Article II. On Unjust Damaging

An unjust damager is called one who harms his neighbor in the goods of fortune, and yet does not thereby become richer. One is formally unjust and another juridically only unjust, according as the fault was theological or juridical. - But theological fault is called that which includes an offense against God, that is, formal sin, whether mortal or venial. But juridical fault is the omission of diligence, whence damage comes to another, whether it is a formal sin or not. This again is distinguished, and from the common interpretation of Roman law, is gross, slight, very slight. Gross fault is the omission of diligence which men are commonly accustomed to apply in similar affairs. Slight fault is the omission of diligence which the more prudent and more diligent men are accustomed to apply. Very slight fault is the omission of diligence which is customarily applied only by the most prudent and most diligent. - Cf. St. Alphonsus, n. 549. - Kenrick, tract. 10, part. 2, n. 177.

I say. An unjust damager is held to restore the whole of that which is equivalent both to the thing damaged and to the foreseen damages arriving beyond the thing damaged itself. The reason is that otherwise the injured owner would not be made altogether indemnified, which is required for repairing justice. - But in order that he be held to this from natural right, and consequently in the forum of conscience, before any sentence of the judge, it is necessary that he have damaged truly, efficaciously, and formally. Truly indeed, insofar as he violated a strict right through the injury of commutative justice; efficaciously, insofar as he was not only the occasion, but the proper cause of the damage, so that the effect can and must be imputed to him; formally at last, insofar as he adverted to the unjust action and properly sinned before God. - I said before any sentence of the judge, because after the sentence of the judge an obligation of restoring can arise in conscience even from merely juridical fault. For one must obey the just sentence of a judge; otherwise the laws would not provide for public security and would be empty. But the sentence of which we are speaking is just, because that law is enacted for the common good and tends to making men more cautious, lest they inflict damage on others. - Cf. St. Alphonsus, nn. 550 and seq.; and Hom. Ap., nn. 29 and 41. - Billuart, dissert. 7, art. 4.

Question 1. Whether theological fault is required for inducing the obligation of restitution for damage inflicted upon another's thing, which was held from some contract, for example, of lease, deposit, or loan for use, etc.?

Resp. It is controverted; but the affirmative opinion is, according to St. Alphonsus, very probable unless a special pact intervened. The reason is that the obligation of repairing an injury ought to pertain to the same forum to which the injury itself pertains. - I said unless a special pact intervened, because then a special obligation is knowingly and freely assumed. But theologians who hold the negative opinion affirm that this special pact is always present, not indeed expressly but implicitly; but they prove this by no solid argument. Cf. St. Alphonsus, n. 554. - Lugo, disp. 8, n. 106. - Lacroix, n. 177. - Antoine, part. 2, cap. 3, qq. 2 and 5.

Question 2. Whether he is held to restitution who indeed inculpably placed the cause of damage, but afterward did not prevent it, although he could have prevented it?

Resp. Affirmatively, and the reason is that each one is held from justice to prevent his action from harming his neighbor; therefore he is held also to prevent the evil following from his action from persevering; and consequently, once the error is known, he must correct it, and if he does not do so, then he sins gravely and assumes the obligation of repairing all the damages which come from this. Cf. St. Alphonsus, n. 564.

Question 3. Whether damage following from a cause culpably indeed placed, but already retracted when the damage is inflicted, must be repaired?

Resp. Affirmatively, at least if that damage was determinate and foreknown in species. The reason is that the damager then properly contracted the whole malice and assumed the obligation of restitution; but then he harmed not only affectively, but also by acting effectively and really. Therefore in this way too he must repair the injury, and simple retraction of the will does not suffice.

Question 4. Whether damage inflicted per accidens indeed, but while being occupied with an illicit work, must be repaired?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even confusedly. Nor does it matter that the action was illicit; for this pertains nothing to the notion of justice. Thus a cleric who, by being occupied with hunting contrary to the prohibition of the Church, killed a man as though he were a wild beast, is no more guilty of injustice than a layman who had done this. - Cf. Vogler, n. 170. - Lugo, disp. 8, nn. 72 and 82. - St. Alphonsus, Hom. Ap., n. 39.

Question 5. Whether you are held to repair damage which you inflicted upon someone by error, while you intended to harm another, for example, if you burn the house of Caius, which you think to be the house of Titius, your enemy?

Resp. It is much controverted among theologians, but with St. Alphonsus and others the negative opinion seems probable. The reason is that in this case the damaging action is materially only unjust toward Caius and affectively only unjust toward Titius. It is indeed true that then all the conditions required for urging restitution from unjust damaging are verified, but not in relation to the same person, which is altogether necessary. - Cf. St. Alphonsus, n. 620. - Lugo, disp. 17, n. 75. - Lacroix, n. 200.

Question 6. To what is he held who indeed inflicted grave damage but with light fault, for example, from defect of advertence, etc.?

Resp. More probably he is held to nothing. For he cannot be obligated either under grave obligation or under light obligation: not under grave, because grave obligation does not have proportion with light fault; not under light, because light obligation does not have proportion with a grave thing. - Cf. St. Alphonsus, n. 552. - Lugo, disp. 8, n. 56. - Vogler, n. 109.

Indeed the opinion of those who deny that there is a grave obligation of compensating grave damage inflicted by deliberate theological fault, but only venial fault on account of ignorance or inadvertence to formal gravity, even if the material and objective gravity is known, is probable. For this obligation is not certain; if it were given, it would be either from the thing accepted, or from unjust taking. But not from the first, because the thing is supposed no longer to exist either formally or equivalently; not from the second, because the obligation of restoring ought to be proportioned to the act itself insofar as culpable, and indeed against commutative justice, for the violation of which it is, as it were, a penalty, which cannot be above the demerit. But here the fault is light, and since, where no fault intervenes, there can be no natural obligation, so neither can there be a grave obligation where grave fault has not intervened. Finally, a grave natural obligation does not arise from a light sin, if there is no advertence to the objective gravity, or the material gravity of the damage, or the formal gravity. Cf. Wirceburg, vol. 6, n. 585.

Question 7. Whether he who inflicted grave damage through several venial faults deliberately committed is held under grave obligation to repair that whole damage?

Resp. 1st. Affirmatively, if the damage inflicted is upon the same person, although the damager did not sin gravely. The reason is that here he is held to repair the whole damage voluntarily and freely committed; but the whole damage was freely inflicted and besides is grave by hypothesis; therefore that whole damage must be repaired, and if the damager does not do this, then indeed he will sin gravely. But otherwise one must answer, at least probably, if minute damages were inflicted on diverse persons; because no one has suffered grave damage, not even radically, as when small little thefts are committed. Cf. Vogler, nn. 124 and 126. - Lugo, disp. 8, n. 69.

2nd. But others deny: for it makes little difference whether the objective gravity of the damage is known all together in one taking, or successively in several, if in neither is the formal gravity known. Those individual damagings were light; the formal gravity also was not known. In this case several light obligations can coalesce into one grave obligation just as little as several light sins into one mortal sin. Cf. Wirceburg, vol. 6, n. 587.

Nor should you say that this opinion is identified with proposition 38 condemned by Innocent XI: One is not held under pain of mortal sin to restore what was taken away by a few thefts, however great the total sum may be. But this is not to the point, for even if you prescind from the present question, that proposition was most justly transfixed, because it says universally that there is no grave obligation of restoring what is taken away by several smaller thefts. For certainly this obligation exists if, before he committed the last small theft, the thief adverted that he was completing a grave sum; if he had from the beginning the intention of inflicting grave damage by several little thefts; finally, if those little thefts still exist in the thief's possession either formally or in equivalent. In these cases a grave obligation is certainly given; but from the condemned proposition it does not follow that it is present when the formal gravity of the damage is not known.

Question 8. Whether you are held to repair damage coming to someone on the occasion of your unjust action, for example, if you have stolen and the theft is imputed to him?

Resp. Negatively, whether you did not foresee or did foresee that damage, indeed even if you acted deliberately so that your action would be imputed to him. The reason is that the intention, however unjust, does not make that work externally and materially also unjust with respect to a third party, when of itself it is not such. Except, however, if at some time the circumstances were such that between them and a grave suspicion concerning another there would be a true connection, or if someone expressly used those means which of themselves provide a most grave suspicion for accusing another. Cf. St. Alphonsus, nn. 635 and 636. - Lacroix, n. 157.

Question 9. Whether an owner is held to repair damage inflicted upon a neighbor by his animals?

Resp. Affirmatively, if from theological fault he neglected to watch over the animals. For each one by natural right is held diligently to guard his animals, lest they inflict damage on others, just as he must guard against detriment coming to his neighbor from his own actions. But, theological fault being excluded, he is indeed not held before the sentence of a judge, but he is certainly held after the sentence, as is clear from what has been said.

But as regards us, Kenrick has these things: "By most American laws, as also by English laws, animals inflicting damage are detained until satisfaction is made to the injured person, and they are sold by public authority if the owner neglects to redeem them. But if the owner of the estate omitted to enclose it with a lawful fence, he can recover nothing, but he himself will be held to repairing the damage, if he has wounded or killed the animal." - Cf. Kenrick, tract. 10, part. 2, n. 185.

Question 10. Whether he is held to restitution who prevented another from obtaining some good?

Resp. 1st. Affirmatively, if the one impeded has a strict right to that good. 2nd. If he does not have a strict right to obtaining the good, one must distinguish: Affirmatively, if by unjust means he is impeded from obtaining the good; for anyone has a strict right not to be impeded unjustly from the obtaining of a good of which he is not unworthy. In this case restitution must be made according to the certainty or probability by which he is judged otherwise to have been going to obtain such a good. Negatively, if he is impeded by means just in themselves, because then no right of another is violated. - Cf. St. Alphonsus, Hom. Ap., n. 61. - Lacroix, n. 69. - Laymann, l. III, tract. II, cap. VII.

Hence he exists as obligated to restitution toward a son who induces the father to exclude him from an inheritance to which by civil law he has a strict right. Likewise he is held to restitution who, by lies scattered against a poor man, prevents alms from being given to him. Those sellers also are held to restitution who unjustly detract from other sellers and from the merchandise for sale among them, in order that they may turn buyers away from them and entice them to themselves.