Scholion II. On Juridical Fault; Likewise on a Contract or Law Intervening

I. Juridical fault is present: 1° when someone posits an action harmful to another, either prohibited by law or not permitted by it; 2° when someone omits diligence owed by force of contract, law, or office. Furthermore, present laws, neglecting the distinction of the ancients between grave, light, and very slight juridical fault, commonly demand the care of a good father of a family; this nevertheless, with attention paid to the nature of the contract, extends more or less widely. Thus, for example, greater diligence is required in drivers, shipmasters, and administrators of railways.

II. He who with merely juridical fault inflicted damage is not held to restitution by force of natural law, as was proved in n. 995; nor is he held to it by force of positive law before the sentence of a judge; nevertheless he can be held by force of a special contract. It is said:

1. Nor is he held by force of positive law before the sentence of a judge. The reason is that the legislator in causes of this sort, which are commonly very uncertain, is not considered to obligate unless juridical fault has been proved. There is added that, apart from a judge's sentence, the quantity of damage to be repaired will be difficult to determine practically (St. Alphonsus, III, 554; I, 100). After the sentence of a judge there is an obligation,² and indeed, as it seems, of commutative justice. Namely, the legislator by force of high dominion can establish an obligation of repairing juridical fault. But that an obligation of commutative justice is imposed or had is sufficiently suggested by the very matter of the law, which is compensation to be imposed for damage inflicted; and the judge applies the law.

Corollary. He who has received damage from another's action, merely juridical fault having been posited, can safely use the concession of the law and invoke the sentence of a judge.

2. Nevertheless he can be held by force of a special contract, namely of answering even for merely juridical fault. For anyone can obligate himself to restoring damage which he inflicted with merely juridical fault, indeed which he inflicted without any fault.

Corollary. Those undertaking an office, for example advocates, physicians, etc., parish priests, confessors, etc., are not considered by the very fact that they undertake the office to have obligated themselves by tacit contract to restoring damages inflicted with merely juridical fault. Thus also the timorous think. For the rest, if the contrary opinion were admitted, very many would be deterred from undertaking offices (St. Alphonsus, III, 555).

¹ For the sake of practice we speak first about the measure, then about the order.

² If, however, the sentence of the judge rests on a false presumption of fact, per se the obligation is absent; nevertheless it will commonly be present per accidens on account of scandal to be avoided (St. Alphonsus, I, 100, at the end).