Point III. On the Measure and Order by which Cooperators Are Held to Restitution

I. Measure of restitution. 1. Those who have cooperated in the same damage can be held to restitution in two ways: in solidum and pro rata, as they say. An obligation in solidum consists in this, that the cooperator is held to restore the whole damage; an obligation pro rata is had when someone is obligated only to the part which is commensurate with his influence. The obligation in solidum is distinguished as twofold: absolutely and conditionally solidary, according as someone is held to the restitution of the whole damage before all others, or only in default of the other cooperators. One who is held absolutely in solidum can demand no compensation from the cooperators; otherwise one who is held conditionally.

2. He is held in solidum who has so influenced the whole damage that the whole must be imputed to him; others are held only pro rata for their own part. Hence they are obligated in solidum:

a) He who alone was the principal cause of the damage, as a sole one commanding (St. Alphonsus, III, 579).

b) He who alone was the secondary cause of the damage, as a sole executor (St. Alphonsus, loc. cit.).

c) Those who were equal causes, whether principal or secondary, as follows. These are held in solidum:

α) Those whose cooperation was necessary, although not sufficient, for inflicting the damage; as if three carry away a chest which two could not have carried away (St. Alphonsus, loc. cit.).

β) Those whose conspiracy was necessary, so that, if one had not consented, the damage would not have been inflicted (St. Alphonsus, loc. cit.).

γ) Those whose cooperation was in fact sufficient, even if it was not necessary for inflicting the damage; as if two induced a thief to steal, and each proposed an efficacious motive; or two discharge a gun at the same person, and each inflicted a lethal wound (St. Alphonsus, loc. cit.).

δ) It is disputed concerning those whose cooperation indeed regarded the whole damage,¹ but was neither necessary nor sufficient.² But a sufficiently probable opinion teaches that they are held to restitution only pro rata, because in this hypothesis the whole damage seems to be ascribed rather to all together than to each separately (St. Alphonsus, loc. cit.).

Note. "It must be observed that although rough persons are held in solidum, it is rarely expedient to obligate them to the whole; since such persons are with difficulty persuaded that they are held to restoring the part taken by their companions. - Indeed, it can be presumed enough that the owners themselves to whom restitution is owed consent that they restore only the part taken by them; since otherwise there must be great fear that they will restore nothing, if they are obligated to the whole" (St. Alphonsus, III, loc. cit.).

¹ It is said: it regarded the whole damage; hence the case is not present if several, for example, carry away a heap of wheat, but each carries away his own part, and this without mutual influence or dependence.

² The case is present if someone, for example, proposed to another a motive for killing someone, which was not necessary, and yet by itself would not have sufficed to move the killer efficaciously; or if four carry away a chest which even two would have carried off.

II. Order of restitution. Those who cooperated in the same damage are held to restitution in this order:

1. Before all others the possessor is held, that is, he who has another's thing in itself or in equivalent. If he is no longer possessor, before all others he is held who consumed or destroyed another's thing in bad faith, unless he did this in the name of another (St. Alphonsus, III, 580).

2. Next the one commanding is held, if there was one, because he "is principal in the deed" (St. Thomas, II-II, q. 62, a. 7, ad 2; St. Alphonsus, loc. cit.). But to him is assimilated the one who by unjust means, for example by false doctrinal counsel, "was the cause why the damage was inflicted: for although then he is not the principal cause in strictness, nor does the executor act in his name but in his own, nevertheless by injustice he cast the executor into the obligation of restoring; therefore he is bound to preserve him unharmed, and accordingly must restore in the first place for him on whom he unjustly imposed such an obligation."¹

3. Then the executor is held (St. Thomas, loc. cit.; St. Alphonsus, loc. cit.). To him is equated one who was a participant in the unjust action and acted in his own name, for example one who with others cast a vote efficacious for passing an unjust sentence; because such persons are co-executors of unjust damage.

4. After the executor other positive cooperators are held; among these there is no order (St. Alphonsus, loc. cit.).

5. Finally negative cooperators are held (St. Alphonsus, loc. cit.). Even among them there is commonly no order. Nevertheless, sometimes an order seems to have to be admitted; thus, for example, particular guards, who are immediately bound to impede damages, seem to be obligated before general guards, who must watch that the particular guards duly fulfill their office.

Corollary I. Among cooperators there can be a twofold subordination: one as regards damaging, another as regards the mode of cooperating; and then there will also be a twofold order in the obligation of restoring. For example: Paul commands his son to counsel Peter not to impede damage which Peter by justice ought to impede. In the case all are non-impeding; but in the order toward restitution Peter precedes the rest; if he fails, Paul comes as the one commanding; finally the son as the one counseling.²

Corollary II. If a solidary debtor has repaired the whole damage, the less principal causes are held to nothing; but the more principal causes must refund the whole to the said debtor, and equal causes each their own part. For example, A, B, and C, equal solidary causes, owe Peter 30 florins. A restores the whole. In the case B and C must each refund 10 florins to him (St. Alphonsus, III, 581).

It is disputed whether, if some cause refuses to refund his part or cannot do so, another must partially supply the part not refunded. For example, in the case given, B refuses to return 10 florins. Must C refund 15 florins? Many deny, because the obligation in solidum exists only toward the creditor, not toward fellow debtors. But it seems this must be affirmed; for by the fact that B refuses to pay 10 florins, A and C are each held to return 15 florins to Peter, so that A, by returning 30 florins, returned 15 florins for C, and therefore can demand them from him.

To the argument of the adversaries I respond that the obligation in solidum exists directly indeed toward the creditor alone, but indirectly toward fellow debtors, if the latter have paid the creditor in place of another debtor.

Corollary III. If a solidary debtor has received condonation, all less principal causes are held to nothing; but more principal causes are in no way freed; nor, per se, are equal causes freed, although they are not held to restore the part condoned to the fellow debtor. I said per se, because sometimes the intention of the one condoning to free equal causes can be presumed (St. Alphonsus, loc. cit.).

Nevertheless, let it be seen what civil law establishes about condonation.

Corollary IV. One of the solidary co-debtors who doubts whether his companion has restored his part is more probably bound to restore the whole; because in doubt about payment, the right of the damaged person, as prior to payment, is of better condition (St. Alphonsus, III, 569; I, 34; n. 1020).

¹ Waffelaert, II, n. 399.

² Sweens, n. 361.