Article I. On Unjust Damaging In General

Damaging taken broadly includes also theft and robbery; for the thief and the robber cause damage to a neighbor, and St. Thomas says: "Whoever damages someone seems to take away from him that in which he damages him";¹ nevertheless, according to the stricter acceptance and the one commonly used today, damaging is distinguished from theft and can be defined:

¹ Cf. S. theol. 2, 2, q. 62, a. 4.

91. Definition. Unjust damaging is an action by which someone causes damage to another, without himself taking material profit from it. Therefore the damager causes damage to another and is not himself enriched; but the thief causes damage to another and is himself enriched. Hence, e.g., he who burns another's garment is a damager; but he who takes another's garment away for himself is a thief. Other things being equal, damaging is usually a graver sin than theft, because it often proceeds from hatred of neighbor, whereas theft is usually caused by disordered concupiscence of money, or by the neediness of the one stealing, and by other motives which are not as gravely sinful as hatred of neighbor.

92. Divisions. 1. By reason of the cause, damaging is divided into solitary and cooperative, according as the damager causes damage either by himself alone or with others helping.

Cooperative damaging is worse than solitary damaging, because in it not only justice but also charity toward the neighbor is injured by scandal or cooperation in evil. We shall treat cooperative damaging specially in the following article.

2. By reason of the object, damaging can be a) in supernatural goods, b) in natural goods, whether bodily or spiritual.

The worst damaging is in supernatural goods. Hence he who destroys sanctifying grace, faith, and other supernatural gifts in the soul of his neighbor sins most gravely. Enough has been said of this damaging above, I, n. 605 sqq., in the tract on scandal. But in natural goods damage can be inflicted upon a neighbor in two ways: either by the fact that the neighbor's thing is destroyed by an unjust action or omission (e.g., the neighbor's garment is burned either intentionally or from culpable negligence), or by the fact that the neighbor is unjustly kept from the obtaining of a due good (e.g., someone unjustly induces a father to exclude his son from the inheritance). The natural goods in which unjust damaging can occur are many, e.g., reputation, honor, body, life, fortune, etc.; concerning all of these, something will be said below.

3. By reason of the mode (or also of morality), damaging is either purely material or formal. Formal damaging is called that which is joined with formal sin against commutative justice, or, as they say, which proceeds from theological fault. Thus, e.g., he who knowingly and willingly burns another's house unjustly commits formal damaging. Material damaging is that which in fact causes damage, but involuntarily and therefore without moral fault of the damager. E.g., he who fired a gun wishing to kill a hare and, wholly by chance and without any caution having been neglected, wounds a hidden man, has committed material damaging, but has not sinned formally against justice. This material damaging is indeed sometimes joined with so-called juridical fault, which is nothing other than the omission of that diligence which positive law requires for preventing damage.

Juridical fault is customarily subdivided by authors into broad, light, and very light. Broad juridical fault consists in the omission even of that diligence which ordinarily and moderately prudent and diligent men are accustomed to employ in their operations. Light juridical fault is the omission of diligence which more prudent and more diligent men are accustomed to employ. Very light juridical fault is the omission of diligence which only the most diligent and most careful persons are accustomed to employ in their actions. This threefold subdivision of juridical fault is not found expressed in modern civil codes, which are not accustomed to distinguish except between grave and light negligence.² Juridical fault can be present (although very rarely) without any theological fault; then it is called merely juridical fault, and the damaging caused from it is purely material. Ordinarily, however, juridical fault is joined with theological fault more or less grave, because in reality it is a sin not to employ in our actions that diligence which positive law justly requires.

² Gross and slight negligence. The German Civil Code § 276 establishes: "He acts negligently who leaves out of account the care required in dealings," and § 827: "Whoever, in a state of unconsciousness, or in a state of morbid disturbance of mental activity excluding free determination of the will, causes damage to another, is not responsible for the damage." The Swiss Code has similar things, a. 41 sqq.; the French Code, a. 1382/3; the Italian Code, a. 1153; the Spanish Code, a. 1902 sqq., following in this matter the old Roman law. (Lex Aquilia.)

93. Principle 1. Unjust damaging is not only from its kind a grave sin, but also induces the obligation of restitution, if this threefold condition is present, namely, if it is truly, efficaciously, and formally unjust, or, as others say, if it is unjust, effective of damage, and theologically culpable.

It is explained and proved. That (formal) damaging is from its kind a mortal sin is plain of itself. For it injures virtues obliging gravely, namely charity and justice. But in order that from damaging there truly arise an obligation of restitution, three conditions are required:

94. 1. The damaging action must be truly unjust, i.e., it must injure commutative justice or the strict right of another, whether it is a right in a thing or a right to a thing. Indeed a damaging action can be gravely sinful without inducing an obligation of restitution. E.g., he who from hatred does not save the burning house of an enemy, although he easily can, sins gravely against charity, but is not bound to restore, because the enemy cannot in justice demand that his house be saved by another private man. Therefore it is altogether required that the strict right of the neighbor be injured. Hence the following cases are easily solved:

Resolutions. a) He who by importunate prayers, persuasions, etc., induces a master not to give a stipulated salary to a servant is bound to restitution; for he has injured the servant's strict right to the stipulated salary.

b) He who by prayers, persuasions, etc., induces a rich man not to give alms to a determinate poor man is not bound to restitution. For the poor man (unless he is in extreme necessity) does not have a strict right to alms.

c) He who by detraction, calumny, force, fraud, etc., procured that a rich man not give alms to a determinate poor man is bound to restitution. For although the poor man does not have a strict right to alms, nevertheless he has a strict right not to be impeded from receiving alms by unjust means, such as detraction and calumny. The same holds of him who by fraud, e.g., by sending in a false hope of health, turns a dying man away from making a testament in favor of a third party.

d) He who by detraction, calumny, or other illicit means impedes someone from the obtaining of some good, the accepting or conferring of which is objectively bad, indeed sins on account of the illicit means employed, but is not bound to restitution. In this case the presence of sin is plain of itself, because "a good end does not justify bad means." That there does not exist an obligation of restitution can be perceived from this, that the man impeded from the obtaining of an illicit good indeed had a strict right that detraction, calumny, or other sinful means not be used against him, but he had absolutely no right to the obtaining of the good itself.³ E.g., he who by fraud and a calumnious lie turns a young man away from giving money to a prostitute is not bound to restitution toward the prostitute. For the prostitute, although she has a right that a calumnious lie not be said about her, nevertheless has absolutely no right to receiving money from the lustful young man (at least before fornication has taken place).

³ Cf. Billuart, De iust. diss. 8, a. 12.

95. 2. The damaging action must be efficaciously unjust. Or in other words, the action must be the true cause per se of the damage inflicted or actually following. The reason is that only he who is the true cause or author of that damage, whether by himself or through others induced to this, can be obligated to repair the damage. Hence a strict obligation of restitution does not arise if the action was a) good or indifferent in itself, although the intention of the agent was very bad; b) only a cause per accidens of the damage; c) an occasion of the damage; d) a condition without which not of the damage.

Resolutions. a) A judge condemning an accused man from hatred almost diabolical, but according to just laws, sins gravely against charity on account of his hatred; but because his action is not unjust, he is not bound to restitution.

b) An innkeeper offering wine to a drunken man, foreseeing that in drunkenness the man is going to have great damage, is not bound to repair this damage, because his action was not the cause per se, but only the cause per accidens, of that damage. If, however, the innkeeper directly intends this damage and therefore offers wine so that the man constituted in drunkenness may suffer that damage, then he truly acts unjustly and his action is the cause per se (at least instrumental) of the damage, and therefore he ought to repair the damage caused.

c) A theft committed by Peter gave occasion for suspicion of the crime to fall upon Paul, who from this suffered grave damage. Peter is not bound to restitution, because his theft is not the cause but the occasion of that suspicion. If, however, Peter deliberately directed suspicion of the theft upon Paul, by using, e.g., his garments or tools in the execution of the theft, by hiding the matter of the theft in Paul's room, etc., then he acted unjustly and is bound to restitution. For Paul has a strict right that no one deliberately cause him a wicked suspicion.⁴ A wicked example inducing to damaging can also be held as an occasion and not as a true cause of damage.⁵

d) If someone returns a sword to a man prepared to kill another, he is indeed a condition without which not of this killing, but nevertheless he is not bound to restitution on account of the killing done, because he is not the cause per se of the damage inflicted.

⁴ Cf. St. Alphonsus, Theol. mor. l. 3, n. 635.

⁵ Cf. below n. 103.

96. 3. The damaging action must be formally unjust, or proceed from true theological fault.⁶ The reason is obvious; for without true theological fault or sin admitted, the damaging action is not voluntary. Now an involuntary action imports no morality and no obligation. Moreover, the obligation of restitution arises either from another's thing accepted or from an unjust action. But neither has another's thing been accepted, because the damager has not been made richer, as is supposed, nor was his action unjust, since through defect of will it had no morality. Finally, restitution for the damager is a certain penalty. But penalty supposes fault. Therefore where there is no moral fault, there also is no moral obligation of restitution. From what has been said it appears that there is no obligation of restitution in the following cases:

Resolutions. a) A physician who, from inculpable error, gave a harmful remedy to a sick person neither sinned nor is bound to restitution.

b) A confessor who, from inculpable error, freed a penitent from the obligation of restitution neither sinned nor is bound to reparation of the damage.

c) A man who wholly by chance, without any negligence, kills another neither sinned nor is obligated to reparation of the material damage perhaps inflicted.

⁶ Hence Jhering said very truly: "Not the damage obliges to compensation for damage, but fault." So also the Lex Aquilia. D. lib. 9, tit. 2.

97. On The Gravity Of The Obligation Of Restoring. From grave theological fault there arises a grave obligation of restitution, if, however, the damaging was truly and efficaciously unjust. This is plain from what has been said. But if the theological fault was light, one must first see from what cause it is light: whether from smallness of matter, or from another cause.

If the fault was light from smallness of matter, i.e., from small damage inflicted, there is a light obligation of restitution. Thus all authors teach, at least modern authors. The reason is that all violated commutative justice demands reparation, which indeed must be measured both on the part of the matter and on the part of the fault. Now in the present case there is light matter and light fault. Therefore there is also a light obligation of restitution.

But if with light fault⁷ grave damage has been caused, authors do not agree concerning the obligation of making restitution. There are four opinions:

1. He who from light fault caused grave damage is bound under mortal sin to reparation of the whole damage. Thus Henry of St. Ignatius⁸ and a few others.

2. He is bound to reparation of the whole damage under light sin. Thus Vasquez⁹ and in some way Billuart¹⁰ and Waffelaert.¹¹

3. He is bound to partial reparation of the damage, according to the condition of the fault and according to the prudent judgment of a man. Thus Bonacina¹² and Laymann.¹³

4. He is bound to nothing. Thus St. Alphonsus,¹⁴ Lugo,¹⁵ Lehmkuhl,¹⁶ Noldin,¹⁷ Gopfert,¹⁸ and several others.

The first opinion is obsolete. Theoretically speaking, the second opinion seems better to us, because the obligation of restitution must be measured chiefly from the fault of the agent, while nevertheless connoting the damage really caused. Hence where there is no moral fault, there is no moral obligation of restitution; where there is grave fault, there also arises a grave obligation (provided that the damage caused is grave). Therefore it seems reasonable that, where grave damage has been caused with light fault, there should be a light obligation of repairing this damage. But the argument which is usually brought forward for the fourth opinion is by no means convincing. They say: Neither a grave nor a light obligation of restitution arises from light fault. Therefore no obligation exists. Not grave, because a grave obligation has no proportion with light fault; not light, because a light obligation has no proportion with a grave thing. But the response is: passing over the first part of the argumentation, concerning which no difficulty exists here, the other part is little probative. Cannot a light obligation be about grave matter? Can someone not oblige himself by vow under light sin to a grave thing, e.g., to a distant pilgrimage? Can a legislator not command a grave thing under light obligation? Then this fourth opinion equally conflicts with the common sense of men and with civil legislation. Here is a case: Today Peter with light fault burns Paul's cheap garment. He is bound under light sin to restitution of this light matter, which indeed even the authors of the fourth opinion teach rather commonly. Tomorrow Peter, with equal light fault, burns Paul's whole house. Now he is bound to nothing according to the fourth opinion, because a light obligation cannot turn upon so great a matter! Another case: Peter, a very rich man, with light theological fault sets fire to the house of Paul, who is thus reduced to extreme poverty. According to the fourth opinion Peter can tranquilly enjoy his riches and ought to pay nothing; but Paul can beg and grieve over his burned house, yet he has no right against Peter! How great cruelty toward an innocent man, and how great laxity toward a culpable man! Do these things correspond to the sound estimation of men? The German Civil Code¹⁹ also establishes that, according to equity, damage inflicted without any fault must be compensated, provided, however, that the one compensating is not thereby deprived of goods necessary for his state.

From all things said thus far it appears sufficiently that the fourth opinion is not theoretically true. Hence even its followers limit it to the case in which the lightness of fault has arisen from imperfection of the act.²⁰

Resolutions. In practice, in individual cases, the circumstances both of the agent and of the damage inflicted must be carefully attended to, as is plain from the following examples:

a) He who from invincible error thinks that he is unjustly destroying the cheap glass of an enemy, but in reality destroys most precious crystal, is bound under light sin to repair the whole damage (if, however, he can). But he who from invincible error thinks that he is unjustly destroying a thing of grave value, e.g., 100 francs, which nevertheless in reality costs 1000 francs, more probably is bound to restore the value of 1000 francs. The reason is that in the first case there is light sin and therefore a light obligation of repairing the whole damage; but in the second case there is grave sin and therefore a grave obligation of repairing the whole damage actually caused. St. Alphonsus,²¹ however, thinks that the opposite opinion is sufficiently probable.

b) He who from a certain light negligence causes another grave damage wholly unforeseen can be treated more mildly. For in daily life it is morally impossible that slight negligences of this kind be avoided. But if someone could and should have foreseen the grave damage of the neighbor and nevertheless is negligent, he sins gravely and therefore is obligated to restitution of the damage. E.g., a physician who foresees great damage to a sick person and nevertheless is truly negligent, sins gravely and is bound to restitution. But if this negligence is very small, the physician is bound to nothing, because it is too difficult for a physician daily to employ perfect diligence in all cases.

c) He who from a second-first movement of anger gravely wounds or kills another indeed cannot ordinarily be obligated in practice to repairing the whole damage (because then even civil tribunals admit attenuating circumstances), but nevertheless it does not seem to be equitable that absolutely no compensation be demanded. In this case the third opinion proposed above by Bonacina can well be applied.

d) He who committed several damagings which individually indeed are light, but joined together are grave, ought to restore under light sin if he inflicted the individual light damages upon different persons. The reason is that those individual damagings do not coalesce and in themselves are venial sins. But if he caused many light damages to the same person, he seems to be bound to restitution in the same way as if he had committed just as many small thefts against this person, whose right is injured in the same way by theft as by damaging. When small thefts coalesce into grave matter has been said above, n. 82 sqq.

Billuart excellently notes concerning this whole controversy: "For the rest, whatever there may be concerning the speculation of this question, the authors of whatever opinion commonly observe that it rarely happens in practice that grave damage is caused from venial fault; because, although venial inconsideration is frequent in subreptitious thoughts and internal movements of the soul, which often, easily, and subtly arise, and indeed about objects conforming to natural inclination, nevertheless it rarely happens in external works of grave moment, because ordinarily they at once thrust their danger upon the mind and more strongly excite it to some consideration, or at least to confused cognition 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."²² Concina has similar things, who judges this controversy very moderately and not rigidly.²³

⁷ This light fault can occur in two ways: 1. from error or erroneous conscience, e.g., someone wants to destroy another's thing which he thinks is light, but which in reality is of great value; 2. from imperfection of the act, e.g., someone from slight but culpable inconsideration causes grave damage.

⁸ Ethica amoris l. 9, c. 116.

⁹ De restit. c. 2, § 2, dub. 2, n. 2.

¹⁰ De iure et iust. diss. 8, a. 5.

¹¹ Tract. de iust. II, n. 266.

¹² De restit. disp. I, q. 1, n. 56.

¹³ Theol. mor. lib. 3, tract. 3, p. 1, c. 6, n. 4.

¹⁴ Theol. mor. l. 3, n. 552.

¹⁵ De iust. et iure, disp. 8, n. 57 sqq.

¹⁶ Theol. mor. I, n. 1153.

¹⁷ De praeceptis n. 435.

¹⁸ Moraltheol. II, 161.

¹⁹ § 829.

²⁰ Cf. Noldin (De praeceptis n. 435) saying: "He who inflicted grave damage with fault (from imperfection of the act) that is light, according to the opinion practically to be followed is bound to nothing." But previously in n. 434 he said that the opinion which exempts from restitution him who inflicted grave damage with light fault, which was a perfectly human act, is indeed extrinsically probable, but is plainly destitute of internal probability.

²¹ Theol. mor. l. 3, n. 615.

²² De iure et iust. diss. 8, a. 5.

²³ De iust. et iure lib. 2; diss. 2, c. 5, n. 7.

98. Principle 2. From material damaging there does not arise an obligation of restitution except in two cases, namely 1) after the sentence of a judge; 2) if it has been freely stipulated so.

It is explained and proved. 1. Material damaging is caused from no moral fault, and therefore it cannot impose in conscience an obligation of restitution, since this is a penalty for fault committed. Nevertheless, laws are just which decree that, even after material damaging with juridical fault, there is an obligation of repairing the damage. For those laws favor all citizens equally; they render individual men more watchful, lest they inflict any damage upon others, and they forestall many cavillations and frauds. But these laws do not oblige in conscience except after the sentence of a judge, because restitution after damaging is a penalty; but generally all positive laws requiring some hard penalty, which consists in an action to be placed, do not oblige except after the condemnatory sentence of a judge.²⁴

2. If a special explicit contract has preceded, obliging the other contracting party to restitution in any case whatever of damaging, such a contract is licit, and therefore even without theological fault the damage caused must be repaired. Such contracts are often quasi-insurances. E.g., the possessor of a railway ought to restore the price of goods which were destroyed during transport, in whatever way finally this destruction occurred. But if the contract entered into is not so explicit, but rather implicit, e.g., in loan for use, in deposit, in the undertaking of some office, one must distinguish:

a) If the contract is for the sole utility of the recipient, as in loan for use, then the damager is bound to restitution even from light juridical fault, to which nevertheless in practice at least light theological fault is always joined. That from loan for use an obligation arises for the damager even when lightly culpable, Gregory IX already determined: "When someone has accepted a loan for use only for his own sake, he is held even for very slight fault, although a fortuitous case ... ought not be imputed to him."²⁵ For natural equity seems to demand that a thing lent to another be guarded with the greatest diligence. Hence, e.g., if someone loses a book lent for use even with light fault, he is bound to restore its price.

b) If the contract yields to the sole utility of the giver, the recipient is not held concerning damage except from broad juridical fault.²⁶ The reason is that in those contracts the recipient has nothing except a burden, and therefore it would be inequitable if, besides the burden of custody, he were still held to restitution from very slight fault. This case often occurs in a contract of deposit. Civil laws are accustomed to establish to what extent he who receives some deposit is held to repair all damages, e.g., a railway or innkeeper receiving the luggage of travelers. Those statutes seem to oblige in conscience even before the sentence of a judge.

c) If the contract yields to the utility of both contracting parties, or if only an implicit contract has intervened by reason of an office undertaken, the contracting party is held to repair damage arisen from broad juridical fault. The reason is that whenever a contract, whether explicit or implicit, has been entered into, the contracting party takes upon himself the burden of faithfully observing all clauses of the contract. Hence, e.g., he who, for a determinate price, has borrowed a horse from another, is bound to repair the damage which the horse has suffered from the broad fault of the borrower. A physician or confessor is bound to repair damages which have arisen from their broad fault. In practice this broad fault always includes theological fault more or less grave. Hence, e.g., a confessor who falsely freed a penitent from the obligation of restitution is bound according to his powers to repair the damage inflicted, because by force of the office undertaken he ought to judge rightly concerning the obligations of the penitent. A longer discussion concerning this matter will return below in the tract on penance.

²⁴ Cf. above, concerning laws, I, n. 212.

²⁵ Cap. unicam, X 3, 15.

²⁶ Cf. S. theol. 2, 2, q. 62, a. 6.

99. Corollaries. From the two principles posited and explained, the following are still drawn out:

1. He who culpably placed a cause from which he foresaw that a determinate damage was going to follow is bound to repair this damage actually following, although he afterward tried to impede the cause. The reason is that by placing such a cause he damaged truly, formally, and efficaciously. But he who without fault placed a cause from which damage to the neighbor is going to follow is bound to prevent the effects of the cause insofar as possible. But if he does not do this, he implicitly approves the cause placed, becomes theologically culpable, and is held to reparation of the damage going to follow. Hence, e.g., a physician who inadvertently administered the wrong medicine ought, according to his powers, to prevent the effects; otherwise he is bound to reparation of the damage.²⁷

2. He who, wishing to damage Peter, by error damages Paul, nevertheless is bound to restitution. The reason is that his action is truly, efficaciously, and formally unjust. Hence the opposite opinion of certain authors²⁸ must be rejected. The case which St. Alphonsus proposes is celebrated.²⁹ Someone wishes to set fire to the house of Titius, his enemy; he goes to the house which he thinks is Titius's, which nevertheless in reality is Caius's, and he sets fire to it. According to the opinion of some authors, the incendiary is held to no reparation, at least if he did not intend, even confusedly, to burn also the house of Caius. For, they say, formal injury is not present in that case, because the incendiary in no way wished to inflict damage upon Caius, who perhaps is his friend. With merit very many modern authors shrink from this opinion, since it conflicts too much with men's moral sense and has caused no small ill-will toward casuistic theology. For that incendiary intends and formally causes injury to the neighbor; but it is wholly per accidens that he errs concerning the person damaged.

Similarly, a like opinion proposed by Gury³⁰ is to be rejected; he thinks that there is no obligation of restitution if someone, moved by a spirit of vengeance, fired a bullet at a she-goat of his enemy, but instead of the unharmed she-goat struck and killed a cow of the same enemy. For although that damager did not wish by his act to kill this cow, nevertheless he wished to inflict grave damage upon his enemy. Therefore there is grave theological fault and grave damage caused; and therefore there is also a grave obligation of restitution.

3. He who has injured only distributive justice is not bound to restitution. But very often together with distributive justice commutative justice also is injured, and then certainly reparation of the damage must be made. An unjust distributor of public offices and duties is bound to restitution toward the community if he has chosen ministers altogether inept, but not if indeed he passed over the more worthy yet appointed worthy and suitable persons. Sometimes also he ought to repair the damage caused to the more worthy persons passed over, namely if a) candidates for some office are called together by way of onerous contract; b) if the supreme superior of the society has obliged the lower distributors, and indeed from commutative justice, to choose the best candidates. In practice there will rarely be an evident and certain obligation of reparation, if it is a question of lay offices and duties. But it is otherwise if it is a question of the conferring of ecclesiastical benefices. Concerning these the following things are commonly taught by authors:

a) It is always a grave sin knowingly to confer some ecclesiastical benefice upon an unworthy candidate.

b) If, after a more worthy candidate has been passed over, a benefice is conferred upon one less worthy, there is still sin; indeed, if it is a question of a benefice with care of souls, it is grave sin.³¹

c) When from the election of an unworthy or less worthy candidate grave damage comes to the benefice or community, the unjust collator is bound to repair this damage; on the other hand, he is bound to nothing from justice toward worthy or more worthy candidates passed over, because they do not yet have a strict right to the benefice proposed. The single exception is if, for obtaining a determinate vacant benefice, the so-called "concursus" has been made, as is customarily done in several regions for parishes and certain canonries. For then, according to the more probable and much more common opinion, commutative justice is injured also toward the more worthy candidate unjustly passed over. The reason is that the calling to a special concursus is a quasi-contract, according to which the collator promises and ought to confer the benefice upon the more worthy. Hence in the Council of Trent³² it was decreed that one unjustly passed over has the right of appealing, by which he can vindicate for himself the benefice unjustly denied to him. And in reality such a candidate unjustly passed over often suffers no small material damage, because he does not receive the revenues of the benefice iniquitously denied to him. There are nevertheless several authors (Dominic Soto,³³ Navarrus,³⁴ Martin Ledesma³⁵) who deny the obligation of restitution. Concerning these two opinions St. Alphonsus³⁶ writes: "I do not dare to depart from the first opinion, common and much more probable. But neither do I dare to say that this second is improbable; because in reality it does not seem to be established that between the bishop and the competitors that pact intervenes which binds rigorously from commutative justice." Since in many regions there is no longer a properly so-called and special concursus for obtaining benefices, this question is not so practical. But if it is a question of a general concursus for an indeterminate and not-yet-vacant benefice or office, the superior does not injure the strict right of the candidates if, for some benefice or office subsequently becoming vacant, after passing over the more worthy, he chooses one less indeed but truly worthy. The reason is that the more worthy candidate does not have a strict right to some determinate benefice.

²⁷ Cf. St. Alphonsus, Theol. mor. l. 3, n. 564.

²⁸ Lugo, De iust. et iure disp. 17, n. 78 or rather disp. 18, n. 86; Lacroix, De consc. l. 3, n. 200; St. Alphonsus, l. c. n. 629; Sporer, De iust. tr. 4, c. 2, n. 139; D'Annibale, Summula II, n. 232.

²⁹ L. c.

³⁰ Comp. theol. mor. I, 672.

³¹ Cf. Council of Trent, sess. 24, c. 1 de reform.; prop. 47 condemned by Innocent XI (Denz. n. 1197); Code of Canon Law c. 459, § 1.

³² Sess. 24, c. 1 de reform.

³³ De iust. et iure l. 4, q. 6, a. 3 ad 6, posterior conclusion.

³⁴ Man. c. 17, n. 24.

³⁵ In IV sent. 2, 4, q. 18, a. 2, dub. 9, concl. 2.

³⁶ Theol. mor. l. 4, n. 109; cf. Elenchum quaest. reform. q. 47.