§ 2. On the Restitution of Cooperators

I. Principle. To whatever whole damage to be effected, or to whatever part of damage to be effected, each has unjustly and efficaciously contributed, he must repair that to the injured person, yet in such a way that the less principal cause has recourse (ricorso) against the more principal cause, from whom therefore he will be able to reclaim what has been paid. - Moreover, the more principal cause is that which has used the aid of the others physically or morally. Thus one mandating, one commanding, is more principal than one executing; the executor, than the counselor of the execution; he who has cooperated by positive action, than he who merely did not impede the execution. - The reason of the response is because the more principal cause subordinates the others to itself and, as it were, absorbs them.

II. Corollaries. 1. Therefore, he who alone was the more principal cause must make good, without recourse, every damage imputable to himself.

2. If several were equally principal, they must divide the damage among themselves. For these causes are coordinated among themselves. Yet each owes the whole to the injured person (who therefore are held in solidum): a) if they acted from conspiracy or a society of wills; for then, beyond the parts which they execute, they are formal accomplices of the others; b) if by some other reason they contributed to effecting the whole damage; whether because nothing could be effected without them, or because their cooperation truly pertained to the whole damage. So, at least, the common sentence.

When several are obligated in solidum, each owes the whole to the creditor or injured party in such a way that afterwards he can reclaim from the others the part paid for them. Therefore each must furnish the debt absolutely for his proportionate part, but conditionally (unless the others pay), the whole debt.

Besides that solidarity among debtors, there is also solidarity among creditors when, by force of agreement, each can exact the whole from the debtor, which afterwards they will have to divide among themselves.

3. Whatever one owes definitively or absolutely, he has to pay to the injured person unless it is morally established that satisfaction has been made to him: in which case he will have to return what has been paid to the one who made satisfaction.

But he who is bound only by a conditional obligation (i. e. if the others fail), then only must make good the damage when, either from an inquiry having been made, or from the customs or inability of the principal debtor, it is morally established that satisfaction has not been made by him and will not be made.

III. Scholia. 1. The unlearned understand with sufficient difficulty the obligation of restoring in solidum with recourse against others. Those, in turn, to whom restitution is owed will prefer to obtain a part rather than nothing. Therefore, if there is danger lest those obligated to the whole be unwilling to restore anything, the injured persons can not rarely be presumed to consent that only a partial obligation be urged.

Wherefore, from St. Alphonsus (Homo Apostolicus, tr. 10, n. 54), it will be preferable to exhort those unlearned in theological or juridical matters that they restore what they owe, permitting their conscience to define the quantity.

2. You should observe that, for damage to be from conspiracy, formal consent of intentions is not sufficient, but it is required that the damage have its cause in that consent. Thus the common soldiers of the same army indeed conspire; but by that conspiracy of the individual soldiers few are moved.

From the things said you will gather these applications.

1. Counselors per se had a partial and secondary influx into the whole damage. Wherefore per se they are conditionally held (after the principal causes) for the whole damage which would not have been done without the counsels.

2. Those who, an association having been made, commit thefts, are held in solidum for robberies foreseen in a confused way and for connected damages of persons or things, although some things were done by some and others by others. For all seem to have arisen from the conspiracy.

3. When several, without conspiracy, have exercised partial efficacy upon divisible damage, it suffices that each restore the part which he has injured, for example, the part of the house which he has destroyed. And the evildoer who acceded when no hope now remained of saving the part seems to have done no damage.

But if partial causality effected damage not divisible, as if four carry off a chest which three would have carried off, the patrons of the common sentence, not very consistently enough, obligate each to a man's share only (Lugo, d. 19, n. 82).

N. B. The opinion does not seem so established which obligates in solidum all those who, even setting conspiracy aside, furnished cooperation without which the damage could not be inflicted, or which truly was useful for inflicting the whole damage. And Lugo testifies that there is a certain controversy, d. 19, nn. 79 ss. - Nor is the obligation of restitution so certain which they impose conditionally on those who by an action not unjust in itself cooperated materially in injustice. Cf. d'Ann., I, 174; II, 93. These things can be attended to so that restitution may be urged less severely.

Norms. 1. He who has to restore another's thing or the fruit of another's thing as a holder must furnish that without any other regard of order.

2. He who is obligated as an unjust damager must immediately restore whatever, by this title, he owes absolutely; but what he owes conditionally, he owes only after him who is held absolutely. Therefore first the one mandating, or the primary cause, is held; then the primary executor; afterwards secondary causes are obligated.

3. Among those who owe conditionally, positive cooperators are obligated before negative ones; but among these themselves the order is defined by proximity. Those among whom no subordination is detected, however, are held equally.

Some doubt can be moved concerning the place of the counselor who was a persuader. Per se, he is placed after the principal executor. Yet if for his own sake he advised or asked that something be done, at least if the matter was done in his name, the counsel must be held as a virtual mandate. Cf. Less., Iust., c. 13, n. 42.

4. As often as, whether by condonation or by another reason, he who owes absolutely is freed, those who are conditionally held to that extent are freed; but the exemption of a secondary cause in no way frees the principal one.

I. Man can cooperate in another's injustice both positively, in six modes, and negatively, in three modes. Let us treat distinctly of positive cooperators.

1. One mandating, or commanding. To him, as to the principal author, are imputed all damages which, by a morally necessary nexus, are joined with the execution of the mandate, but not those which the mandatary has added by his own malice or vincible error. On account of the harmful power conferred, the one mandating can also be held by another title. By timely revocation the causality of the mandate, as such, is suppressed, though not always the causality of the counsel contained in the mandate.

2. The counselor, by doctrinal counsel, or counsel by which he communicates knowledge, has causality even principal; while by suasive counsel he exercises only secondary causality. But unless he has efficaciously revoked the counsel, the counselor of damaging counsel must make good the effects of the counsel, excepting those effects to which the proverb can be applied: "no injury is done to one consenting." An efficacious retraction of naked counsel is made by simple revocation; of counsel clothed with reasons, by new arguments being adduced; of doctrinal counsel (by which the mode of harming has been handed on), by effecting that the effects of the damaging knowledge can be avoided.

3. Consent is constituted by the concurring votes of several persons. Those who give a vote from conspiracy are authors of one morally single action; those who have given a vote necessary for the damage are compelled, by the common sentence, to bear the imputation of the whole damage; those who, without conspiracy, have given a vote beyond what was required must more truly be compared with those who, more numerous than was necessary, together did one damaging work, so that they must bear the damage at least by a man's share.

4. The flatterer or adulator, insofar as by his words he has impelled to the action or impeded restitution, can be held for damages.

5. Recourse or the receiver, who offers security either to the evildoer or to things carried off by robbery or taken away by theft, will be held for damages: a) insofar as he moved the evildoer to act; b) insofar as he furnished the means of executing; c) insofar as he omitted or impeded restitution; but not insofar as he freed the guilty person from penalties. Material cooperation of this kind can be excused by grave damage.

6. One participating in the booty will have to be treated as a possessor of another's thing; one participating in the action, if immediately, violates the negative precept of justice unless he is excused by the right of necessity; if mediately, he transgresses the positive precept of taking care lest our action bring damaging effects.

Those several who have given a cause efficacious per se of damage, so that it is unknown who truly was the author of the damage, if they acted conscious of future confusion, will be held, according to the principles, by a man's share. Those who were ignorant of this are held by only an uncertain obligation.

Negative cooperators are held to restitution insofar as, by an unjust omission, they did not impede damage which they would have prevented by their due action. In doubt, their obligation will be uncertain. Officials placed over taxes do not seem to be held by justice to exact fines.

II. On restitution. Whatever each has of another's thing, or to whatever damage each has unjustly and efficaciously contributed, that must be delivered or restored to the person to whom it pertains, yet in such a way that the less principal cause of damage owes after the principal cause, and can reclaim from the more principal cause what has been paid.

Moreover, the more principal cause is that which, using the others, has as it were absorbed the rest. Equally principal causes divide the damage among themselves, yet in such a way that each owes the whole if they are obligated in solidum, whether from contract, or from conspiracy, or even from causality which contributed to the whole unjust damage. Yet this last point is somewhat controverted.

Another's thing, however, must be returned by the holder without another consideration of order.

Positive cooperators are held before negative ones; among them the order is defined by proximity.

The liberation of him who owes absolutely frees him who owes only conditionally, but not conversely.