Article II: On Real Injury

I. What Injuries Are To Be Considered. An injury inflicted upon goods can be more damnifying or lucratively injurious; it can be committed secretly or with force applied; the thing which is the object of the injury can be sacred or profane. Hence various characters of injury are to be distinguished juridically, for example as regards reserved cases, which nevertheless, as injuries, are of the same moral species.

It is manifest that personal injuries (as in robbery), reasons of sacrilege, or scandal can accede.

Juridically, theft is the hidden taking away of another's thing, while the owner is reasonably unwilling. Hidden, i. e. without force; of another's thing: taken away at least according to law; unwilling: as regards the substance; reasonably, i. e. with all circumstances weighed, the owner or the one having the right being unwilling.

He does not steal who, in extreme necessity, for himself or for another takes as much as is necessary; or, in quasi-extreme necessity, as much as the other would have to give from charity; or in grave necessity, he who, after a fruitless petition, has taken some modest thing.

Nor does he steal who, using hidden compensation, without the debtor knowing, takes away another's thing, but one owed to himself. The debt must be of commutative justice, sufficiently certain that it would be assigned to the creditor by a judge. There is need of moderate difficulty in obtaining the thing otherwise, lest the invasion of another's thing be condemnable as a light injury; and care must be taken that the compensation not be damaging to the debtor.

Charity moreover commands that the damage be avoided which another, for example a servant who would be accused of theft, would suffer.

II. Gravity. Theft by its genus is grave, as contrary to charity among men. Yet light matter brings it about that the injury is indicated as morally imperfect. Therefore that the injury be light, it is necessary that at the same time: a) it bring no grave privation to the injured owner. Matter is estimated as relatively grave which deprives someone of a seventh part of weekly income, in such a way, however, that for him who has no family to support, the quantity can be doubled. But matter modest in the aspect of theft can, as damnifying, become grave, as if it takes away a necessary instrument of work; - b) nor is the thing taken away in itself, i. e. in such a defined society, of universally notable utility; - c) nor is the injury apt to have a grave repercussion upon common security. By the two latter considerations absolutely grave matter is defined. Before the war, by a perhaps more benign opinion, this was estimated at one hundred lire or coins of similar common use (100 marks, pesetas, shillings, l., dollars, florins). Although now, in regions where paper money alone is already used, this is rather distant from the metallic money to which before the war it was equivalent, nevertheless the third consideration seems to prohibit us from estimating the grave quantity according to the value of gold money. Wherefore we would not think that the absolutely grave quantity can be increased beyond double or triple, even if the prices of most things are more than tripled, and we judge that it must be estimated at about 100 lire, not however reprehending those who think that it should be increased, for example, by half.

Consideration of absolutely grave matter comes into use when there is question of physical or moral persons whose daily income is represented by an absolutely grave quantity, or by half of that sum, where there is no burden of family.

A more benign estimation of matter is permitted: a) on account of personal or real considerations which render the injured person less unwilling; b) on account of the mode of injustice, which, creating difficulty, would lessen the danger of many abuses. Thus, on account of the former considerations, a greater quantity is required in exposed things, in things which the owner wholly neglects, and in thefts of connected persons. Wherefore they admit that for a wife and children of the family the customary matter can be increased at least double, but for a religious, if there is question of the things of the monastery, at least by half. Poor persons who, for their own uses, gather wood in forests, sin more lightly, provided they do not harm the forests; domestic servants also sin more lightly, not as regards money enclosed in a chest, but in other things in which the reason of frailty in part excuses the delict. On account of the other consideration, a greater quantity is required in small thefts which coalesce. Then, according to the cases, they permit that the matter be increased by half, or double, or that absolutely grave matter alone be considered.

III. Coalescence of Small Thefts. Moreover small thefts and modest damnifications coalesce: a) on account of the unity of the injured subject, unless, with the smallness of the thing or the interval (15, 30, 60 days) considered, the former things have almost fallen from memory when the delict is repeated. Rather slight small thefts in consumable foods almost do not coalesce; - b) on account of the moral unity of the action, even if the things pertain to several. Yet it is not established that mere damnifications done to several coalesce; - c) on account of the unity of intention of him who intends to steal a great value through several minute things; - d) on account of the unity of collection, if a great quantity is morally preserved; - e) on account of the unity of conspiracy of several.

Moreover grave sin is committed from the beginning, if the intention of stealing or damnifying gravely was then had; otherwise, when the guilty person notices that grave matter is being completed and does not conceive the proposal of restoring. He who, after grave matter has been completed, steals some light thing, either continues the same sin, or commits a new light one, according to the distinction or unity of the acts.

If a pious work is injured, relatively grave matter will have to be estimated from the detriment of the end.

IV. Restitution on Account of Real Injustice, at Least Material Injustice. 1. What possessors of another's thing must restore.

Principle. Unless they are excused by the privilege of a just law, possessors, as such, must satisfy real rights and execute the promises of agreements. If they have been formally unjust, they must repair damaging injuries. Hence:

a) A possessor in good faith can use the privileges of positive law; unless he has acquired the thing by usucapion, he must restore it in the state in which it is found, when another's right has been established. If he has usefully consumed the thing for himself, he will have to restore the utility received from the thing itself, at least so that the owner recover the value which the thing had when it was consumed. - Say the same about fruits received from the thing; yet often, from positive law, a possessor in good faith can make these his own by perception. - If you attend to opinions, he is compelled to repair no damages. If he sold the thing, since as seller he will have to provide eviction to the buyer; as possessor of the price, he is at least to be persuaded to restore to the owner deprived of his thing the price existing with him.

b) A possessor in bad faith is responsible for a fortuitous event, unless the thing would have perished by the same identical disaster, or at least at the same time, in the owner's possession; - he cannot use the privileges of positive law, except prescription which, independently of good faith, has a public cause; - he must restore the thing with all non-industrial increases; - concerning the thing consumed or alienated, he must make the owner indemnified; - indeed he must restore the value which the thing had when it was consumed; - he must repair all damages foreseen at least in a confused way; - he must provide eviction to the seller [source reads venditori; the legal context seems to require "buyer"].

Observe nevertheless that fruits of consumable things are not properly such.

Since many things often are not established, let the value of the thing be restored as it was when consumed, with compensation of use added, and, if the thing was consumable, with modest interest.

If several have successively possessed the thing: he who has it or destroyed it owes the thing first; the robber succeeds; each one first owes the fruits which he has received; each one owes damages (in solidum or separately) with which he has cooperated.

Necessary or economically useful expenses can be deducted from the quantity to be restored.

c) A possessor in doubtful faith must investigate the truth from justice with that care which agrees with the importance of the thing, the degree of doubt, and the hope of success.

Once inquiry has been made, he must satisfy the certain right of others, according to the rules of a possessor in good or bad faith, according to the case. If the certain right of no one appears, while the doubt remains, he need restore nothing; and if he himself, or his author, began to possess in good faith, he will be able to acquire the thing by usucapion according to the path of positive law. - But he who by his negligence has been the cause why the thing cannot be restored to the owner, which he can occupy only as belonging to no one, will have to destine it to common utility.

He who, doubting concerning his own right, has deprived a possessor who is not in bad faith of his possession, must be charged with certain injustice. And in doubt we are prohibited from making the condition of him who has the right worse. Nor are real fruits or connected gains acquired by a possessor in doubtful faith.

2. What damnifiers must restore. An unjust damnifier must restore as much as the damage which from his action has been unjustly inflicted.

Except damage not foreseen or, at least from presumption, condoned.

Wherefore, if merely a right to a thing or to hope has been injured, the quantity to be restored must be estimated from the value of the hope; in the absence of a better computation, let it be estimated at half the thing.

Fruits are to be restored, with expenses deducted. Yet it will be enough to restore a thing of modest value and for which another is easily substituted.

On account of presumed condonation, a modest alms extorted by fraud is not to be restored. Great liberality must be restored at least to true poor persons.