Article IV: On Unjust Cooperation

S. Th. II-II, q. 62, a. 7.

309. Unjust cooperation is a concurrence given to the unjust action of another; it is direct and positive if it is done by a positive action, indirect and negative if it is done by omission of the action of one who can impede the injustice and is bound to this from justice. This can be done in nine diverse ways, as St. Thomas shows, art. 7:

One is bound to restitution not only by reason of another's thing received, if he detains another's thing, but by reason of injurious receiving; and therefore also whoever is the cause (physically or morally) of an unjust receiving is bound to restitution. And this happens...:

A. directly, when someone induces another to receive... a) either on the part of the receiving, by moving to the very receiving, which is done by commanding (1), counseling (2), expressly consenting (3), and praising someone because he receives another's thing (4); b) or on the part of the receiver, by recourse (5), because, namely, he accepts him and gives aid; c) or on the part of the thing received, because he is a participant and as it were an associate of the injustice (6);

B. indirectly when someone does not impede, though he can and ought to impede: either the silent man, who withholds a precept or counsel which would impede the injustice (7); or he who does not obstruct, who withholds aid by which he could oppose it (8); or he who does not manifest it, who conceals it after the fact (9).

Not all these modes obligate equally to restitution: "It must be known... that five of the foregoing always obligate to restitution: 1) command, because, namely, he who commands is principally moving, whence he himself is principally bound to make restitution; 2) consent, in that case, namely, without which robbery cannot be done; 3) recourse, when, namely, someone is a receiver of thieves and gives them patronage; 4) participation, when, namely, someone participates in the crime of robbery and in the booty; 5) he who does not obstruct is bound, when he is bound to obstruct... But in the other cases enumerated, someone is not always obligated to make restitution: for counsel, or flattery, or anything of this kind, is not always an efficacious cause of robbery. Whence then only is the counselor, or the flatterer, that is, the adulator, bound to restitution, when it can probably¹ be judged that an unjust receiving followed from causes of this kind."

¹ Understand in the strictly scholastic sense, as uniquely probable.

310. Principle I. Those cooperating are bound to restitution insofar as they efficaciously influence the damage, because the whole obligation of making restitution arises from an influence upon damage (C. Civ., a. 1382; C. Pen., a. 59-63, a. 73); and therefore they are bound to the reparation of every and only that damage of which at some time they were the unjust, efficacious, and culpable cause (prop. 39 condemned by Innocent XI; Rom. I, 32). Whence:

1. To induce the obligation of restitution, it is not necessary that the act of cooperation be a condition sine qua non of the existence of the damage, so that, if the cooperation had been lacking, the damage would not have existed, but it suffices if the action of cooperating has an influence upon the effect produced. Therefore, from the fact that even without some cooperation the damage would have been inflicted by the executor, it does not follow that the cooperator is exempted from the obligation of making restitution.

Hence a) if two agree in cooperating, they are bound to restitution, even if with one alone acting the injustice would have been or would not have been committed;

b) a cooperator who in reality influences the injustice is not excused from the obligation of making restitution from the fact that, if he were lacking, others would have been cooperators.

2. On the contrary, a cooperator is not bound to restitution if in fact he does not influence the damage, although of itself his action was apt to produce this influence, for example, if he to whom he gave counsel of stealing was in no way moved by that counsel, since he was already determined to act by himself or by others: for then the counsel stands merely concomitantly; and although the one giving that counsel sinned against justice, nevertheless he inflicted no damage nor in fact cooperated in the damage, and therefore he is not bound to make restitution for anything.

From these things it follows: a) if one cooperating moves only to the mode of injustice, he is not bound to make restitution unless from this modality a new damage arises; in which case he is bound only for the excess of damage;

b) if someone by his vote concurs in damage to be unjustly inflicted, he is not bound to make restitution if his vote accedes to damage already caused by others, but he would be bound if sufficient votes of the others had not preceded.

3. He who by his cooperation contributes a concurrence not to the whole damage but to only part of the damage, by partiality of effect, is bound to restore only that part.

Thus he who, while others are already robbing or setting a house on fire, also steals something or sets another part on fire.

311. A mandans (mander; bevelen or gebiederi) is one who commits to another a business to be carried out in his own name; in the case, one who by his express or tacit mandate moves another to inflict damage in his own name, namely, in favor of himself, that is, of the mandator: whether he does it by commanding or by asking, whether he has authority or not.

It can happen either explicitly: by command, threats, entreaties, hope of reward, or another positive act by which another is moved to harm his neighbor; or implicitly: by some sign, word, or deed, by which someone manifests his will, as if he complains that no one will avenge an injury done to him, as Henry II, king of England, complained that he could not have peace in the kingdom with one priest (whom all understood to be Thomas of Canterbury); but it is not enough that someone merely ratify damage already inflicted beforehand in his favor, or that he not impede another prepared to inflict it, because he is by no means truly a mandator and positive efficacious cause of the damage.

A. Toward the person damaged, the mandator is bound to repair all damages which the mandatary inflicted on the neighbor by force of the mandate, or which were morally connected with the execution of the mandate and therefore at least in confusion were foreseen, as if mutilation follows from blows with cudgels, or if, with the barn of an enemy being set on fire, the barn of a neighbor also is burned. For the mandator is the principal and primary cause, which perpetrates the damage through another; the executor is only the secondary and ministerial cause which acts for the mandator.

Nevertheless the mandator is not bound concerning damages inflicted but not by force of the mandate; namely:

1. if they were inflicted beyond the limits of the mandate from the malice of the mandatary or from error, provided the error, because of the difficulty of the thing mandated, does not as it were follow from the mandate itself: for in these the mandatary acted in his own name, but did not act in the name of the mandator. Thus, for example, if in place of a beating he inflicted death, or in place of Peter he killed Paul;

2. if the mandate has seriously and efficaciously been revoked, so that the revocation became known to the mandatary before the damage was inflicted: for by such revocation the mandate is extinguished, whence the mandatary, inflicting damage, now perpetrates it in his own name, but not in the name of the mandator. And therefore the latter is now not bound to restore as mandator, indeed in no way, unless he also was a counselor or one not obstructing: for then he would be bound under another quality.

But a) if the mandate can no longer be revoked, the mandator is bound from justice, even with at least equal damage, to use some other means to impede the damage, for example, by warning the owner, because from justice he is bound to impede it as much as he can;

b) if the revocation did not become known or another means cannot be employed, the damage truly follows from the mandate and is to be repaired;

c) if some third party maliciously impeded the revocation, he owes the mandator compensation for the restitution.

B. Toward the mandatary, the mandator per se is not bound to repair damages incurred by him: for he who entirely freely, and especially with an agreed wage, undertakes some business to be carried out, assumes in himself the perils of the execution. Per accidens the mandator is bound concerning damages:

1. if he has expressly obligated himself to furnish that indemnity;

2. if he morally coerced the mandatary by force, fear, fraud, or another unjust means, and the damages have a connection with the execution of the mandate; therefore excepted are those damages which the mandatary incurs from imprudence or rashness: for these he ought to impute to himself.

312. The counselor and the flatterer. - A counselor (conseiller; raderi) is one who moves another to inflict damage upon his neighbor in his own name; whence he is distinguished from a mandator by this, that he does not move another to act in his own name: for if he does this in his own favor, by that very fact he is a mandator. Hence the executor of counsel acts in his own name, the executor of a mandate in the name of another; and therefore, while the mandator is a primary cause, the counselor is a secondary cause; whence he is bound only secondarily to repair damages.

One counsel is doctrinal, another impulsive. Doctrinal or theoretical counsel is concerning the truth or licitness of an action, by which, namely, it is declared licit if it is illicit, good if it is bad, or bad if it is good, valid if invalid, or invalid if valid, etc. Impulsive or practical counsel abstracts from the truth or licitness of the action, but, cutting off from it, indeed with the injustice of the action supposed, nevertheless moves another to it by which damage may be inflicted.

Each is clothed or qualified, or naked or simple. The first at the same time suggests motives or means of harming: motives, namely, from which it may appear that the action is licit, honorable, easy, excusable, useful, necessary; or means by which damage can be inflicted certainly, easily, safely, by which, for example, poison is prepared, abortion is procured, a house can be invaded; the other simply induces one to harm by persuasion, entreaties, blandishments, promises, or other exhortations, for which ordinarily mere example does not suffice, which of itself alone is an occasion and not counsel, unless it is given professedly by way of teaching or invitation.

A flatterer (louer; prijzen) is to be equated with a counselor: he is one who by praising or by blaming incites another to inflict damage on a neighbor or not to repair it.

It is committed by adulation, praise, reproach of idleness or pusillanimity, exaggeration of a contumely received, mockery, whispering, etc., by saying, for example, "you are idle if you suffer this," "it is unbecoming to your state," "you lose honor if you do not take vengeance." The flatterer exercises the same influence as one offering impulsive counsel; and consequently he must repair the damage inflicted in the same way; nevertheless, he who approves damage already inflicted is per se not bound to restitution, unless the approval induces new injuries or efficaciously impedes reparation from injury.

1. if by reason of status or office, or for another cause, he publicly professes expertise, as a physician, advocate, notary, confessor, etc., and gives harmful counsel, whether a) from vincible ignorance, or b) from gravely culpable negligence, or c) from bad intention, he is bound to repair every damage arising therefrom, both to the one consulting and to a third party: for he who seeks counsel from one who is in office or professes expertise has a strict right not to be deceived by the ignorance or malice of the one consulted, with damage to himself or to a third party; whence in the case the counselor is the unjust, efficacious, and culpable cause of both damages;

2. if a merely private person gives counsel, he is bound to repair the damage inflicted on a third party, because he is its voluntary cause, insofar as he foresaw it at least in confusion; but he is not bound to restore to the one seeking counsel, unless he deceitfully affects special expertise: for he who seeks counsel from an unskilled person spontaneously exposes himself to the peril of damage and deceives himself, and whatever damage he may suffer, he ought to impute to himself and to his own imprudence;

3. each is bound from justice to retract the counsel given: with grave inconvenience indeed if he gave harmful counsel from grave fault, otherwise without grave inconvenience; but if he neglects to retract it, he is bound to restitution.

B. The counselor by merely impulsive counsel, or the flatterer, is bound to repair the foreseen damage which from the counsel was inflicted on a third person, because he unjustly harmed him; but not the damage which comes upon the one seeking counsel, because injury is not done to one who knows and consents.

Hence 1) if wicked counsel is given to him who is already sufficiently determined to inflict damage, there is no obligation of restoring, because the damage was not inflicted from the counsel which was not its efficacious cause.

2. When the other is already determined to inflict damage, if the counselor only persuades the mode of doing it, or another circumstance of place, time, etc., he is not bound to restitution; unless per accidens, if he has thus increased the damage, as if by indicating a mode he persuaded greater damage, in which case he is bound concerning this excess, or if he procured it more certainly or more safely, as if he warned that it must be inflicted sooner because otherwise it would have been impeded, in which case he is bound concerning the whole damage.

3. He who counsels a lesser evil to him who is already determined to inflict a greater one is not bound to restitution, if the damage is inflicted on the same person, because then he is not the efficacious cause of that damage but only of its diminution; on the contrary if he said that a lesser damage should be inflicted on another person determined in particular, because then he is the true cause that damage was inflicted on this one, nor is it licit to impede the damage of one with the injury of another. Nor let it be said that such a one is unreasonably unwilling against such counsel, for no one is bound with great inconvenience to yield his right, in order to avoid the greater damage of another; and even if he were bound to this, it would be from charity alone, not from a strict debt, which does not suffice to remove the nature of injury from the action (n. 246).

4. If two or more together offer wicked counsel, all are equally bound to restitution in solidum, as efficaciously influencing the damage.

5. He who, before the damage is inflicted, has efficaciously revoked the counsel (or adulation), so that the revocation became known to the one seeking counsel,

a) is not bound to restitution if the counsel was simple, which is destroyed by a simple retraction;

b) even if the counsel was clothed or attended by reasons, provided he has brought contrary motives equally efficacious or stronger, such as reasons sought from faith: for then if the other does not wish to yield to these motives and change his mind, the damage will have to be attributed to this one's malice, but not to the revoked counsel;

c) but if the counsel was clothed with an indication of the mode or means of perpetrating the damage, the counselor from justice is bound not only to revoke the counsel, and by valid reasons to induce the other not to use the counsel; but also, if he cannot turn him away from the unjust purpose, to warn the owner that he take care for himself, or in another way to impede the execution as much as he morally can, as was said concerning the mandator; otherwise he will be bound concerning restitution on account of the damage.

As to the flatterer, it should be noted that an influence is removed with more difficulty from blame than from praise.

313. One consenting (consentir; toestemmen or behagen) in general is everyone who approves a deed, but then he does not influence the damage except per accidens; but in the present matter there is understood one who by his consent exteriorly manifested, namely by words or other signs, per se influences the damage to be inflicted.

Consent is also favor, approval, sentence, or vote, whether of election or of resolution; but vote is twofold: merely consultative, which belongs to cooperation by counsel; and decretory, which has the force of a precept or law, and constitutes a special mode of cooperation, as in senators or deputies who by vote establish an unjust law, in judges or jurors who pass an unjust sentence, in collators who make an unjust conferral of office, in electors who promote an unworthy person, all of whom act in almost the same way as mandators.

One consenting is bound to restitution when his consent was an efficacious and culpable cause of damage unjustly inflicted. Hence:

1. if there are several consenting, and all together give an unjust vote, whether by putting in a secret ballot or by rising, all equally concur in the damage and are bound to restitution;

2. if from mutual conspiracy they give wicked votes, all are likewise bound;

3. if they give a vote successively and by living voice, a) certainly those are bound to restitution who cast their vote earlier, until the number necessary for the wicked sentence is completed, even if they foresee that those who would furnish consent will not be lacking, because they truly influence the sentence and consequently the damage; b) but those who, after the sufficient number has been completed, give a vote, are also bound if the votes are revocable, because the damage is not yet consummated; probably they are not bound if the votes are irrevocable, because the damage has already been accomplished and consequently they are not its efficacious cause, unless sometimes per accidens, insofar as they could be a cause, after the manner of one counseling, that the decree be entrusted to execution more easily or revoked more difficultly;

4. if, before the sentence is passed, they efficaciously revoke the unjust vote, they are immune from restitution, because no efficacious cooperation is now present;

5. those who give a vote unjust of itself, but concerning a thing not intrinsically evil, when it is the only means of impeding a greater damage, can be freed from injustice and from repairing the damage; especially if it is publicly known that it is done in this way only to avert a greater evil.

In doubt whether someone gave his vote after the sufficient number of votes had been completed, he is bound to restore, at least pro rata and according to the measure of the doubt, because, although he has not certainly caused the damage, nevertheless he certainly caused uncertainty about the author of the damage, insofar as he brought it about that, on account of the exceeding number of votes, some are not certain who are bound to restore in solidum; and thus he has now made worse the condition of him who suffered the damage, in relation to reparation of the damage.

314. A receiver or one furnishing recourse (receler, verhelen; proteger; beschermen) is one who furnishes to another security, convenience, protection, custody, so that unjust damage may be inflicted or so that damage already inflicted may not be repaired. He is, namely, one who in bad faith, by receiving another's thing or by protecting the author of damage, whether in person or in the instruments of his wrongdoing, impedes restitution, or even induces to harming.

Therefore someone can be a receiver in two ways, either by real recourse or patronage, when he receives, buys and sells, guards, or changes another's things which have been taken away; or by moral recourse or patronage, while he furnishes refuge or security to a malefactor as such: for one who would not receive him as a malefactor, but by title of blood relationship, friendship, mercy, or by reason of office, for example, of innkeeper, or of necessity in order to avoid inconvenience, and who did not intend to furnish aid to him, would not properly be a receiver.

One receiving is bound to restitution insofar as he renders the malefactor more secure in inflicting unjust damage or is the cause that a good unjustly taken away is not restored; and indeed, if he is an unjust possessor of the thing, he is bound in the first place by reason of the thing received, otherwise after the author of the damage, because he too was its efficacious cause, but a secondary one.

Receivers are and are obligated to restitution:

a) Those who before the deed offer malefactors their house as an asylum, or after the deed receive them, even as tavern-keepers, and hide them lest they be captured, or deliberately guard and hide their instruments and thefts.

b) Merchants and innkeepers who hide or accept as a price money or things taken away from parents or masters by sons of families or servants.

c) Dealers in old wares who indiscriminately buy at a cheap price all things brought to them, although they can easily suspect that they are stolen things.

d) Princes and military leaders who favor or protect soldiers or subjects exercising thefts, robberies, exactions, rapes.

e) Those who furnish aid to a malefactor, by watching and warning if perhaps those should come upon him who are about to denounce or impede the crime.

f) Advocates who patronize manifestly unjust civil cases, or unjust accusers in a criminal case; but not those who only defend malefactors so that they may be freed from punishment or from so great a punishment, since according to the law these can or even ought to have a defender.

315. A participant (participer; mededeelen) is so either in the thing unjustly received, or only in the unjust action or unjust receiving: the first must restore by reason of the thing received and consequently in the first place, in the same way as the receiver of another's thing; the other by reason of physical and strictly so-called cooperation toward another's damage.

By reason of intention, participation is formal if the participant consents not only to the unjust action but also to the unjust intention of the principal agent; or material, if from another intention he concurs in the unjust action. Thus he who hands over the keys of the house to a thief so that he can steal cooperates formally; but materially if he does it from the sole end that he may avoid damage to himself.

By reason of the mode in which concurrence is furnished, participation is immediate or mediate. It is immediate if someone with another posits an action by which, with no other action interposed, damage is inflicted on a third party, for example, if someone breaks open the door of a house with a thief, or removes another's thing by carrying it with him; mediate, if someone posits an action from which damage to a third party follows through the subsequent action of another and through the malice of another, for example, if someone hands over the keys of a house to a thief or supplies other means to another which the latter abuses for perpetrating injustice. These things having been posited, the following principles hold:

A. He who formally participates with another in an efficaciously unjust action is bound to restitution: for since he intends to do injury and in reality does it as co-executor or as mandatary, he is the truly unjust, efficacious, and culpable cause of the damage inflicted.

B. He who materially participates in an unjust action can be excused, provided that the action by which he cooperates is not intrinsically evil, and there is present a proportionately grave cause, as is established from the general doctrine concerning the morality of cooperation in evil (I, n. 489).

The principle per se and regularly holds of mediate cooperation alone, which consequently on account of a grave reason can quite easily be licit; but not of immediate cooperation, which generally is intrinsically evil. Hence:

1. it is never licit immediately to participate in the killing of an innocent person, since such an action is intrinsically evil;

2. it is not licit immediately to participate in the mutilation of an innocent person, unless for preserving his health or life, because in this case alone mutilation is licit;

3. it is not licit immediately to participate in calumny or in positive unjust contumely, because the actions are intrinsically evil;

4. generally it is illicit immediately to participate in another unjust action, unless probably on account of a most grave cause, for example, for avoiding death or a wound, in theft or injustice toward the external goods of fortune: for then the owner is judged to consent to this, because he would not be reasonably unwilling.

Yet this must be understood with the due restrictions necessarily to be added.² For:

² Cf. Waffelaert, De Iustitia, t. II, n. 300; Theol. Mechl., Tr. de Iure et Iustitia, n. 45, q. 2.

a) You cannot without sin concur toward damage to the goods of another so that you may preserve yourself unharmed in your own goods of the same order, unless you do this with the intention of compensating the damage; otherwise the owner would be reasonably unwilling.

b) Nor, for avoiding damage simply grave in reputation, can you cooperate in inflicting grave damage on another in fortune, unless under this condition, that you can and wish afterward to repair it, or that the same damage would equally be inflicted by the principal author without you.

c) Even if there is question of damage to be inflicted for avoiding death, mutilation, or a similar extreme evil, it does not follow from the fact that cooperation is licit that restitution ought not to be made, once the necessity has passed, by that cooperator, when he can. For those things which are taken for meeting extreme necessity are to be restored by him who is rich in hope.

316. Negative cooperators: the silent, the non-obstructing, the non-manifesting. - The silent one (niet berispen) is one who, before damage has been inflicted, is silent, when by word or sign, by shouting, reproving, warning, forbidding, he can and ought to impede it, as a leader of soldiers being silent when he sees damage to be inflicted by the soldiers, a guard of a house who, when a thief approaches, does not shout. - The non-obstructing one (niet beletten) is one who, while damage is being inflicted, does not impede it, when he is bound to this, as officers who do not prohibit an unjust aggressor from killing an innocent man, guards who do not drive thieves away, an advocate who according to his office does not defend his client, a magistrate who permits crimes to rage. - The non-manifesting one (niet overdragen) is one who, after damage has been inflicted, does not denounce the malefactor, while he can and ought to furnish this, as guards of a house who do not warn the owner concerning a theft committed, guards of taxes who say nothing about those things which defraud taxes.

Negative cooperators must restore when 1) from commutative justice or from office or pact, they are bound to impede damage, and 2) they can impede it reasonably without graver inconvenience, and 3) in fact they do not impede it.

It is necessary a) that they can and ought to impede it, otherwise cooperation is not voluntary and culpable; b) that, though they can, in fact they do not impede it, otherwise cooperation is not efficacious; c) that they are bound from commutative justice, and not from charity alone, piety, or legal justice, otherwise cooperation is not strictly unjust nor does it induce an obligation of restoring, since commutative justice alone obligates to restitution. But this obligation of justice can arise from an explicit or implicit pact or contract by which they freely undertook it, as with guards of forests or taxes, or from an office undertaken by force of which they are bound to prohibit damage, as with military leaders, tutors, judges. Yet these regularly are not bound to impede damage with graver inconvenience to themselves, say with danger of life: for no one is judged to wish to obligate himself when this cannot be done without grave detriment to himself, unless this was brought into the pact explicitly or implicitly, or unless it is necessary for the public good, as with soldiers.

Negative cooperators are and are bound to restitution:

1. Public officials upon whom, from a special office, it is incumbent to watch over public tranquility or the indemnity of citizens, as to damages which, because of culpable negligence, they do not avert from citizens.

2. Tutors and administrators of goods who do not impede damages impending over pupils, minors, and others whose goods they administer.

3. Counselors, electors, deputies, etc., who, abstaining from a vote from grave fault, do not impede a wicked sentence, election, law, if from special office they are bound to avert the damage following therefrom.

4. Guards of mountains, vineyards, forests, fields, fishponds, etc., who from grave negligence do not impede damages or do not manifest those done, unless they are of lesser moment, or the consent of the owner can be presumed, or they are permitted in a certain measure by legitimate custom; likewise prefects of taxes who permit these to be defrauded or do not denounce those defrauding them, unless in matters of lesser moment, or in those for which by received usage the tax is not customarily exacted so rigorously. - Nevertheless they are not bound to pay fines not yet imposed, to which those damaging or defrauding would have been condemned, because the treasury does not have a right to them except after the sentence of a judge.

5. Servants who, in those goods which are committed to their special care or custody, do not impede thefts or damages, whether inflicted by domestics or fellow servants or by strangers, because they are bound to guard those goods from contract and therefore from justice; but not as to other goods not specially committed to them, for they do not seem bound to guard these, whether against fellow servants or even against strangers, except from charity.

6. Owners who from grave negligence do not impede damages inflicted by animals of which they have ownership or custody; but if there is present only juridical fault, they are not bound except after the sentence of a judge.

7. In the same way, fathers of families who do not impede damages inflicted by sons who are not yet masters of themselves; but parents, teachers, superiors are not bound to restore damages of sons or subjects who have sufficient use of reason, because from the office of justice they are not bound to protect the goods of others. Unless their silence were equivalent to approval or protection and positively moved to inflicting damage: for then they would be bound as those consenting or counseling, or as patronizing or furnishing recourse. But if by civil law they are sometimes more obligated, or on account of juridical fault, as to these they are not bound in conscience except after the sentence of a judge.

8. Generally, he who culpably impedes a neighbor wishing legitimately to avert damage, if he has used an unjust way, or if the other ought from justice to avert the damage; but not a confessor who from grave negligence merely omits warning the penitent concerning restitution to be made or concerning injury not to be inflicted, because, by force of his office, the confessor is bound from justice to provide for the spiritual good of the penitent, but not to avert the temporal damage of others, although he can be bound to this from charity. Unless the silence in the circumstances is equivalent to positive counsel, just as also when the confessor gives a positive unjust response: for then he is a positive cooperator and is bound as a counselor from office.

It should be noted that he who has accepted money for not denouncing is bound to restitution, both if the money is stolen, in which case he is one receiving, and if he ought to denounce from office, in which case he is a negative cooperator; but not if he is not bound from justice to denounce, because just as he can be silent because of the prayers alone of the thief without injustice, so he can do the same because of gifts. Unless, however, in this way he would furnish greater security to the one damaging, as can more easily happen if the money was accepted before the damage is inflicted: for in this case he would be a positive cooperator after the manner of one patronizing or furnishing recourse.

317. Principle II. Cooperators simultaneously inflicting damage on someone can often be bound to integral restitution in solidum or solidarily, so that one, in default of another, must restore the whole. - This solidarity is the obligation incumbent upon individual cooperators, in default of the others, of repairing the whole damage which was inflicted by several together; yet by this law, that if reparation has been made by one, the others are no longer bound toward the injured party, with recourse nevertheless preserved for the one restoring against those who are obligated equally or before him. Now:

I. Individual cooperators are bound to restitution in solidum whenever they have had an influence upon the whole damage, so that the whole can be morally attributed to each one. For each one is bound to repair the whole damage of which he is the truly unjust, efficacious, and culpable cause.

But such are:

1. He who was the principal cause of the whole damage, as a mandator, or a thief who sought others as associates for taking away a stolen thing: "principally," says St. Thomas, a. 7, ad 2, "he is bound to restore who is principal in the deed."

2. Those each of whom was a necessary cause for inflicting the whole damage, as those giving a vote without which an unjust sentence is impossible, or two thieves taking away another's thing which one alone could not have taken away: physically indeed they cause partially, but morally the whole proceeds from each. So also those who ought from justice to avert the whole damage, and while they can, do not impede it; because morally they are accounted a necessary cause.

3. Those who, from a common conspiracy properly so called, were the cause of the whole damage, whether by mutual persuasion, by entering upon a plan, by common abstention, etc., as robbers who enter upon a plan of killing an enemy or plundering a house, and mutually incite themselves to this, or guards who agree about not impeding an injury: for they are the moral cause of the whole damage; but not those who without mutual influence simultaneously inflict damage, for example, set fire to the same house, or sink a ship, or snatch away the goods of the same person, because their influence is only partial.

4. Also those each of whom was a sufficient cause of the whole damage, as if two, discharging a firearm at the same instant, inflict a lethal wound on the same person, or, simultaneously giving evil counsel, move an agent to a damaging which the counsel of one would sufficiently have provoked.

II. On the contrary, cooperators are not bound in solidum to restitution, but only according to the proportion of influence, whose damaging action a) was neither necessary, b) nor sufficient, c) nor proceeding from conspiracy. For they are only the cause of part of the damage.

Thus he who, as a soldier in war, while others are doing damage, also caused some damages, is bound to repair only the part of the damage which he himself inflicted; or he who, while two are perpetrating theft in a house, comes up as a third and also steals; or he who sets fire to buildings which others have already efficaciously burned.

318. Principle III. Order among cooperators is to be observed, whether they caused the damage in the same grade or in a diverse grade. Hence there is a twofold rule:

I. If cooperators have concurred in the damage in the same grade and mode, each is equally and indiscriminately bound to restore, each one his own part, and if someone does not restore, those who are bound in solidum must restore this part proportionately.

Thus if of five all are equally mandators, or counselors, or participants, and the damage is 5000 fr., each one is bound to restore 1000 fr.; but if one does not restore, the others besides must each pay 250 fr., but they have recourse against him who did not pay his part.

II. If cooperators have concurred in the damage in a diverse grade, ordinarily they are bound in this order: 1. he who now detains another's thing; 2. the mandator; 3. the executor; 4. the other positive cooperators; 5. negative cooperators. - It is said: ordinarily, for exceptionally the order can be somewhat inverted. The principle is: he ought to restore first who in fact principally or more greatly influences.

Therefore 1) he who detains the thing, or the participant in the thing, is bound to restitution: he is bound by title of the thing received, which is the greatest obligation of all, because the thing cries out for its owner; but if the thing now does not exist, he is judged the detainer who before the others had profit from it, or who, after he detained it in his own name, unjustly consumed it; - 2) the mandator, who is the principal cause comparatively to the executors; to whom the counselor is equated a) if he induced the other into invincible error, for example, the one mandating him; b) if the damage following from the counsel was useful to him, the counselor, and not to the executor; - 3) the executor, who is principal in the deed, and after the mandator has the chief parts; but if among several executors one is principal, who acts in his own name and mandates the others, he is bound before the rest, not so if he acts in the name of all the others; - 4) the other positive cooperators, among whom of themselves there is no order, because there is no principal cause, so that they are bound equally; unless they are per accidens subordinated among themselves, for example, one persuading one person to persuade another; - 5) finally negative cooperators, who of themselves are accustomed to influence less than the others; among whom nevertheless perhaps he is bound first who is more strictly obligated to avert the damage.

Thence the corollary follows: if the superior damagers restore, the inferior are liberated; but on the contrary, if the inferior restore, the superior are not liberated; thus:

a) If the principal cause has restored or has obtained condonation from the legitimate owner, all secondary causes are now bound to nothing; on the contrary if a secondary cause has restored or obtained condonation of his part, the principal cause is not therefore liberated, nor are the other secondary causes for their part.³

³ Yet see C. C., art. 1284 and 1285.

b) If one of the secondary causes has restored, the principal cause is bound to recompense him; and if this one fails, the other secondary causes are bound to compensate him according to the proportional part.

c) If one of the negative causes has restored, the positive cooperators according to order are bound to restore the whole to him; and if they fail, the other negative causes are bound to pay him their part.

When the detainer restores, the others are bound to nothing; when the mandator restores, the detainer must restore to him; when the principal executor restores, first the detainer, and in his default the mandator, must compensate the executor; when a secondary positive cooperator restores, first the detainer, then the mandator, third the principal executor, is bound to restore the whole, and in their default, the other positive cooperators for a proportional part; when a negative cooperator restores, the positive cooperators are to restore in the same order; but if these fail, the other negative ones, their part.

319. Practical observations. - 1. Conjectural signs of efficacious cooperation are handed down in Theol. Mechl. n. 39, q. 5: a) if the one inflicting damage uses the means suggested by the cooperator; b) if he has done some things which the cooperator suggested and which otherwise he would not easily have done; c) if the cooperation was apt to move the executor and the damage followed, unless the contrary is drawn out from the circumstances.

2. One doubting a) whether he was the total cause of the damage is not bound to restitution in solidum, unless by his action he rendered the thing uncertain; - b) whether the principal cause has restored, if after inquiry has been made it is probable that restitution has been made, is not to be compelled to restitution; - c) whether cooperators of the same grade have restored, and this is probable, is not to be compelled except to restore his own part.

3. In practice cooperators are not always to be urged to restore the whole, even if they are bound in solidum. As St. Alphonsus says, Th. M., l. II, n. 579: "it must nevertheless be noted that the uneducated, although they are bound in solidum, rarely is it expedient to obligate to the whole; since these with difficulty persuade themselves that they are bound to restore the part taken away by associates. Indeed, it can sufficiently be presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them; since otherwise it is greatly to be feared that they will restore nothing if they are obligated to the whole." To these the confessor should say that they restore what they judge themselves to owe according to the dictate of their conscience.

4. Sometimes in positive law (as in art. 50 of the Belgian Penal Code) the obligation of restoring in solidum is established much more generally than is really present in the forum of conscience. Therefore this disposition of law, insofar as it extends beyond the obligation of natural law, obligates only after the just and correct sentence of a judge, and from legal justice only, because it has the nature of a penalty.