Section — Noldin, Summa of Moral Theology
Section 3. Theologically Culpable
458. Notions. Juridical fault must be distinguished from theological fault. Theological fault is said to be that which constitutes a true sin, whether mortal or venial; juridical fault consists in the omission of diligence and caution required by positive law for forestalling damage, whether that omission is joined with sin or is not. But if damage is inflicted entirely without sin, or without advertence, there is merely juridical fault.
a. A threefold juridical fault is distinguished according to the degree of diligence omitted: broad fault, which is the omission of the diligence which men commonly are accustomed to apply in their own affairs; light fault, which is the omission of the diligence which more diligent and prudent men are accustomed to apply; very light fault, which is the omission of the diligence which only the most diligent and accurate persons are accustomed to apply in their actions. A precious thing received on loan is taken from Caius; now Caius is guilty of broad fault if by night he leaves the house open; of light fault if, on going out, he closes the door of the house but does not lock it; of very light fault if, on going out, he closes and locks the door of the house, but does not examine whether it has been well locked. Recent laws indeed do not expressly have this distinction; yet because in some circumstances they require less diligence, in others greater diligence, they contain it equivalently.
b. Broad fault is ordinarily accompanied by theological fault, both because ordinary diligence must be applied in fulfilling one's office, and because advertence to the damage going to follow can scarcely be absent; but theological fault does not accompany light or very light fault unless the affair is of the gravest moment. For in proportion to the greater gravity and moment of the action or office, greater diligence and solicitude must be applied; hence in affairs of greatest moment the most accurate diligence must be applied. Wherefore it can happen that omission of this diligence, or fault juridically very light, is theologically grave fault or even most grave fault.
c. A damaging action from a threefold source can be theologically lightly culpable: alpha. from smallness of matter; beta. from imperfection of the act; gamma. from a light defect of due diligence, namely where some, but not all, diligence which is due is applied.
d. There are several cautions which by force of positive law are required from architects in raising buildings, from masters in constructing factories and workshops, from mechanics in caring for machines, etc., to forestall misfortunes. Those in whose favor laws of this kind are made have a right to demand that they be observed accurately; but those for whom they are made are not bound in conscience to observe those which exceed the moral diligence necessary for impeding misfortunes, if those whose interest is involved at least tacitly consent to the omission.
459. Principles. 1. In order that a damaging action induce the obligation of restitution, it is required that it be theologically culpable: for no one is obligated in conscience to repair damage unless it was inflicted in conscience. Moreover no one is held for his actions and their effects unless they are voluntary; but an action which is not theologically culpable is generally not voluntary.
a. He who in good faith accepted another's thing and consumed it is bound to restore nothing, unless from it he has become richer. Boys who knowingly and voluntarily indeed steal, but without advertence to the theological malice of their action, which they apprehend only as subject to penalty, are not obligated to restitution. He who from mere inadvertence did not extinguish a candle, whence a fire arose, is not bound to repair the damage. A physician who from inculpable error gives a harmful remedy to a sick man contracts no obligation of restoring: for in all these cases theological fault does not intervene.
b. He who retracts an evil will before the damage is produced by the physical cause is bound to repair it: for repentance of the will cannot bring it about that the obligation of restitution, which has already been contracted when the efficacious cause of damage had been placed with theological fault, ceases. But if the cause of damage is moral, retraction of the will sometimes brings it about that the obligation of repairing the damage ceases, as will be said below (concerning restitution because of unjust cooperation).
- The obligation of restitution from merely juridical fault is present only after the sentence of a judge, unless someone has obligated himself otherwise by a special contract.
a. Laws which impose the obligation of restitution from merely juridical fault are just laws established by legitimate authority: for they are founded for the common good, namely so that citizens may be rendered more cautious and diligent, and by this reason damages may be forestalled; but just laws oblige in conscience. But those laws are penal, because they punish the omission of prescribed diligence; but penal laws do not oblige before the sentence of a judge, because no one is obligated to impose a penalty on himself.
b. Damage inflicted without theological fault on another's thing held by contract (loan, deposit, etc.) need not be repaired in conscience before the sentence of a judge, because in entering the contract the contracting party did not obligate himself to this.
Nothing indeed prevents someone from obligating himself by a special contract to repair, before the sentence of a judge, damage which arose from merely juridical fault or from a fortuitous event; but without a special contract no one is bound to this, because it is not established that in entering the contract he wished to obligate himself to this.
c. Damage inflicted in fulfilling an office (of judge, advocate, physician, confessor, etc.) without theological fault need not be repaired in conscience before the sentence of a judge: for from the common judgment even of the timorous, he who undertakes an office is not considered to obligate himself except to ordinary diligence; otherwise offices, with detriment to the public good, would be rendered too burdensome.
There are some who contend that in contracts which redound only to the profit of one of the contracting parties, and in quasi-contracts which are entered by undertaking an office, this implicit pact is always contained, namely of repairing damage even when it has arisen from merely juridical fault; and therefore in these cases restitution must be made in conscience before the sentence of a judge. But it can be denied that a pact of this kind is contained in those contracts or quasi-contracts, because neither the law of nature nor human law requires a pact of this kind. But because those offices by their nature demand great diligence, it can easily happen that negligence materially light is gravely culpable.