§ 2. On The Other Root Of Restitution, Or On Unjust Damaging

223. The other root of restitution to be made is unjust damaging perpetrated either by one or by several. Concerning this twofold damaging and concerning damaging in diverse matters, sufficient has been said above. In all matters and cases that one principle must be applied: There is no obligation of restitution on account of damaging caused:

a) unless the damaging action was truly, efficaciously, and formally unjust; or in other words: unless it injured commutative justice by an external act and by an internal act morally culpable; or:

b) unless after the just sentence of a judge or after a valid contract entered into concerning restitution to be made.

A few things remain to be said concerning restitution to be made by unjust cooperators.

The measure and order of restitution among several damagers. When unjust damaging has been perpetrated by several, a difficulty can arise as to the measure and order in which the individual damagers are held to restore. The following things should be noted:

There is a threefold measure of this kind among several damagers: for some are obliged in solidum absolutely, others in solidum conditionally (or proportionately and in solidum), and others simply proportionately. Solidarity, or the obligation of restoring in solidum, is generally the burden incumbent upon each of the cooperators of repairing the solidum, i.e., the whole damage inflicted. This solidarity is: a) absolute, if someone is held alone to repair the whole damage, without having the right to seek compensation from the other cooperators; e.g., the solidarity of one giving a mandate; b) conditional, if someone is held alone to repair the whole damage inflicted, but only upon the failure of the other cooperators. But if he actually restores the entire damage, he has the right to exact compensation from the other cooperators. Such is sometimes the solidarity of a participant. c) The obligation of restoring simply proportionately is the burden incumbent upon each of repairing only that part of the damage which corresponds to his cooperation; e.g., several thieves divide the spoils taken away.

224. Principle 1. Whoever (with others only assisting) was the principal cause of the whole damage is held to restitution in solidum absolutely; or, as St. Thomas says: "He who is principal in the deed is principally held to restore."⁷³

The reason is that he was the cause of the whole damage, and the other cooperators were only his instruments. This indeed appears most clearly in one mandating damaging with respect to the mandatary. For it would be exceedingly inequitable if one who mandates damaging to others, after the damaging has been done, exacted from them a part of the restitution to be made. Hence, e.g., one who commands a servant to cause damage to another is held alone to repair the whole damage caused, nor can he exact that the servant restore a part of the damage. But if the one giving the mandate does not restore, the servant, as a true cause (although secondary) of the damaging, is held to repair the damage caused. He who by force, fear, or threats induces another to violate commutative justice is to be equated with one giving a mandate.

⁷³ S. theol. 2, 2, q. 62, a. 7, ad 2.

225. Principle 2. He who together with others concurs efficaciously toward the whole damage is held to restitution in solidum conditionally.

He is indeed held in solidum, because his action really influenced the whole damage. But he is held only conditionally in solidum, because the same damage is also to be ascribed to the other co-causes. Now a cooperator is regarded as an efficacious cause of the whole damage in two cases, namely:

1. when his cooperation was so necessary for inflicting the whole damage that, had he not concurred, the damage would not have been done; e.g., someone cast a vote without which an unjust sentence would have been impossible;

2. when the whole damage caused arose from a common conspiracy; e.g., three men form a conspiracy, i.e., each morally moves the others to kill an enemy, who is in fact killed by one as the executor of that conspiracy.

In practice the uneducated are rarely to be obliged to restore conditionally in solidum, as will be said in the following number with St. Alphonsus.

226. Principle 3. He who, without a common conspiracy, together with others is a partial cause of the damage is held to restore proportionately to his influence.

Hence, if several concur in committing a theft, each one is held to restore proportionately to his influence and to the goods taken away.

A partial cause of damage is one which is neither sufficient nor necessary for perpetrating the whole damage, such that even without it the effect would have occurred, although perhaps not so easily. E.g., two thieves wish to enter a certain house by night in order to steal. A third thief joins them, and thus the theft is perpetrated more easily. All three are partial causes, and each one is held to restore only as much as he stole.

The three principles stated can be comprehended briefly thus: When several cooperate toward unjust damage: 1. the principal cause is held in solidum absolutely; 2. a secondary cause is held in solidum conditionally if it efficaciously caused the whole damage; 3. otherwise a secondary cause is held proportionately to its influence.

You will ask: What is to be done in doubt: a) whether someone was the total cause of the damage; b) whether the others restored their part?

In the first doubt he is held only to a part, because a certain burden, namely, of restoring the whole, cannot be imposed for an uncertain obligation. Except, however, if by his action he knowingly rendered the matter uncertain. E.g., when several men violated a woman by force or fraud, they are held conditionally in solidum to repair the material damages caused by those violations.⁷⁴

In the other doubt, some answer that there is no obligation of restoring the whole. Thus Noldin.⁷⁵ St. Alphonsus writes to the point:⁷⁶ "The Salmanticenses and Roncaglia deny it, saying that each one is held to restore only his part, because it is to be presumed that the other associates have already restored. But this is by no means approved by me. It should nevertheless be noted that, although the uneducated are held in solidum, it is rarely expedient to oblige them to the whole, since they will with difficulty persuade themselves that they are held to restore the part taken away by their associates. - Indeed, it can quite well 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 would restore nothing if they were obliged to the whole." Therefore, the confessor should then commonly exhort the penitent to restore what he owes, without explaining the precise quantity, leaving that to the dictate of his conscience.

⁷⁴ Thus at least more probably; cf. Lehmkuhl, Theol. mor. I, n. 1165. St. Alphonsus seems to favor the contrary opinion, Theol. mor. l. 3, nn. 562 and 658.

⁷⁵ De praeceptis n. 489.

⁷⁶ Theol. mor. l. 3, n. 579.

227. On the order to be observed among unjust cooperators.

This question is closely connected with the preceding one. For the measure of the restitution to be made and its order are ordinarily proportionate.

Principle. If the cooperators inflicted the damage in the same degree and manner, each ought to restore equally and indiscriminately; but if they exercised influence in a different degree, they are held in the following order: 1. he who now detains the thing; 2. the one giving the mandate; 3. the executor; 4. the other positive cooperators; 5. the negative cooperators.

Explanation. An equal order is present if each cooperated in the damaging in an equal manner. E.g., five thieves took away the sum of 10,000 francs. Each one is held first and immediately, without regard to the other thieves, to restore 2,000 francs.

But when they exercised influence upon the damage in an unequal degree:

In the first place, he who detains another's thing, whether in good or bad faith, is held to restitution, because the thing cries out to its owner. If the thing no longer exists, he is regarded as the detainer who above the others obtained profit from another's thing.

In the second place, upon the failure of the detainer, the one giving the mandate is held to restitution, because he is the principal author of the damage. A counselor, however, is equated with one giving a mandate: a) if he induced the other into invincible error; b) if the damage which followed from the counsel was useful to the counselor alone and not to the executor.

In the third place, the executor is obliged, because he acts in some way in his own name and, after the one giving the mandate, has a more principal part in the damage than the other cooperators.

In the fourth place, the other positive cooperators are held, namely, the counselor, the consenter, the flatterer, the receiver, and the participant. Among these there is no order, provided, however, that they caused the damage in nearly an equal manner.

In the last place, the negative cooperators ought to restore, namely, the silent one, the one not obstructing, and the one not disclosing, because these ordinarily have less influence upon the damage than all the others.

Corollary. If the principal cause of the damage restores or obtains remission from the legitimate owner, all the secondary causes are then held to nothing. Conversely, if a secondary cause restores or obtains remission of his part, the principal cause is not thereby freed, nor are the other secondary causes. If one of the secondary causes restores his part, the principal cause is held to compensate him; but if he restores the whole, then, upon the failure of the principal cause, the other secondary causes also ought to compensate him according to a proportionate part.