§ 1. On Extreme Necessity As An Excusing Cause

86. Principle. In extreme necessity it is lawful to take from the goods of another only so much as is enough to free oneself from such necessity. Thus all authors.³⁶

The reason is that in extreme necessity all earthly goods again become common. For God gave the earth to be inhabited and goods to be enjoyed by all men. Therefore each man has the right that he be able to live from earthly goods and, in an extreme case, to take for himself those things which are altogether necessary. This principle, however, needs some explanation:

a) Neither in common necessity, nor in grave necessity, but in extreme necessity alone is it lawful to take away the goods of another.

The reason is that otherwise not only all private ownership but also public security would be greatly endangered, since a wide gate would be opened to innumerable thefts. Hence common poor beggars cannot licitly take another's thing for themselves, when the owner is unwilling. Innocent XI proscribed the proposition: "It is permitted to steal not only in extreme necessity, but also in grave."³⁷ Certainly the word "to steal" in the condemned proposition is not to be taken in the formal sense (because never, not even in extreme necessity, is it lawful to steal or to take away another's thing unjustly), but in the material sense, i.e., for "physically to take another's thing." Speaking in this material sense, even the Angelic Doctor asks: "Whether it is lawful for someone, on account of necessity, to steal?" And he responds: "If, however, the necessity is so evident and urgent that it is manifest that the present necessity must be relieved from things at hand, for instance when danger threatens a person and otherwise he cannot be helped, then someone can licitly relieve his necessity from the things of others, whether they are taken openly or secretly; nor does this properly have the nature of theft or robbery."³⁸

Authors do not agree what necessity is extreme or quasi-extreme; now, however, there is rather common enumeration under it not only of proximate danger of life, but also danger of losing a principal member or a sense of the body (or chastity). Thus Bannez, cited by Lugo, and St. Alphonsus.³⁹

Theologians rightly teach with St. Thomas⁴⁰ that, in extreme necessity not only one's own but also one's neighbor's, it is lawful to take away what is necessary. Thus, e.g., a mother who does not have nourishment for a child about to perish from hunger can take away another's milk.

b) It is not lawful to take more than is enough to free oneself (or another) from such necessity.

If therefore, e.g., it suffices to borrow another's thing, it is not lawful to take it into ownership. Similarly, when the necessity has passed, the thing taken away must be restored, if it still exists. But what is to be done if, after the extreme necessity has passed and after the thing has been consumed in such necessity, the man unexpectedly becomes capable of restoring the thing taken away? Certainly it is fitting that he compensate the thing taken away, but he is not strictly obliged to this. For a man living in extreme necessity truly makes his own the other person's thing taken away, and therefore is never bound to restore it. Thus also Billuart,⁴¹ Noldin,⁴² and others. For the rest, this case seems to be rather theoretical than practical. For if a man has overcome extreme necessity, almost always he had some hope of afterward compensating the thing taken away. But with such hope existing, the man is truly bound to make compensation from the goods afterward acquired.

c) Even in extreme necessity it is not lawful to take from another a thing, if from the taking away that other person also is going to fall into extreme necessity.

The reason is that, in an equal cause, "the condition of the possessor is better." Hence, e.g., if two fall into the sea, one of whom, and perhaps the weaker, has an air-belt, the other cannot take away this belt to save himself, because with the belt removed the first possessor is thrust into proximate danger of death.

³⁶ Civil codes also are accustomed expressly to concede this license, e.g., German Code 229 and 904; Swiss Code of Obligations, art. 52.

³⁷ Denz. n. 1186. On the sense of this condemned proposition, cf. Dominic Viva and Ballerini-Palmieri, De furto n. 22 sq.

³⁸ S. theol. 2, 2, q. 66, a. 7; cf. also Cajetan's Commentary on this place.

³⁹ Theol. mor. l. 3, n. 520.

⁴⁰ L. c. ad 3.

⁴¹ De iure et iust. diss. 11, a. 6.

⁴² De praeceptis n. 425.

87. Scholion. On Great Goods Of Another To Be Taken Away In Extreme Necessity. We have already said above (I, n. 592) that in extreme necessity a poor person must be aided even with great inconvenience, provided, however, that it is not a question of great and extraordinary expenses to be made. But if someone does not satisfy this obligation, he does not sin against (commutative) justice, but only against charity.⁴³ By parity, it can be asked whether one placed in extreme necessity can take away by stealth from a rich man a great sum of money in order to free himself from such necessity. Theologians do not agree. Lacroix and Concina deny; Sporer and Lugo, cited by St. Alphonsus,⁴⁴ affirm; and St. Alphonsus asserts: "In the case in which a poor man is in extreme necessity of some thing of great value, he can justly accept it, because he has a right to seize it. Not therefore, however, is the rich man bound to give, since he is bound only from charity, which does not bind with so great an inconvenience." Perhaps the response is more rightly given with a distinction:

1. A poor man living in extreme necessity is not bound to take away by stealth a great sum of money even for preserving life. The reason is that no one is bound to employ extraordinary means for saving life.⁴⁵

2. A poor man living in proximate extreme necessity can take away by stealth even a great sum of money for preserving life. Thus, e.g., the guard of some banking institution (commonly, bank), to whom a robber threatens death unless the key of the safe containing a great sum of another's money is handed over, is placed in proximate extreme necessity, and therefore he can hand over the key, and even another's money, to save his life. The reason is that a) he can value his own life more highly than money committed to him; b) the civil laws also are accustomed to permit this.

3. A poor man living in more remote extreme necessity probably cannot take a great sum of another's money. Thus, e.g., a very poor father of a family suffering from pulmonary consumption, to whom a physician has said with moral certainty that he is certainly and shortly going to die unless he immediately sets out for a healthier region, nevertheless does not seem licitly to take away by stealth a sum, e.g., of 1000 francs, from some rich man so that he may be able to set out and thus save his life. The reason is that a) otherwise an occasion would be provided for many illusions and disorders, and social peace would be disturbed not a little; b) the civil laws also gravely prohibit this.

⁴³ Thus at least according to the more probable opinion (cf. St. Alphonsus, l. c. n. 520, quaer. 6; see above I, n. 589). Leo XIII indeed says (Rerum novarum, May 15, 1891), speaking of the obligation of giving alms: "Those offices are not of justice, except in extreme things, but of Christian charity." But the Supreme Pontiff seems to take the word justice not for commutative justice, from the violation of which the obligation of restitution arises, but for general or legal justice. Cf. S. theol. 2, 2, q. 118, a. 4 ad 2. But the owner seems to sin against commutative justice who prevents a poor man laboring in proximate extreme necessity from occupying, or from having occupied, the thing necessary. Cf. St. Alphonsus, l. c.

⁴⁴ L. c. quaer. 3.

⁴⁵ Cf. above, concerning the precept of charity toward oneself (I, n. 567).