§ VII. On Negative Cooperators

Negative cooperators are those who do not prevent the damage of the neighbor when from office they are held to prevent it. They are commonly called the mute one, the one not opposing, the one not revealing. 1st. The mute one is he who does not speak, does not cry out, does not warn beforehand the one to be damaged, while by office or contract he is held to this. 2nd. The one not opposing is called he who, while damage is being inflicted, does not oppose, does not guard the thing, although he ought to perform this from justice. 3rd. The one not revealing is called he who, after damage has been inflicted, does not denounce the damager to the injured owner or superior, although from office and thus from justice he ought to denounce. Moreover the same principles and the same moral applications suit all these.

I say. By reason of damage not prevented, all and only those are obligated to restitution who from office were held to prevent it. All indeed, because, the office being supposed, there already exists a contract or quasi-contract which obligates from justice; but only those, because, the office failing, the whole force of obligation is from charity. But it is further necessary, for imposing the burden of restitution, that those who from office are held to prevent damage be able to prevent it without grave burden, because neither a contract nor positive law is accustomed, at least for the most part, to obligate with grave inconvenience. - Cf. St. Alphonsus, n. 573.

Question 1. Whether guards, for example, of woods, etc., are held to repair damage inflicted upon the owners?

Resp. Affirmatively; if by reason of their negligence and dissimulation the profit of the owner ceases, they are held to compensating the profit ceasing and the damage emerging. - Lugo, disp. 37, sect. 8.

Question 2. Whether the same are held to restore the price which perchance they accepted for dissimulating?

Resp. They are not held after the fact, neither to those from whom they accepted, nor to the owner: not to those, as we saw before when speaking of acceptance for an evil thing; not to the owner, because that is not taken away from the owner. They must make good to him the detriment which he has suffered, not the price which is handed over for the detriment. - Lugo, ibid.

You Will Resolve. - 1st. Servants are not held to restitution, at least probably, when through fault they do not prevent damages inflicted upon the master, because they are not hired except for labor and for general assistance. Nevertheless, except those who are placed over the keeping of a special thing and conduct themselves negatively while they see damage being inflicted on it. Cf. St. Alphonsus, on the fourth precept of the Decalogue, n. 344. - Ballerini, note (a), p. 582, note (b), p. 582, and note (a), p. 583.

2nd. A superior is not held, at least as to the internal forum, to repairing damage inflicted by his subjects, even if by not preventing the damage he sinned gravely. The reason is that the quality of superior by itself does not suffice for someone to be constituted as quasi-sponsor for the damages of subjects. Nevertheless, except if his silence is equivalent to a positive impulse. I said as to the internal forum, for as regards the external forum and precisely concerning servants according to our law, the superior is held if either expressly or implicitly he wills or approves the damage inflicted by the servant. But he is judged to will this damage when the servant causes it under his immediate supervision or from natural and culpable negligence known to the master himself. Cf. St. Alphonsus, n. 578. - Kent, Comment., vol. 2, part 4, lect. 32, n. 259.

3rd. For the same reason neither a husband nor a father is held for damages inflicted by a wife or by minor children. But in the external forum they are sometimes held; but in what cases and by what reason, you may see in Kent, Comment., vol. 2, lect. 28 and 29.