§ 2. On Restitution on Account of Real Injury

Principle. Since restitution supposes injustice, restitution is not therefore to be made because the guilty person has been made richer, but because the other has less on account of his own right having been injured by the guilty person. On account of his own right having been injured, I say, or because he has less than he ought to have.

But here it is useful to consider separately the two roots of restitution, so that we may successively ask and attempt to determine what possessors of another's thing, and again what unjust damnifiers, are bound to restore.

I. Principle. All things return to this: that possessors, unless they are excused by a just privilege of positive law, should satisfy the real rights of others (i. e. rights in the thing), execute the promises of agreements, and, if they have been unjust, repair damaging injuries.

1. Therefore the possession of another's thing raises questions which directly regard the thing, the fruits, and the damages of him who has the right; indirectly, the execution of agreements to which possession of another's thing has given place.

2. Possession is distinguished into possession in good faith, i. e. here, with an uninjured conscience concerning the dominion acquired, and possession in bad faith, i. e. dominion acquired against conscience.

Theologians moreover distinguish detention in good faith, which can be joined with possession in doubtful faith and can suffice for prescription in conscience. For a possessor can have doubted from the beginning or only afterward; the doubt can be about a derivative title: whether he bought from the owner, or about an original title: whether the thing has been abandoned or lost by the owner, so that he can occupy it or acquire it by usucapion as belonging to no one; he can detain the thing from the beginning or afterward with a conditional intention and one of inquiry and of restoring it to the owner if he is found, or with an absolute intention. Good faith, in the widest usage, denotes concord between intention and conscience.

II. The Possessor in Good Faith. 1. As regards the thing itself:

a) He is not responsible for a fortuitous event.

b) He can acquire by usucapion, and he is permitted to use the privileges of positive law.

Not rarely, on account of those privileges, the very delivery that has taken place to a possessor in good faith, or the inscription of his name in public registers, assigns the thing definitively to the possessor. Cf. 402.

c) He cannot prevent the owner from vindicating his own thing (except when usucapion has taken place); indeed, he must restore it spontaneously.

But what if, in order to recover the price which he himself gave, it were necessary to restore the thing to the seller, the thief? Many permit him to do this, because he does not place the thing in a worse condition.

But if another way is available for recovering the price, it is agreed that this way must be entered upon.

d) He who, by destroying or consuming the thing, has thence been made richer, whether directly, through positive gain, or indirectly, while he spared his own thing: from that advantage, insofar as it is to be attributed to the possessed thing and not to the industry of the possessor, he must make the owner indemnified concerning the thing lost, or, as others wish, restore the value which the thing had when it was being consumed.

e) He need restore nothing to the owner for a thing which he has handed over to another without gain; indeed, as is probable, neither for a thing which he has handed over with gain, as if, for the donation of the thing having been made, the donee out of gratitude of mind sent another gift to the possessor. For the right of the owner draws to itself the thing itself, but not the gain of the possessor.

2. As regards the fruits. Considering the law of nature, a possessor in good faith would have to restore existing fruits or fruits usefully consumed insofar as they were natural, expenses nevertheless being deducted; but many positive laws establish that a possessor in good faith can simply make the fruits his own.

Thus the Code of Ecuador, 898; Argentine, 2157; Austrian, 330; Belgian and French, 549; Bolivian, 293, 294; Brazilian, 510; Canadian Q., 411; Chilean, 907; Colombian, 964; Costa Rican, 327, 328; German, 955 [cf. nevertheless 2020]; Guatemalan, 519; Helvetic (Civil Code) 938; Spanish, 451; Italian, 703; Lusitanian, 495; Mexican, 834; Dutch, 604; Nicaraguan, 907; Panamanian, 137; Peruvian, 170; Salvadorian, 937; Uruguayan, 649; Venezuelan, 686.

Concerning this acquisition the laws of England and the U.S.A. are silent.

One must attend whether, according to the received interpretation of the law, the fruits are acquired already by their very birth or production, or only by perception; and whether or not the expenses of cultivation are to be paid back by the owner for the fruits which the possessor in good faith has acquired.

3. As regards damages: if you attend to opinions, he is compelled to repair no damages. Yet it seems truer that at least from equity it is required that, by means of the gain received from the thing, the possessor repair the damage which by his own deed, although not voluntary, he brought in. For gain received from the thing is, as it were, a fruit of the thing; damage arising to the owner is, as it were, an expense by which the fruit was received. But fruits are not understood except with expenses deducted. Therefore if the fruit is gathered by the possessor, he must pay the expenses, i. e. repair the damage. Or, if you prefer, having been made richer from another's thing, will he not be moved by a sense of equity to take from the gain for repairing at least the owner's emergent damage?

4. As regards contracts: a) he can use the benefit of positive law which confirms a donation or sale made to him; - b) if he has sold the thing, since, as seller, he must provide eviction to the buyer who has suffered it, unless the buyer, by an untimely restitution of the thing, has harmed the seller himself. In the rigor of the law, such as ours, by which the sale of another's thing is declared null, he would have to restore to the buyer the price retained as if without title; but because the tribunals themselves are accustomed greatly to consider whether or not the buyer has suffered eviction, he seems able to await the sentence of the judge. If the thing has perished, let him see whether or not he has anything to fear in civil law. If nothing, at least counsel should be given to him that he restore to the owner the price existing with him, as if, unknowingly but in good faith, he had managed this one's business.

Counsel, I say; for we have not dared to press a strict obligation independently of civil law. Many authors indeed solve the case more severely. But they follow the classical guides who were writing while Roman law was in force, by which restitution of the price was commanded. Cf. l. 28, D. V, 3: "For after the senatus consultum it must be said that every gain is to be taken away both from the possessor in good faith and from the robber." Cf. also l. 55 in the same place. Therefore authors distinguish the varied origin of possession. If the possessor bought the thing and sold the same without gain, they agree that the price is not to be refunded to the owner who cannot recover his own thing. But if he has sold the thing with gain (at least non-industrial gain), whether he bought it for less or received it as a gift, then that gain or price must be restored to the owner who cannot recover his own thing: for the thing is represented by that gain or price; the possessor cannot grow rich from another's thing. Yet neither reason seems efficacious. Not the former: for the representation of the thing by the price cannot vary on account of circumstances extrinsic to the price. For what reason, therefore, is it denied when the thing exists or has been sold without gain, but affirmed when the thing has perished by chance and has been sold with gain? Not the other reason. For from the law of nature only this is had: no one can grow rich unjustly from what belongs to another.

Therefore injustice would have to be demonstrated. Nor, according to the principles of law, can there be imposed on a seller in good faith both the obligation of providing eviction to the buyer and conditionally, if eviction has not had to be provided, the obligation of restoring to the owner the price obtained (cf. e. g. Aertnijs-Damen, I, 751). But once the sale has been made, by no direct relation is the possessor in good faith now bound to the owner of the thing. Nor is he held from unjust taking, since he has not sinned, nor from the thing received, since it has passed elsewhere. The owner can vindicate his own thing where it is, not where it was; but he has no personal action against the possessor in good faith. "Certainly, if while the purchase and sale were being celebrated, the owner had suddenly been present, to each one his own would have had to be restored, that is, the thing to the owner, the price to the buyer; but what afterwards happens by chance does not change the law" (d'Ann., II, 239, note 8, II).

Wherefore we judge it equitable that a possessor in good faith restore to the owner who is deprived of his own thing the price which he can restore without damage to himself, as if he had involuntarily but usefully managed the business of the owner; but we do not think that a strict obligation of justice of acting thus can be gathered from the law of nature.

N. B. As regards expenses, or costs made about another's thing, necessary expenses are to be paid to the possessor in good faith, i. e. those without which the thing would have suffered detriment, and useful expenses which have increased the value of the thing.

Yet the possessor in good faith acted at his own risk. Wherefore for useful expenses attempted in vain he can demand nothing. Merely pleasurable expenses are not to be compensated to him, but by him, if they are separable, they can be taken away.

The Possessor in Bad Faith:. 1. As regards the thing itself:

a) He is responsible for a fortuitous event, unless nevertheless it would have perished by the same identical fortune, or at least, as some benignly permit, at the same time in the owner's possession. Nor does he formally owe anything because the thing, affected by an intrinsic defect of disease or age, has perished.

b) He cannot acquire the thing by usucapion nor use the privileges of civil law,¹ except the prescription of five years, concerning which above, n. 404, 2, c.

c) He must restore the existing thing with all increases which have come forth from the thing and not from the industry of the possessor.

d) If he himself has consumed the thing, or has alienated it in such a way that it cannot be recovered by the owner, he owes the value of this whole thing which was in it when it was consumed in that way naturally or civilly (as money spent). For as long as it existed, it belonged to the owner with its own value. Some benignly permit that only that value be restored which the whole thing had when the owner would have alienated or consumed it; but this is speculatively false. For the thing is preserved and grows for the owner. Just as he who had impeded the destruction of another's thing would have acquired no title from that to that thing or to its value for himself, so neither does the possessor in bad faith who prohibited the owner from alienating it obtain a right in the greater value of the thing preserved.

2. As regards fruits: he must restore all non-industrial fruits. Yet because, properly speaking, consumable things bear no fruits, the interest of money is not to be handed over to the injured owner as a fruit, but it is enough to restore that interest which the owner himself would have received; while the price of a rented house must also per se be restored to him who would not have rented the house.

For one thing must be said concerning the class of money, another concerning the price of a rented house or rented horse. For not less than the thing itself, its use calls out for the owner. But the price of use is the money to be paid for rental. Therefore whether the owner would have rented the thing or not, the possessor in bad faith will be able to make his own only that increase of price which is to be attributed to his own industry. But money does not have a use distinct from taking it up. Hence every fruit of it can be called industrial. Cf. concerning the principle alleged, Lugo d. 17, n. 58 ss.; d'Ann., II, 211.

Some nevertheless contradict that common opinion, who think it enough that the owner be made indemnified (Cf. Lugo, l. c. Piscetta-Gennaro, II, 111).

And often a greater obligation will not be understood by a possessor in bad faith. Wherefore no greater one will then have to be imposed.

3. As regards the damages of him who has the right: the possessor in bad faith must repair all damages which in a confused way were foreseen as going to arise from the injustice. Therefore that possessor owes to the owner: the price of an animal which died from disease but which the owner would have sold before the disease; the gain which the owner would have made from a more opportune sale; the interest which the owner would have received.

4. As regards contracts, per se he must provide eviction to the seller [source reads venditori; the legal context seems to require "buyer"].

N. B. a) Many things will often not be established. Then let him restore the value which the thing had when it was consumed, with compensation of use added, and, if the thing was consumable, with modest interest added.

b) Restitution is owed to him whose certain right of dominion or possession has been violated.

c) Concerning expenses the rules established for the possessor in good faith return.

¹ Unless some civil law wishes to punish negligent creditors, who do not reclaim debts, with this sanction of civil prescription.

What if several have successively possessed the thing?.

He owes the thing before others who has it formally or equivalently, or has destroyed or consumed it. - Then succeeds the robber of the thing.

Each one will owe, before others, the fruits which he has received.

Each one is responsible for damages with which he has cooperated, and this separately or in solidum, according to the rules to be handed down later.

The Possessor in Doubtful Faith:. 1. As regards the thing itself:

a) Every possessor in doubtful faith is bound by an obligation of justice to investigate the truth by effort and expenses which agree with the degree of doubt, the hope of success, and the importance of the thing. With the degree of doubt: wherefore a negative doubt can be despised; indeed even a positive one, if it is slight. With the hope of success: wherefore one can abstain from an inquiry which morally brings no hope of fruit. - With the importance of the thing: greater diligence must be applied to a greater cause. And because the diligence of him who perhaps must inquire at his own expense is graver or more difficult than that of him who is thereby exposed to no positive damage, more money must be spent on investigation when, by spending it, you will gain less, than when perhaps it will have to be deducted from your goods. Thus the finder of a lost thing will be able either to impute to the owner, if he is found, the expenses made for seeking him, or, if he himself has occupied it, to compensate himself from the value of the thing found. Moreover a possessor, at least one not to be blamed, is not bound to take upon himself expenses for removing the doubt which, considering the importance of the thing or the hoped-for fruit, are to be judged truly notable or grave. But he who from the beginning of possession or afterward has been guilty of injury is held more gravely than an inculpable possessor.

b) Once inquiry has been made: 1) he must satisfy the certain right of another or of others, according to the rules for a possessor in good or bad faith, according as he has been innocent or immune from delict, or from the beginning of possession or afterward, by neglecting to inquire, has sinned against justice; - 2) but if the certain right of no one has appeared, while the doubt remains, although many speak more severely about him whose possession was badly begun, he need restore nothing. And he is placed in that theological good faith which, in accommodation to positive laws, permits the thing to be acquired by usucapion.

c) He who, by omitting inquiry, has been the cause that he cannot discover the true owner or restore the thing to him who has the right, will have to destine it to the poor or to the common utility. - If that is not established, although many respond more severely, an uncertain obligation will not be able to be pressed.

d) He who, doubting concerning his own right, has despoiled of his possession a possessor who is not in bad faith, must per se restore the thing to him and repair damages. Cf. what was said concerning hidden compensation, n. 639.

e) We cannot make the condition of him who has the right worse. Wherefore the possessor must apply ordinary diligence in preserving the thing and in gathering fruits from it, nor can he dispose of the thing, unless the hope of certain truth has vanished, or unless, for avoiding damage or using an occasion of gain, the thing had to be usefully expended, with the intention of refunding the utility to the owner if he appears.

N. B. He who by an unjust action has been the cause of the doubt must himself bear the expenses for removing the doubt or discovering the right. Except if that difficulty was not foreseen even in a confused way. On the other hand, he who is not to be blamed will impose the expenses on the owner by right and merit.

2. As regards fruits and connected gains, the legal privilege of acquiring fruits does not belong to the possessor in doubtful faith, as such. Wherefore, with the principal thing, just as other advantages of the thing, they will have to be restored insofar as they exist, or even insofar as they have been consumed without good faith. Except, however, those which are owed to his own industry.

3. As regards damages: he must make good the damages who, by acquiring in doubtful faith, has made the condition of him who has the right worse, or who has neglected to inquire.

4. Nothing special is to be added about agreements and expenses.

You will ask how far it is lawful for us to acquire a thing from a possessor in doubtful or bad faith.

We are prohibited from occupying or acquiring anything in doubtful faith with the absolute intention of possession. But with a conditional intention, complicity being excluded, we are not prohibited from acquiring a thing even from a possessor in doubtful or bad faith, if we do not seem to make the condition of him who has the right worse, and if we take on a positive obligation of seeking the one who has the right and satisfying him. Then, while the doubt perseveres, although many command partial restitution, nothing strictly seems to be owed.

But if our acquisition must be charged as probable complicity in another's injustice, this action will be unjust, unless that complicity itself is excused by a grave reason. After the fact, if the matter cannot be investigated, there will not be certainty about the obligation of restitution.

Principles. 1. An unjust damnifier, as such, must per se restore as much as the damage which has followed or has been unjustly inflicted. That quantity will have to be estimated both from the quantity of the right, and from the thing taken away, and from emergent damage and ceasing gain.

2. But what has happened beyond prevision, even confused prevision, since it has been invincibly unknown, is exempt from obligation as involuntary.

3. It can also happen, in a lighter matter, that condonation by the damnified person can be presumed.

Corollaries. 1. To him who had a right in a thing actually existing, its whole value must per se be restored. But if he had only a right to a thing, for example from money lent, or the thing was present only in hope, for example a future crop, a prize in a contest: an estimation of the hope itself must be made, according to the greater or lesser certainty of obtaining the thing. In the absence of a better indication, where there was solid probability, for example of carrying off a prize, the damage will be able to be estimated at half the value of the thing. But where it can be done, it will be better to enter into an arrangement.

2. Whatever fruits (properly and improperly so called) the owner himself would have obtained, the author of the damage must restore. But fruits will always be understood with expenses deducted. Wherefore, since today a fruitful investment of money is to be presumed, almost always not only are the fruits of the damaged fruitful thing to be restored, but also, for the value of any destroyed thing which had to be supplied by another, a certain civil fruit will have to be restored. Yet that presumption can be destroyed by a contrary fact. That fruit will have to be estimated from the value of the hope, so that a greater amount is to be paid to a banker conducting prosperous affairs, but a lesser amount to him who conducts no business or whose condition of fortunes is unstable. But since the circumstances which ground the estimation of damage are often unknown, and the inquiry itself cannot remove the doubt, where there is place neither for composition nor for transaction, it will be enough to restore the thing with the customary interest of an entirely safe investment. For the owner either would have invested the money in this secure way, or would have sought a greater fruit, but at his own risk: by the interest of a safe investment that hazard is compensated to him.

3. A modest alms extorted by fraud, on account of presumed condonation, is not to be restored. But a large one, by him who lied about poverty itself or necessity, will indeed have to be restored. Many judge that the option then made of restoring it to the owner or to true poor persons remains. Falsely alleged probity is not thought to generate anything except an accidental error, which does not per se seem to stand in the way of the value of the donation.

4. He who has taken away a thing which is indeed fruitful but of small value and for which another is easily substituted seems to satisfy by restoring the thing taken away. Thus he who has stolen an ordinary hen generally need not be solicitous about restoring the eggs. For the willing owner had an easy supply of obtaining a similar hen; and the value of the hen is so modest that no civil fruit of the money which is necessary for buying the hen is to be thought of.

Yet it is necessary that the owner have noticed the matter. If not, he had no supply for substituting another hen for himself, and the eggs, today of a price not to be despised, which the hen secretly taken from the owner would have laid, would be owed to the owner.

I. One must begin from this principle: since private persons, in their mutual relation, are equally, as such, inviolable, and this independently of merit or demerit, a) none can be assumed by another as a means for himself; b) no evil of one's neighbor can be intended or chosen, but only, on account of a just cause, permitted; c) a conflict of rights cannot be had except about goods which, by first destination common, can pass from one person to another.

II. He is guilty of injury who takes away from someone, not freely consenting, the good of supernatural grace, of truth, of the use of reason, of reputation. Therefore he is injurious:

1. Who has induced someone to sin, or has prohibited him from entrance into the novitiate or from profession, not by mere persuasion and example, but has efficaciously procured this by fear or fraud: he must indicate apt remedies and repair other damages.

2. Who has taught errors, especially practical errors; for speculative ones are less damaging per se.

3. Who by fear or fraud has intoxicated someone not consenting, or by an injection of morphine has deprived him of rational life in sickness.

4. Each person has a right that he be esteemed and treated according to his own innate or acquired goodness. That right is violated by rash judgment, detraction or calumny, and contumely.

a) Rash judgment is an interior but firm imputation of guilt on account of indications which are known not to be sufficient. Wherefore, without an evil affection toward the person, it is scarcely committed. And it is judged grave against justice if it is concerned with a gravely defaming guilt.

Mere suspicion, or begun assent, and doubt, or suspension of assent, since they do not take away from the mind of the one suspecting or doubting every good estimation of one's neighbor, even if they are rash, are judged venial by their genus.

b) By detraction and calumny (which here is the false narration of a defaming thing) reputation is taken away in whole or in part, which is opinion or estimation concerning another's excellence. There is distinguished connatural and common reputation, by which one is immune from reprehension, and positive or special reputation, which one acquires by good merit. To the former every human being per se has a right; to the latter, only he who has merited it. For common utility itself requires that reputation be preserved whole for each person, and not perish on account of an accidental defect.

There is distinguished direct detraction, which is intended or chosen, and indirect detraction, which is actively permitted; formal, or blameworthy, and material. Detraction which is intended or chosen by a private person is always unjust; but proportionate utility excuses its active permission; and the good of reputation is situated in the high dominion of public power.

The gravity of detraction is to be estimated not from the thing narrated but from the consequent detriment of estimation. To narrate another's hidden crime to one prudent man is not judged grave per se. Besides a defect of advertence, also modest credence given, or a certain attenuation of the thing imputed, can remove grave detraction.

But charity can gravely forbid the revelation of a crime which is not opposed to justice.

Reputation is to be restored by praise of the person, by honor exhibited, and also, if the detraction was lying, by open retraction, before the immediate hearers, and also, per se, before the mediate hearers. He who in good faith is excused from fault must nevertheless impede the sequel of his action from justice, unless he is excused by a relatively grave inconvenience. The obligation of restitution can be taken away by impotence, condonation, reputation recovered, compensation of the injury, or danger of a greater evil.

c) Contumely is contrary to honor. Honor is a testimony concerning another's excellence or goodness. Therefore contumely will be a signification of contempt by words, writings, deeds, sometimes by the mere denial of honor.

It not only saddens one's neighbor and thus is opposed to charity; but it also injures, in the opinion of men, dignity itself or the title of honor, and besides, in the offended person himself, spirit and confidence for acting. Wherefore it is an injury per se damaging. It is mortal by its genus, whether on account of an affection of grave contempt or hatred, or on account of grave dishonoring: this can vary according to the quality of the sinner or of the dishonored person, so that a parent or Superior can even without sin need certain reproaches. The species does not seem to vary on account of the excellences despised. Contrary, therefore, to what Molina thought, De iust., tr. 4, disp. 46, not charity alone but also justice, independently of a simultaneous wounding of reputation, requires restitution of honor by acknowledgment of excellence, petition for pardon, etc., unless the offended person, by himself or through a judge, has taken vengeance. Contumely, in the concrete, is judged to be a graver injury than detraction, because by external treatment it seems as it were to complete detraction.

III. He is injurious who has injured the body of his neighbor.

1. Direct killing by private authority is intrinsically illicit; as is mutilation itself, unless it is directed to preserving the body or temporal life. By the consent of the patient the note of injustice can be removed, but not another malice. Grave cruelty in execution brings in a new species of ferocity. Accidental homicide or mutilation is imputed insofar as they were foreseen as probably going to follow from an action which, on account of such danger, was prohibited by natural or positive law.

Corollaries. a) The intrinsic malice of homicide and suicide infects the duel, i. e. a contest of two or a few undertaken from agreement, or from a preceding pact, with lethal arms. A pact, if it is freely entered upon and is not compelled by another's provocation, removes injustice. But the evils foreseen from a denied duel in no way excuse the duelist, since immunity is sought from the evil act itself; nor does fear from censure render him immune, lest it could commonly be eluded. Cf. I, 220.

A duel is punished a) by excommunication simply reserved to the Supreme Pontiff, which from c. 2351 strikes ipso facto: "those perpetrating a duel or simply provoking to it, or accepting it, or furnishing any assistance or favor, and also those watching it by design and permitting it or, as much as is in them, not prohibiting it, of whatever dignity they may be"; - b) by privation of ecclesiastical burial, which affects those who, without a sign of penitence, died in a duel or from a wound received from it; - c) by infamy of law, by which duelists and their seconds are marked.

b) To exercise embryotomy or craniotomy upon a fetus certainly or probably living is intrinsically illicit, since it is the certain or probable (by probability of fact) homicide of an innocent one, who, while he is developing in his own place, cannot be compared with a materially unjust aggressor.

Canonically, homicides and cooperators are irregular from delict (c. 985, 4°); a church is violated by a notorious delict of homicide or by an injurious and grave shedding of blood (c. 1172, § 1, 1° and 2°); a cleric legitimately condemned for homicide must be degraded, while a layman is ipso facto excluded from legitimate acts and from any function which he had in the Church.

2. Restitution. On account of a wound or killing there is owed to the injured person himself or to the heir: a) that compensation of the injured body which the judge has defined; b) compensation of foreseen spiritual damage through suffrages of which the victim was deprived; c) compensation of temporal damage: expenses of sickness, emergent damage or ceasing gain; not, however, funeral expenses, which would always have had to be made. To the wife and children certainly only those aliments must be restored by which they are deprived through that killing, since as regards the remaining patrimonial damage the killing is not injurious to the family. Nor is anything owed to creditors, since the debtor is not the thing of the creditor; nor to an insurance society, for whose utility the killing was not prohibited. - Nothing is owed from justice if before death the wounded person remitted all things, or if the wound was inflicted in a duel to which the killer did not compel the other unwilling person.

3. The direct procurement itself of abortion, i. e. the expulsion of an immature fetus, is never licit. For if the fetus is animated, a lethal wound, through abortion, is inflicted upon a human person; but if it is provoked in the first days, so that more probably a rational soul is absent, the character of malice against nature is shared. But when the danger of a dying mother is imminent, abortion would too late be attempted for saving the mother herself.

But the acceleration of birth will be licit as often as in this way the life of the infant is better provided for, or at the same time the life of both infant and mother, who is necessary to the infant, is provided for.

Those procuring abortion, the mother not excepted, incur, once the effect follows, excommunication latae sententiae reserved to the Ordinary, "and if they are clerics, let them moreover be deposed" (c. 2350, § 1). Those provoking abortion, once the effect follows, and all cooperators are also irregular from delict.

But indirect procurement of abortion is excused by a grave and proportionate cause.

Before present necessity, it is not lawful to cut out an ectopic fetus; when the necessity of saving the mother is urgent, that excision today cannot be condemned as certain. Nor is it established, unless probable baptism is excluded by this way, that the use of electric force or of an injection of morphine is prohibited more than excision, since, by way of one thing, that which can be compared with an ulcer and the human ovular content are destroyed.

4. A surgical operation, suppose a Caesarean section, which is necessary for procuring sufficiently certain baptism for the infant, must per se be undergone by the mother, even with her own danger. She is not bound to undergo that danger for preserving the temporal life of the offspring. But the mother is to be gently induced to obey the counsels of an upright physician. Once the mother is dead, Caesarean section must per se be performed, even for extracting an immature fetus who is hoped to be able to be baptized. But prudence today prohibits clerics from direct intervention.

5. He also is injurious who does not hesitate to harm another's health, for example by communication of a grave disease.

6. It is lawful to use necessary force for repelling an aggressor whose aggression is morally present, even if the defensive action certainly brings with it the effect of the aggressor's death, provided that a proportionate good, such as life, integrity of members, chastity, or a temporal thing of sufficient moment, either absolutely or with attention to the injured person, is placed in danger.

Vengeance differs from defense with the moderation of inculpable defense, because vengeance takes punishments after the perfect injury. In a civilized society this is reserved to public power, if you except certain medicinal punishments which are not very afflicting.

7. He who by force or fraud has extorted copulation from a woman is injurious to the woman, and, if she was married, also to her husband; the adulterer and his accomplice are injurious to the spouse not consenting.

To a girl for whom, through defloration, he has made marriage more difficult, the seducer must compensate that damage according to his powers: either by taking her willingly as wife, or by supplying a dowry. Reparation through marriage is more adequate, per se to be desired if the marriage can be happy; indeed then it must per se be imposed upon the promiser or deceiver. The expenses of supporting the offspring must be borne by the seducer alone, always preserving the duty of piety by which both parents are held in solidum to support the infant according to the condition of the mother.

Simple fornication is often not damaging. Fornicators take on the common burden of supporting the offspring. Except the prostitute, who is judged to have assumed that burden (otherwise rare).

Adulterers are held to repair according to their powers the damage which per se follows from supposed offspring, and probably they are in an equal place for that obligation. That damage is contained in the aliments and customary gifts or goods which legitimate offspring are accustomed to receive from parents or from ascendants. Greater detriments to be avoided bring it about that the adulteress scarcely ever has to confess the crime; and the other also, whether by too great difficulty or by doubt about his own paternity, is not rarely excused from the obligation.

An adulterine son is to be treated as a possessor in good faith, nor should he believe his mother revealing his origin.

Appendix. — Ask how far public power can dispose concerning the personal goods of citizens, and what must be observed concerning the law of war.

I. Not even public power can ever directly injure the innocent, even if it wished to take vengeance concerning the delict of others; but on account of the necessity of human society, God gave to it the faculty even of exacting capital punishment, the juridical order being preserved, unless the public safety has dispensed from preserving it.

II. It can also, when another way is lacking, declare war for its own defense, or for exercising vindicative justice. On account of a merely probable right, war cannot be brought upon anyone unless he has refused a friendly composition. And a competent satisfaction offered by the other party must per se be accepted. In defensive war it is enough that the committed injustice is not established.

Concerning the justice of war, common subjects indeed are not bound, but learned men and theologians or voluntary soldiers per se must inquire.

Those who are compelled to have a part in an unjust war must abstain from hostile acts, and only if they are personally invaded by an enemy in such a way that he is unwilling to give life to one surrendering himself, can they defend themselves.

In a just war, all those things are lawful which are necessary for the end of the war, and are not prohibited by natural law or by agreements. Faith given to an enemy must per se be kept. But reprisals can be exercised only against guilty persons or against goods, if it is necessary.

Since he who pursues his own right does not thereby make his condition worse, public power will be able to convert war into a duel of a few.

Once war has ended, restitution of expenses and of things taken can be sought on account of suitable satisfaction. And a treaty of peace, although signed under compulsion, must be observed, unless it has been vitiated by manifest inequity.

Even in an iniquitous war, since common soldiers do not seem to act from conspiracy, they are bound to repair only the damages which have been done by their own hand. The obligation of the commander or of public power is graver.

Irregularity from defect of mildness has been removed by the Code.