause is present, of itself efficacious, but it is doubted from which one the harmful effect followed, they are bound to restore in solidum if they acted from mutual conspiracy or with advertence to mutual concurrence: because then the uncertainty concerning the author of the damage is to be attributed to the damagers themselves; and this uncertainty is already damaging in itself and especially in its consequences, for example, in the deprivation of restitution. On the contrary, if each acted entirely unaware of the action of the other, the obligation of restoring becomes doubtful for each one and cannot strictly be imposed on either, because neither is proved to be the author of the damage.

297. Question: Whether one unable to restore from goods of the same order is bound to restore from goods of a diverse order?

Thus, for example, whether he who inflicted merely personal damage by adultery, insult, killing, wounding, etc., is bound to restore from real goods and to give money if he cannot otherwise compensate the damage? St. Thomas affirms, because he who cannot restore the whole is bound at least to compensate the part which he can (a. 2, ad 1 and 2). Many more recent authors with St. Alphonsus deny this: for commutative justice obligates to restitution according to the equality of the damage inflicted; but where restitution must be made in a diverse genus, no equality is present, nor will any compensation ever be possible: by whatever money, the damage is in no way repaired, neither in whole nor in part. Namely, a right in one thing is not a right in another; whence the connection with the damage, the object being lacking, now does not exist.

Now 1) speaking speculatively, the opinion of St. Thomas seems more probable, because if someone cannot render a thing totally to equality, he is bound at least to render as much as he can; and if he cannot render the thing itself, he is bound to render in an equivalent. For although there is not equality of compensation from the nature of the thing, nevertheless there is according to the estimation of men.

2. In practice it is certain a) that the other opinion can be used, and no one can be compelled to restitution, on account of the authority of the great Doctor who holds it, St. Alphonsus; — b) nevertheless that restitution is to be advised, as all say; — c) that it is also of precept for real damage which perhaps will follow from personal damage, for example, for the care of a wound; — d) that material reparation must be furnished for personal damage if a judge has imposed it.