495. Prenotanda. Negative cooperators are said to be those who do not impede the damage of the neighbor which they are bound from justice to impede. Three are numbered: the silent, the one not opposing, the one not manifesting.

a. The silent one is said to be he who before the damaging does not impede the damage, for example, does not deter thieves by a shout, does not warn concerning the damage to be inflicted.

b. The one not opposing is said to be he who, while the damage is being inflicted, does not impede it, for example, does not defend the thing or turn away the damaging action, as a guard who does not drive away a thief.

c. The one not manifesting is said to be he who after the damaging does not reveal the damage inflicted either to superiors or to the damaged person, so that the damage may be repaired.

496. Their obligation. Those who are bound from justice to impede damage and do not impede it, when they can do so without grave inconvenience, must repair the damage inflicted.

a. If there is question of restitution because of damage not impeded, first of all one must investigate whether he who did not impede the damage was bound to impede it from justice or from another virtue.

All are bound from charity to impede the damages of others by both moral and physical influence if they easily can, and this in two ways: both so that the damager may be turned away from sin, and so that evil may be forestalled from the one to be damaged.

Those on whom the office of superior rests are bound by a special obligation, which arises from superiority, to avert damages from their subjects. Thus a father, who must procure the good of his children from piety, is bound from piety both to turn his son away from inflicting damage on others and to impede others from harming his son; a prince, who must procure the common good from legal justice, of itself is bound from legal justice to forestall that someone inflict damage on the community over which he presides. Yet the condition itself of superior does not of itself oblige from commutative justice to preventing damages, whether those inflicted on subjects or those inflicted by subjects, unless superiors are obligated to this by a special office.

b. Only he who is bound from commutative justice to impede damage and does not impede it must repair it. But those are bound from commutative justice who are bound by force of an explicit contract or by force of office or implicit contract.

alpha. Damage inflicted by a son who does not yet have the use of reason, with theological fault supposed, the father is bound to repair before the sentence of a judge, because he must watch over sons not yet having the use of reason from justice. But damage inflicted by a son who already has the use of reason the father is not bound to repair, because he must watch over sons having the use of reason only from piety; the son will repair it as soon as he can. Yet after the sentence of a judge such damage too must be repaired, provided it was truly inflicted, because a law cannot be called unjust which incites parents and superiors to greater care and vigilance. The same must be said if a father catches his son inflicting damage and is silent in those circumstances in which silence is equivalent to approval. But in this case by his consent he cooperates positively.

There are some who oblige parents to repair damage inflicted by sons not yet having the use of reason, even if it was done without theological fault of the parents. Yet rightly they are held immune from the obligation of restitution if the damage was inflicted although the parents watched over their children with ordinary diligence.¹

beta. He who, asked by a thief, is silent, is not bound to restore; indeed neither is he bound to restitution who, in order to be silent, received money from the thief, unless he must shout from office. But if he receives money to watch whether someone is coming, he is held for the damage, because he cooperates positively in the theft.

gamma. Guards of vineyards and forests who do not impede acts of damaging or do not denounce the damagers are bound to repair the damages inflicted by them, unless the owner can be considered less unwilling, as if there is question of things of less moment, or if something is permitted to the poor. But they are not bound to compensate the fine, because they were hired only to avert damages from the owners.

The same must be said of overseers of customs duties who permit duties to be defrauded or do not denounce those defrauding, unless there is question of things of less moment, or of things for which from usage the tax is not usually exacted so precisely. Yet they are not bound to restore penal fines nor the price which they received from the defrauders so that they would permit the defrauding.

delta. The owner is bound to repair damage inflicted by his animals, and indeed before the sentence of a judge if with grave theological fault he neglected custody of them; but if theological fault did not intervene, after the sentence of a judge, provided the damage was truly inflicted. Here it must be noted that the owner culpably neglects the custody of animals even when he knowingly places over them an unfit or negligent guard.²

c. But he is not bound to impede damages with grave inconvenience, because of itself no one, by entering a contract or undertaking an office, is considered to obligate himself to this.

Whether he who does not cast a vote is bound to restitution when there is question of damage to be inflicted on another.

He is not bound to restitution if by his vote he cannot impede the damage, because no one is held for damage inflicted by another which he himself cannot impede. If by his vote he could have impeded the damage, one must distinguish: if the damage which arises from omission of the vote he is bound to impede from commutative justice, he must repair it; but if he is bound to impede the damage only from another title, whether from charity or from legal or distributive justice, by omission of the vote he will sin against that virtue which obliges him to vote, but he is not bound to restitution.

He is bound to give his vote from commutative justice who from office must protect the rights of the damaged person and therefore from office must impede his damages. In order that in a particular case the obligation of restitution be present, it is required in addition that he who must vote from office was bound to be present at the voting, or culpably was absent from it, and that he foresaw that damage would arise from the omitted voting.

¹ C.A. Section 1309 agrees.

² G.A. Sections 1299, 1315, 1320.

497. Obligation of the confessor. From these things the obligations of the confessor are now gathered without difficulty, when he either obliges a penitent to make restitution to which he is not bound, or frees him from making restitution to which he is bound. For a. the confessor with respect to the penitent must be considered as one counseling, who furnishes doctrinal counsel; b. moreover the confessor must give sound counsels not only from charity, but also from office and therefore from justice in those things which concern the spiritual good of the penitent; c. but in those things which pertain to the temporal good of the penitent, insofar as he is confessor, he has no obligation of justice. Therefore:

alpha. The confessor who with grave fault positively frees from making restitution a penitent who must restore is himself bound to restitution toward the third person, because by his counsel he is the efficacious moral cause of the damage which the third person suffers.

beta. The confessor who with grave fault induces a penitent who need not restore to restore is bound to restitution toward the penitent, because he is the efficacious moral cause of the damage which the penitent suffers.

gamma. The confessor who culpably does not warn concerning error a penitent falsely thinking himself bound to restitution is not bound to repair the damage which the penitent restoring suffers: for the confessor is indeed bound from justice to impede spiritual damages, but not temporal damages of his penitent. Yet if the silence of the confessor would deservedly be taken by the penitent for an affirmation of the obligation of restoring, the confessor would certainly be bound to repair the damage.

b. He who culpably does not warn the penitent concerning making restitution and thus is the cause why damage is not repaired to the injured owner is not bound to restitution, because he is not obligated from office to forestall the temporal damages of others.¹

Article Seventh. On Restitution to Be Made by Cooperators

Concerning restitution to be made when several concur in inflicting the same damage, it is asked: a. what or how much; b. in what order the individuals must restore.

¹ Cf. De sacramentis^3, n. 420.