§ II. On Those who Merely Inflicted Damage

Preliminary note. Damage can be inflicted either with theological fault, or with juridical fault together with or without theological fault, or without any fault. Theological fault is had when someone commits a formal sin, and therefore is culpable before God. Juridical fault is the omission of diligence required by civil law, whether theological fault is added or is not added; in the former case there is juridical fault together with theological fault. But we inquire what things are required, apart from both contract and the sentence of a judge, in order that an act carry with it the obligation of restoring the damage that followed.

Now, in order that an action carry with it the obligation of restoring the damage that followed, it is required: 1° that it was the cause of the damage, and indeed, as is probable, of the damage which the agent willed to inflict; 2° that it was an unjust cause of the damage; 3° that it was theologically culpable.

I. The first condition is that the action was the cause of the damage, and indeed - as is probable - of the damage which the agent willed to inflict. It is said:

1. That the action was the cause of the damage, that is, either physical or moral. For an obligation of repairing damage which someone did not produce cannot be admitted (St. Alphonsus, III, 584). Now:

a) It certainly suffices - which is plain - that the action be a cause per se of the damage, or that the action by its nature be ordered to producing the damage.

b) A merely occasional cause of the damage does not suffice, that is, such a cause as does not itself inflict the damage, but, once it has been posited, another creates the damage; as if someone commits homicide, and that homicide, through an error of the judge to which the murderer gave no cause, is imputed to another. The reason is that in the case the action in truth cannot be called the cause of the damage (St. Alphonsus, III, 584, 635, 536). The same must be said for the same reason about an action which is only a condition without which the damage inflicted would not have occurred.

c) Nor does an accidental cause of the damage suffice, that is, such a cause as by its nature is not ordered to inflicting damage, but, some circumstances being posited, can produce it, as for example a theft which becomes for someone the cause of illness. The reason is that the burden of restoring the damage inflicted does not seem to arise in a case in which the damage must be attributed more to the circumstances of the action than to the action itself (St. Alphonsus, III, 632).

Nevertheless, both as regards an occasional cause and as regards an accidental cause, the case seems to have to be excepted in which the said causes assume the character of cooperation in inflicting damage; on this see the example set forth in n. 1073.

Question. Whether an occasional or accidental cause of damage suffices, if it is posited with the intention that the damage follow.

Response. Sufficiently probably this is denied, because restitution is owed only on account of damage created, with theological fault of course being posited, and consequently only on account of a cause or external act, since that is what creates the damage; hence if anything is lacking on the part of the external cause, the obligation of restitution does not seem to arise, with whatever intention at last the cause may be posited (cf. St. Alphonsus, III, 636). This, however, does not prevent the damage from being imputed to the one positing the cause in this sense: that on account of that damage he offends against charity.

Note. Sometimes it is difficult to determine whether an action is a cause per se or an accidental or occasional cause of damage. Especially there is dispute about example. Moreover, with St. Alphonsus we say that example per se is merely an occasion of damage; nevertheless, with attention paid to circumstances, it can be equivalent to counsel and therefore to a cause per se (II, 44, 4°; 45, at the end).

2. Sufficiently probably it is required that the action was the cause of the damage which the agent willed to inflict. Otherwise the damage actually inflicted was in no way willed, and therefore cannot be imputed to the agent. To this opinion adhere St. Alphonsus (III, 628, 629; Homo Apostolicus, tr. 10, nn. 84, 85); De Lugo;¹ La Croix;² Sporer;³ D'Annibale;⁴ Aertnys-Damen;⁵ Marc.⁶

Corollary. He who culpably inflicted damage on some person, for example Peter, while willing to harm another, not that person - as if someone set fire to the house of Paul his friend, thinking it to be the house of Peter his enemy - is sufficiently probably not bound to restitution. The reason is that the arsonist was not the cause of the damage which he willed to inflict, but of damage which he did not will to inflict.

Objection. The arsonist willed to harm some man; this suffices for inducing the obligation of restitution.

Response. He willed to harm some man, whoever he was: I deny; he willed to harm Peter, who is some man, but not Paul: I concede. But in fact he harmed Paul. Therefore the damage in fact inflicted was not willed; and this is sufficiently probably required in order that the obligation of restoring arise.

¹ Disp. 18, n. 86.

² Theologia moralis, l. 3, p. 2, n. 200.

³ Theologia moralis super Decalogo, tr. 4, c. 2, n. 139.

⁴ Summula Theologiae Moralis, p. 2, l. 3, nn. 100 and 232.

⁵ Theologia moralis, I, n. 767, q. 2°.

⁶ Institutiones morales S. Alphonsi, I, n. 950, q. 4°.

II. The second condition is that the action be an unjust cause of the damage. Thus it is not enough that someone causing damage act illicitly or against charity, but it is required that by justice he be bound not to cause the damage. This condition is lacking, for example, in him who, with the things to be observed having been observed, kills an unjust aggressor, and this indeed even if, by killing him, with attention paid to the circumstances, he sinned against charity.

Question 1. Whether he acts unjustly and is bound to restitution who, after a cause of damage has been inculpably posited - for example, after another's house has been burned without fault - does not prevent the damage.

Response. Affirmatively; for just as justice prohibits me from positing a harmful action, so also it must command that I take precautions against the damage that will follow from an action already posited. Make exception if someone cannot prevent the damage without his own damage greater than, equal to, or grave relative to the damage of his neighbor (St. Alphonsus, III, 564, 994; VI, 621).

Question 2. Whether he acts unjustly, and is bound to restitution, who destroys or consumes a thing, for example foodstuffs, that certainly would perish while with the owner, for example in a fire.

Response 1. If he destroys or consumes a thing already placed in danger, he does not act unjustly, because in that case the thing is considered of no value to the owner himself (St. Alphonsus, III, 620). But the resolution holds even if the one thus acting spared his own goods, since the owner suffered no damage. Nevertheless, the case will not easily occur in such a way that nothing is to be restored; because, says De Lugo,¹ "if someone could, if he wished, snatch the thing away, then the thing itself was not inevitably going to perish; therefore he ought in justice to pay something, namely as much as could be found and offered for the thing placed in that danger."

Response 2. If he destroys or consumes a thing soon to be placed in danger, a distinction must be made. The obligation of restitution is absent if the danger was certainly and commonly foreseen, because then by common estimation the thing was of no value to the owner. It must be said otherwise "if at the time the damage was given there was no knowledge of the destruction or future danger. The reason is that, since that danger was unknown, that thing was truly worth as much among men as if it had not later been going to perish."

Response 3. If someone destroys or consumes a thing rescued from danger, for example from a fire, he is bound to restitution, because a thing withdrawn from danger cries out for its owner. And, for the reason given, this holds, others denying it, even if the thing is immediately consumed. For the rest note that charity alone obliges someone to rescue another's thing from danger.

¹ Disp. 18, n. 146.

III. The third condition is that the action be theologically culpable, that is, a formal sin. The reason is that an act posited without sin, and therefore subjectively licitly, cannot carry with it the burden of repairing harmful effects that followed from it. There is added that the obligation of restoring has in some way the character of a penalty. But the obligation of a penalty is not contracted per se, or by the force of the act admitted alone, without sin (St. Alphonsus, III, 550). Thus of itself merely juridical fault does not suffice; this nevertheless does not prevent someone, when merely juridical fault has been admitted, from being able to be held to restitution by force of a judge's sentence or of a contract (n. 1009).

Moreover, sufficiently probably a formal sin against justice is required, because otherwise formal injury is not had. But the fact that someone did not know that injustice carries with it the obligation of restoring does not prevent the obligation from arising. For this arises from the very nature of justice culpably violated.

Finally, much more probably a perfectly voluntary act is required, so that a semi-deliberate act, whether there is question of light or grave matter, does not suffice. Only a perfectly voluntary act, or one plainly imputable, can induce the obligation of repairing effects that followed from the act; just as only a perfectly voluntary contract and only a perfectly voluntary vow can beget obligation. But a semi-deliberate act must be imputed to misfortune equally or rather than to the agent (St. Alphonsus, III, 552). "Whence it follows that he is free from every restitution who, inflamed by sudden anger, kills a man; a boy who from levity and imprudence causes a fire, etc. Yet authors warn that, unless it is certain, such venial fault from imperfection of the act is rarely to be presumed in grave damaging, and therefore confessors ordinarily ought to induce the penitent to some composition with the injured party, insofar as this can conveniently be done; which is altogether most advisable."¹

Question 1. To what extent is he bound to restore who with light fault, perfectly deliberate, inflicted grave damage. The case occurs if someone inflicts damage grave in itself, but from an erroneous conscience thinks that for grave sin a graver matter is required, or that one who inflicts grave damage sins only lightly.

Response. Others thinking otherwise, sufficiently probably no obligation arises, because light fault probably cannot carry with it the obligation of undergoing a grave burden, of which sort is - at least if there is question of goods of fortune - the burden of restoring grave damage. There is added that a grave obligation does not correspond to light fault, while a light obligation is not proportioned to the matter or grave damage. All these things considered, sufficiently probably every obligation is denied.

Question 2. To what extent is he bound to restore who through several venial faults deliberately committed finally inflicted grave damage.

Response 1. If someone inflicted those small damages on different owners, the individual damages are to be restored only under light obligation, because to light faults there does not correspond a grave obligation.

Response 2. If the damages were inflicted on the same person, most think that there is a grave obligation at least of restoring so much that grave matter no longer remains. But sufficiently probably, just as in the former case, there is only a multiple obligation under light obligation, because, as was said, to light faults there does not correspond a grave obligation.

Question 3. Whether he is bound to restore who culpably posited a cause of damage, but before the damage followed retracted the wicked will.

Response. Affirmatively, unless together with the wicked will he also removed the influence of the cause posited on the damage. The reason is that the retraction of the will does not prevent the damage from following from the cause posited. The reason for the exception is that then the damage arises from elsewhere. Hence he who has thrown fire into another's crop is bound to restitution, even if afterward, grieving, he tried to extinguish the fire (St. Alphonsus, III, 559; VII, 40).

Corollary. He who was invincibly mistaken about the quantity of the damage, for example about the value of a thing which he destroyed or consumed, is bound to restore only according to the value which he apprehended. The reason is that "that damage is not judged willed which is not known; therefore as regards that excess the will of damaging is lacking" (St. Alphonsus, III, 613). It suffices, however, that someone apprehended the excess confusedly.

¹ Sporer, n. 213 sq.; Sweens, n. 306.