Point II. On Negative Cooperators

I. Negative cooperators are: 1° the silent one; 2° the one not opposing; 3° the one not manifesting. The silent one is said to be he who by speaking or warning does not prevent damage to be inflicted. The one not opposing is he who does not impede the damage that is being inflicted or omits to procure restitution to be made. The one not manifesting is he who does not denounce damage that has been inflicted (St. Thomas, II-II, q. 62, a. 1; St. Alphonsus, III, 573).

II. The requisites in order that negative cooperators be held to restore are:

1. That they ought by strictly so-called justice to have prevented the damage. Now an obligation of strictly so-called justice arises from a contract, whether express or tacit.

By express contract there are bound, for example, keepers of woods, of hunts, administrators of the goods of an institute, etc.

A tacit contract is contained in the acceptance of an imposed office which, by reason of the remuneration annexed to it, is also considered a benefit; but not in the acceptance of an office which lacks the character of a benefit, as the office of parents or of the Superior of a religious house (St. Alphonsus, III, 360, but doubt 1°). By contract, at least tacit, there are bound, for example, officials of the police, who must provide for the safety of citizens, customs guards, etc., as will be explained more below.

2. That they could have prevented the damage without grave inconvenience. I said without grave inconvenience, because commonly contracts are not entered into with a greater burden, nor do offices carry a greater burden with them.

3. That with theological fault they did not impede the damage, according to what was said in n. 995 (St. Alphonsus, III, 573; cf. St. Thomas, II-II, q. 62, a. 7).

Corollary I. By force of natural law, owners, likewise parents or tutors, are bound to restore damages inflicted by their things which cannot govern themselves - for example by animals, by children lacking the use of reason - on account of culpable negligence; namely, by justice they are bound with moral diligence to prevent the said things from harming others.

Corollary II. By force of civil law, even if theological fault is lacking and merely juridical fault is had, commonly these are bound: 1° parents or tutors for damage inflicted by minor children living in the same household; 2° teachers and craftsmen for harm done by pupils or servants during the time in which they are under their custody; 3° masters for damage inflicted by animals, etc. Nevertheless, the law does not bind except after the sentence of a judge (n. 1009).

Corollary III. Guards of taxes who connive with those defrauding are bound to restore the value of the taxes to be paid. It is disputed whether they must also restore the fine which those defrauding, if denounced, would have had to pay. Now with St. Alphonsus (IV, 237) and others we deny, because a fine has the character of a penalty; but a penalty, of course after the sentence of a judge, is to be borne by the delinquent, not by another.

Objection. He who unjustly impedes another from obtaining a good is bound to restitution. But guards, by not denouncing those defrauding taxes, act unjustly, and therefore unjustly impede the treasury from obtaining a good, in the case from receiving a fine.

Response. He who unjustly impedes another from obtaining a good is bound to restitution if that good has the character of a penalty: I deny, because the penalty is to be borne by the delinquent himself, condemnation having been posited.

Keepers of woods, of hunts, etc., are bound to restore the damages that followed for the owner from their omission (St. Alphonsus, III, 573). "Nevertheless, the damage must be of great moment, and the owner rationally unwilling. Hence the keeper will not be bound to restore if he permits a poor person to take something away; or if the one defrauding were of such condition that he prudently presumed the owner, if he knew, would give him the faculty or would afterward ratify it; or finally, if by custom or by the patience of the Government knowing and dissimulating, it had been received that they should perform the office not so severely and with so great a burden."¹

Corollary IV. Deputies who, by not casting a vote, are the cause that an unjust law is adopted are bound to restore damages that will follow from it for citizens; not so electors who, by neglecting to elect, are the cause why an unjust deputy is elected. The reason for the former is that deputies are bound to cast a vote from an office to which remuneration is annexed. The latter must be admitted for the contrary reason.

Corollary V. Servants who culpably did not prevent damage to the master are bound to restore if there is question of a thing specially committed to them. If there is discussion of other things, they are not bound to restore damages inflicted by fellow servants, because to prevent hatreds, the prevention of damages of this sort is not considered included in the contract (St. Alphonsus, III, 344). As regards damages inflicted by outsiders, there is dispute. Some affirm, because by the very fact that they are taken into the household, they are considered to have undertaken that burden. But that is today called into doubt in law, because servants are no longer accustomed to obligate themselves beyond the limits of the works assigned. Nevertheless, attention should be paid to circumstances, which sometimes are such that the aforesaid burden is considered to have been undertaken; this can easily happen, for example, if a servant is hired by a widow.

Corollary VI. A confessor who - even culpably - merely omits to warn a penitent about restitution to be made is not held by the obligation of restitution, neither with respect to the injured person, nor with respect to the penitent who perhaps suffers damage from the omitted warning. The reason is that the confessor is not bound by justice to warn the penitent. It must be said otherwise, however, if the confessor expressly or equivalently - for example if, when questioned, he is silent or dissimulates, although the reason for being silent or dissimulating is lacking - exempts the penitent from restitution (St. Alphonsus, VI, 621).

Corollary VII. A witness, even though legitimately interrogated, who does not manifest what he knows is not bound to restore, because he is not bound by justice to open the truth. The same must be said of a witness who falsely says or swears that he knows nothing, because, although he thus says or swears, nevertheless he did not by an unjust means impede someone from obtaining a good; since even in the case he impeded someone from acquiring a good not precisely by that lie or perjury, but by opening nothing, which is not unjust (St. Alphonsus, IV, 270).

¹ Aertnys-Damen, II, n. 786.