Article I: The Notion and Conditions of Injury

Notion. Violation of commutative justice receives the proper name of injury, and it is distinguished as personal and real, according as it directly regards the person, that is, goods of soul or body, or extrinsic goods. Each can be damnose, or a simple lesion without damnification, as if someone should take money from a chest where it was lying idle and then replace it in its place. Material injury is had whenever an action or omission lesive of right is committed; formal injury, however, when someone wishes to be injurious. Both can be per se conjoined, or per accidens separated, as if someone unknowingly kills a person, or if someone takes as another's what was his own.

Conditions of Injury. That an injury be committed, it is required and suffices that the right of one not consenting be violated.

"For injury is not done to one consenting." As no one can be unjust to himself, so neither to another who gives spontaneous consent to an action per se unjust; for he seems to act in this one's name. Besides, the active use of a right is a faculty: we use a faculty when we will. This principle is universal, so that it suffers no exception.

Nor is it an obstacle that there are inalienable rights: it is one thing to transfer one's right to another, another thing not to oppose one's right. Transfer is proper to an alienable right; non-opposition can be common to every right.

But in application, patrimonial rights are to be distinguished, whose disposition or active use can be in the power of another than the subject of the right, and rights strictly personal, whose disposition, inseparable from the person, is in the power of no one unless in the power of him whose right it is. The opposition of the former can be in the power of the tutor of an incapable person, while the others, during incapacity, are always judged to be opposed. Wherefore it is whole and entire for an adult to abandon a ship too full with certain danger of death; but no one can, in the same necessity, throw a sick infant into the sea. - Certain recent writers have imagined that consent concerning an inalienable right is invalid.

But that consent is not always given honestly, nor can it remove other malices besides the note of injustice.

Finally observe that, for the action of another to be injurious, it is not required that the owner oppose his right by a positive act, but it is enough that he does not positively consent.

— But unjust arts are two: violence and frauds. Yet between each there is this difference, that force brought upon a person in himself or in his goods is always per se unjust, while frauds are not unjust when, through them, aid, for example of knowledge, which is not owed from justice is merely denied.

But those things are per se opposed to justice which take away the free action or option of another by positive deception.

Unjust damnification is not made by omission, unless the other per se or from contract has a right to the action which prevents damage. Thus, for example, children or animals are to be guarded from justice lest they inflict damages on others.

Applications. 1. You ask concerning an action by which another is impeded from obtaining a good. Is it unjust? That future good is either owed from justice or merely hoped for. Its concession and acquisition can be honest, or be forbidden by moral law. These things posited:

1. The attainment of a good which is owed to someone from justice cannot be impeded by a voluntary action positively and per se without a sin of injustice and an obligation of restitution.

2. An action by which the attainment of a merely hoped-for good of another is impeded cannot be unjust from the object: hope is not a right. Therefore every injustice will have to be drawn from the mode, if the mode contains some violation of right. Unjust modes are force and fear unjustly struck into a person; lesion of reputation by detraction or calumny; damnification of another's thing, for example of a statue by which someone wished to compete for a prize; the lie itself, if and insofar as by deception it takes away freedom of action, as if someone, deceived about the time, can no longer appeal from a sentence or vindicate a prescribed right.

3. But if attainment of a temporal good is forbidden by a moral precept, no right to it which could be violated can exist, although the mode can be unjust. Suppose someone has detained a prostitute by force: he will not have to restore anything to her for the lost gain of the infamous commerce.

— But the mode can be unjust both with respect to him who hoped for the good and with respect to him from whom the good was hoped. Suppose beggars who hoped for alms from pilgrims. By force brought upon them or upon the pilgrims they can be disturbed from their hope. In the former case, no condition of injustice and restitution is lacking: according to the proportion of the hope, restitution must be made to them. In the latter case, he alone who wished to confer the good has been affected by injustice. Wherefore restitution is owed directly to him alone; but to the one hoping it is not owed except so far as it is necessary that satisfaction be made to the former. Now, in the case brought forward, the pilgrims are not judged to have had an absolute and persevering will of giving alms to those poor persons, so that nothing is to be restored to them. On the contrary, a will of bequeathing a thing by testament is thought absolute and constant. Wherefore the execution of the legacy is owed to him who would have been legatee by him who by force or fraud, not by mere prayers, impeded the testator from writing the legacy in the testament. But if the legatee was unworthy to receive the legacy simply or from such a testator, he will not have been unjust who revealed the unworthiness, even occult, to the testator.

2. Is he injurious who did not prevent the damnose effects of his own non-blameworthy action, for example if you neglect to extinguish a fire which arose from your non-voluntary negligence?

Injury and the obligation of restitution are to be affirmed, if a proportionate inconvenience does not excuse the author of the damage. For commutative justice forbids that our action deprive another of his things, and therefore commands that we restrain the damnose efficacy of the same, as long as we morally can. Yet because the cause was not blameworthy, already a relatively grave inconvenience excuses: that is, one which, considered in relation to the imminent damage and the faculty of impeding it, is not to be held as slight.

Wherefore, if the evil which you clearly say about Peter is understood of Paul, that present effect of your past action must be corrected from justice. Thus Molina, Iust., t. 5, d. 40, n. 3; Lugo, Iust., d. 15, n. 6; Lessius, however, c. 11, n. 119, obligates from charity alone, because the cause of the confusion was not your speech but the error of others. This opinion is probable, if no occasion of erring was given by you. Yet, the involuntary error of the hearers being supposed, that damnose effect of your action seems to have to be impeded from justice, on account of the reason just made in this way. Therefore we think agreement must be given to Molina and Lugo.