Co-operation by counsel and command

THE question of restitution is complicated and beset with special difficulties when there are more agents of injustice working together than one. There will, indeed, be the same roots of restitution which we treated of above, but difficulties arise as to who among the co-operators is bound to make restitution, and who is primarily bound. One may help another, or co-operate with another, in inflicting an injury in various ways. Nine ways are commonly enumerated: by counsel, by command, by consent, by provocation, by praise or flattery, by being partner in the sin, by silence, by concealment, by defending the ill done. In the first six of these ways the co-operation is positive, in the last three it is negative, Something must be said about each (cf. Can. 2209).

One co-operates with another in injustice by counsel when, by giving advice or by urging motives, or by showing how it may be done, he causes that other to commit an act of injustice. Such a one is obviously the moral cause of the injury, and all the conditions required for imposing an obligation of making restitution are present. If the principal agent was already determined to commit the injury, this will in that case not be due to the counsellor, and he will not be bound to repair it. Nor will the counsellor be bound to make reparation to the principal agent for any loss which the latter suffered in consequence of inflicting the injury, unless he induced him to act by fraud or other unjust means. Moreover, if before the injustice was committed the counsellor efficaciously withdrew his advice, and proposed equally strong motives for desisting from the act, it would seem that he cannot be obliged to make restitution. If, however, he had showed the other how to commit the crime and thus made it possible, he must take means to prevent it being committed, otherwise he will be responsible. Confessors, lawyers, doctors, and others whose expert advice is asked are under a special obligation not to give advice which is injurious to their clients or to third parties. If they do this, they will be bound to make compensation to the injured party not only when they acted maliciously, but also when they gave injurious advice through gravely culpable ignorance or precipitancy. Others who do not specially hold themselves out as experts will not be bound to compensate those who ask their advice and suffer loss through following it. No injury was done by giving them what they asked for, no fraud was committed by the assumption of skill or knowledge which was not possessed; if they chose to follow the advice, they took the risk on themselves, and scienti et volenti non fit injuria.

He who follows unjust advice acts in his own behalf and in his own name, and so is the principal cause of the injury done. He is bound in the first place to make restitution, and if he fail to do so, the counsellor is bound.

We co-operate in injustice by command when by whatever means we induce another to do an injury in our name and on our behalf. It does not matter whether one of the parties is in a position of superiority with respect to the other or not, nor by what means he induces the other to perform the injurious action, whether by threats, or promises, or commands, or requests; it is sufficient if by any means he induces the other to do his unjust will. Henry II made himself guilty of the blood of St Thomas a Becket by complaining that none who ate his bread would avenge the insults offered him. Mere approval, however, of injustice which has already been done does not render him who approves liable to make restitution.

One who by command induces another to commit an injury is bound in the first place to make reparation for the injury — and for all the damage which was the necessary consequence. In his default the instrument of his injustice is bound to make restitution. The one who gave the command is not bound to compensate his agent for loss or damage which he suffers in executing the will of his principal, unless compulsion or other unjust means were used to procure his co-operation. Nor is he bound to make restitution for damage which his agent did in excess of the instructions given, Furthermore, if before the command is executed he recalls it and the recall is notified to the agent, he will not be responsible for what the agent may do on his own authority; he will be responsible, however, if by any chance the intimation that the command is recalled does not reach the agent.

What of the one ordering and of the one commanding? - One ordering is he who by his own authority compels another to execute something; but one commanding is he who, by free agreement, commits to another something to be executed, and thus, or with a wage promised, induces him to act, so that he may inflict damage on another in his name. - The one ordering or commanding is bound to repair every damage ordered and inflicted by force of the order or mandate; but otherwise if he only approves damage done in his name. The reason is that in the former case he efficaciously influences the damage. But as regards the latter case, mere approval of a deed pertains nothing to the reason of mandate; and therefore he who merely approves something already done neither ought nor can be called one commanding. L. 558; St. Thomas, 2. 2, q. 62, a. 7; E. M.

Whether one commanding is bound to restitution if he revoked the mandate before the damage was inflicted? Resp. Negatively, if the revocation becomes known to the mandatary before execution of the mandate; but otherwise if it in no way or too late becomes known, because in the former case the mandate vanishes and does not influence the damage; in the latter it does not vanish and does influence. L. 558.

Whether one commanding is held concerning damages which come to the mandatary in the execution of the mandate? La-Croix with others affirms, because one commanding, by ordering damage, is judged to take upon himself the obligation of preserving the mandatary unharmed. But it seems that this must be restricted to the case in which the one commanding coerced another by fraud, deceit, force, or fear, unless the damage is altogether fortuitous, having no connection with the commanded act. Otherwise the mandatary seems voluntarily to have taken upon himself the whole burden and its consequences; and unless a pact about indemnity preceded, the one commanding will be held not from justice, but only from a certain equity. But not even from equity, if knowingly and willingly he accepted that dangerous mandate. - Gousset 950.

Whether one commanding is bound to repair damage which the executor from invincible error inflicted on another? - Resp. Negatively, because the true cause of the damage is the error of the mandatary. Nevertheless, it must be excepted if perhaps it was too difficult to avoid the error. For although all agree that the one commanding is not held concerning damages which the mandatary inflicted beyond the mandate, yet they limit this if it was in the power of the mandatary to preserve the limits of the mandate. Therefore, also in the case if it was not morally possible to avoid the error, the error must be imputed to the one commanding. C. B. 278.

Whether a superior, ratifying damage, is to be compared to one commanding? Resp. Negatively, if the ratification follows the execution of the damage, because then it cannot influence the damage. But otherwise if it precedes the damage, or regards the proposed infliction of damage and truly influences it. L. 558.

What of one counseling? One counseling sins against justice whenever knowingly and willingly he furnishes an iniquitous counsel by which another is efficaciously induced to inflict damage unjustly, because the damage is imputable also to him. This is also established from proposition 39 condemned by Innocent XI. Hence one counseling who in good faith gave damaging counsel, once the truth is known, is bound to retract it, and indeed from justice. But one counseling is not bound to restitution if the executor was already determined of himself to damaging, so that even without that counsel he would have inflicted the damage; because then the counsel did not efficaciously influence the damage. But it is otherwise if the executor was also efficaciously moved by that counsel, because then it is truly an efficacious con-cause of the damage. L. 561, 562; St. Thomas, 2. 2, q. 12, a. 2, ad 4; a. 7; Gousset 952; C. A. 1300, 1315; E. M.

Whether one counseling is bound to restitution who revokes his counsel before the execution of the damage? Resp. Negatively, if the counsel was naked, that is, simple, because by revocation the whole force of the counsel is removed.

If the counsel was clothed, or supported by motives, there is controversy. Probably also negatively, provided other motives were employed in the retraction, at least equally efficacious, because then the damage is only from the malice of the other, and the counsel is the occasion of the damage but not the cause. Thus Azor, etc., against others whose opinion St. Lig. says is more probable. Except if to a thief determined to inflict damage you showed the way of entering the house which otherwise he would not have found, or something similar; because your cooperation then was truly efficacious, especially if you foresaw that the thief would not change his depraved plan, unless nevertheless you warned him to whom the damage threatens, to which in the case you are bound, as the doctors cited by St. Alphonsus, 559, judge, if without equal or greater damage you can warn the one to be damaged about the impending damage. L. 564; Gousset 955.

Whether one counseling a lesser evil to avert a greater is bound to restitution? Resp. Negatively, if the matter concerns the same person, because the counsel favors him, far from harming him; but otherwise according to many, if the matter concerns another person of whom the damager was not thinking, because this person is deservedly judged reasonably unwilling. L. 565, 577. Yet others hold the contrary, led by the reason that this is not to induce to a lesser evil, but to remove from a greater. Vasquez, Op. de Scand., art. 1, dub. 2, n. 14; Turrianus, de Fide, Spe, etc., disp. 95, dub. 6.

What if another is already determined to damage, e.g., to killing, and you persuade only the mode, namely that he kill by poison, not by sword; in that place, not in another, or at that time? "There is a twofold probable opinion. The first says that you are bound to restitution, because by persuading the mode you concur to the substance of the damage; but by persuading that the damage be inflicted sooner, you are the cause of the whole damage, since the other could have changed his mind during that time.... The second opinion absolutely excuses from restitution, provided it is certain that the other would not have changed his depraved mind.... The reason is that the one counseling then is not an efficacious cause of evil as to the substance of the damage; and this is more probable to me.... And thus likewise they most probably excuse from restitution him who materially cooperates in damage to the owner, namely when the other would still certainly have inflicted the damage without his cooperation, e.g., if someone holds a ladder for him who would climb even without help." L. 563, 576.

Whether one persuading damage from ignorance, but with grave fault, is bound to restitution? - If he gives counsel from his state or office, e.g., of advocate or confessor, he is bound, because then he is truly the unjust and efficacious cause of the damage. If he is not such a person, he is not held toward the one asking counsel, unless deceit is present, or he affects great expertise which he does not have; for that one ought to impute it to himself if he is deceived, since he asks counsel from an unskilled man. But he is held toward a third person if he foresees that damage will follow to him; for one inducing another into an error harmful to him is the unjust and efficacious cause of the damage. - But one giving inculpably a counsel harmful to another is afterward bound, when he adverts to the matter, from justice to do as much as he can, yet without great inconvenience, lest damage occur. L. 564; Gousset 954; C. A. 1299, 1300, 1315.

Whether one knowingly counseling evil to another is held also concerning damages which the latter suffered by executing the depraved counsel? - Resp. Negatively, of itself. The reason is that he inflicted no injury on him, since no injury is done to one knowing and willing. Yet it is otherwise if the one counseling so circumvented the executor by frauds or sophisms that the latter did not advert to the iniquity of the counsel. Cf. n. 1398.

Whether one counseling is held primarily, or only secondarily, to restitution? - Of himself, he is held only secondarily, because the executor is the principal agent, as one who is judged, speaking of himself, to act in his own name and for his own utility. L. 560.

101. Notions. Strictly speaking, command is not the same as mandate, because command supposes authority, which induces someone to act, while mandate from free agreement commits to another an action to be exercised.³⁷ A father commands his son to do something; but a friend mandates some work to a friend. Mandate or command can be done either expressly, as if a father says to his son: do this; or virtually, as if a master signifies to his subjects that it would be pleasing to him if they did such a theft, or if he complains that no one avenges an injury inflicted upon him. In this way the killing of St. Thomas of Canterbury was imputed to Henry II, king of England.

In the present matter we take command and mandate promiscuously. The mandator or commander is the principal cause; but the mandatary or executor is the secondary or instrumental cause. Therefore damages following from an unjust action are also imputed principally to the mandator or commander.

Principle. He who efficaciously and formally commands or mandates a work injuring commutative justice is bound to restitution toward the person damaged, and sometimes also toward the mandatary.

The truth of this principle is plain both from what was said above concerning unjust damaging and from proposition 39 condemned by Innocent XI: "He who moves or induces another to inflict grave damage upon a third party is not bound to restitution of that damage inflicted."³⁸

a) Obligations of the mandator toward the person damaged. The commander or mandator is bound to repair for the person damaged all damages which were caused by force of the mandate and were foreseen. The reason is that, according to the common adage, "what someone did through another, he himself is deemed to have done." But I have said that the commander or mandator is bound to repair damages foreseen and truly caused by force of the mandate. For if the mandatary exceeded the limits of the mandate, or if damages wholly unexpected occurred, then the commander or mandator is not obligated concerning those, since all those things are not voluntary to him and therefore are not to be imputed. Hence he who hired another to strike a third person is bound to repair the damage inflicted upon that third person. But if, beyond the mandate, that other not only struck the third person but killed him, the mandator is not bound to repair the damage arisen from the homicide.

When the mandator revokes his mandate and makes this known to the mandatary before execution of the mandate, then he is now held to nothing, even if the mandatary from his own malice inflicts damage; but if the revocation either did not become known to the mandatary or was made after execution of the mandate, the obligation of the mandator remains unchanged. But if a third person knowingly impeded this notification of the revoked mandate, that person and not the mandator is bound to restitution.

b) Obligations of the mandator toward the mandatary or executor. The mandator ought also to repair for the mandatary damages perhaps had in the execution of the mandate, if by force, fraud, or even abuse of his authority he coerced the mandatary, and foresaw this damage at least confusedly. Otherwise, however, he is held to nothing. The reason is that in the first case the mandator formally and efficaciously damaged the mandatary; but in the second case the mandatary acted as if of his own accord and therefore ought to bear the consequences of his action. Hence a master who by grave and unjust fear induced a maidservant to pronounce a damaging perjury is bound to repair all damages which the maidservant will suffer from the perjury committed. But if the maidservant indeed perjured herself at the mandate of the master, but wholly freely, she herself and not the master is bound to bear the probably foreseen consequences of the perjury. Nevertheless, even in this case it is very fitting that the mandator take upon himself at least part of the damage.

Note. Ratification, taken in the strict sense for approval of an unjust action already done by another, is not equivalent to mandate or command; wherefore if someone ratifies damage which another perpetrated for his favor, but without his mandate, he indeed sins, but is not bound to restitution, because he is not the efficacious cause of the damage. Rule 10 of law in the Sixth: "There is no doubt that ratification is drawn back and compared to mandate," does not hold in this matter, but only in contracts and in certain canonical penalties.

³⁷ In the German language iussio is Befehl; mandate, however, Auftrag.

³⁸ Denz. n. 1189.

102. The one counseling damaging is he who by his persuasion morally moves another to inflict damage upon a third person.³⁹ The one counseling agrees with the mandator in this, that each impels another to do damage; but he differs in this, that the one counseling ordinarily is the secondary cause of the damage, while the mandator is the primary cause. For the executor of counsel ordinarily acts in his own name, while the executor of mandate acts in the name of another. From this it follows that the executor of counsel is primarily, but the one counseling only secondarily, bound to reparation of the damage inflicted.

Counsel can be given in diverse ways, but chiefly it is twofold: doctrinal and impulsive. Doctrinal counsel either convinces the reason that the action is licit or, all circumstances having been weighed, is to be done; or it instructs concerning suitable means for completing the action. Such doctrinal counsel, and false counsel at that, would be provided, e.g., by a confessor who persuaded a penitent that the procuring of abortion is licit and to be done. But impulsive counsel rather influences the will by exhortation, prayers, promises, etc. Impulsive counsel is called naked if it does not rest on intellectual motives; but it is called clothed if, together with persuasion, convincing motives or other means of acting also are supplied.

For judging the obligation of restitution arisen from counsel, nothing else is required except the application of the principle brought forward above, namely: counsel then obliges to reparation of the damage following, if it was truly, efficaciously, and formally against commutative justice.

³⁹ If someone by wicked counsel harms only the one himself who seeks counsel, he is not a cooperative damager, but a solitary one. Such counsel is not treated here, since what was already said above, n. 93, must be applied to it.

103. Corollaries. a) The efficacy of counsel. Counsel is not judged efficaciously damaging when it is given to him who is already altogether determined to inflict damage and is not moved by the counsel to perpetrate a greater evil. But if someone unjustly has persuaded not the substance itself of the damaging action, but the mode, time, or other circumstances, one must see whether this counsel efficaciously inflicted some damage.⁴⁰ If so, the obligation of repairing that damage is present; otherwise not. In practice it is often doubtful whether the counsel given truly efficaciously produced the damage perpetrated. This holds especially if plebeian women and others generally, whose insufficiency is known, have given harmful counsel. Therefore the grave obligation of repairing damage which the one taking counsel inflicted upon a third person is present rather rarely. Especially it is very doubtful whether he who by his example alone moves another to unjust damaging is bound to restitution. Valentia, Sanchez, Laymann, the Salmanticenses,⁴¹ and Concina⁴² deny, because a wicked example is indeed the occasion, but not the cause, of damage; Billuart⁴³ and others affirm; but in the particular case one must see whether the example or scandal given truly and efficaciously flowed into the action of another. If so, the obligation of reparation is present; otherwise not. For the most part the influence of a bad example is doubtful, and therefore there is no obligation of reparation. Thus at least, if exhortatory words are not joined to the wicked example.

b) Is it lawful to persuade a lesser evil to him who is already prepared for a greater evil? Leaving aside the question concerning the morality of that counsel in other matters (concerning which see above I, n. 611, on the morality of human acts), in the present place we speak only of counsel of a lesser evil in the matter of commutative justice. But we answer with a distinction:

α) He who persuades a lesser evil to be inflicted upon the same person does not sin, nor is he bound to reparation of damage. Hence Reuben, persuading his brothers not to kill Joseph, but rather to cast him into the cistern, did not sin; he who persuades a robber prepared to kill a man not to kill, but only to take away his money, does not sin. Yet he who gives such counsel with a wicked spirit (for example, because the damager can more easily and securely cause the lesser evil) not only sins, but also is bound to restitution insofar as this circumstance harms the neighbor.

β) He who persuades that damage in goods of fortune be inflicted rather upon rich persons in general than upon a poor man likewise does not sin. In practice this case rarely occurs, because a damager altogether prepared to act is also accustomed to be determined as to the persons to be damaged. Hence he who by his counsel wishes to turn him away from an evil action ought to persuade him of something not general but special; but this is not lawful to persuade.

γ) He who persuades that the damager inflict damage rather upon rich Peter than upon poor Paul and perhaps a friend, sins and is bound to reparation of the damage. Thus the common and true opinion, because such a counselor is truly the unjust efficacious cause of the damage inflicted upon this determinate person. And this person is reasonably unwilling that damage has been inflicted upon him from that counsel.⁴⁴ Certain theologians,⁴⁵ however, even in this case excuse the counselor from sin and from reparation of the damage inflicted, because, they say, counsel of this kind is conformable to charity, and therefore the person damaged is indeed gravely unwilling against the damager, but not against the counselor. Tanquerey rightly says:⁴⁶ "This argument seems weak; for if the counsel had not been given, damage would not have been inflicted upon this determinate person; but this person is not bound to yield his right for avoiding a greater damage of another. Hence in practice the prior opinion seems to us to be followed."

c) On the obligation toward the damager. The one counseling a bad action ordinarily is held to nothing toward the damager, unless nevertheless a) he used deceit, fraud, or lies, and β) by his office he was bound to give right counsel. The reason is that he who executes the counsel received freely and knowingly damages. But no injury is done to one who knows and wills. But if the one executing the counsel was led into error by the lies and frauds of the counselor or by reverence toward the counselor's state and office, he truly suffered injustice and has the right to demand indemnity. This last case can occur especially in the office of advocate and confessor. An advocate or confessor giving false counsel, from which material damage follows either for the one accepting and executing the counsel or for a third person, sins, and if he does not revoke the counsel given according to his powers, he is obligated to reparation of all the damage. For anyone seeking counsel has a strict right of demanding that he who by office ought to give counsels have sufficient knowledge and employ moral diligence. He also who, not by reason of office, but as a merely private person, has given harmful counsel, is bound at least from charity to revoke it; and this holds whether he gave the counsel in good faith or in bad faith. The reason is that everyone is bound at least from charity to prevent damage to the neighbor.

d) On the necessary revocation. He who vigorously revokes counsel given before the damage has been inflicted is not bound to reparation of the damage which, notwithstanding the revocation, the damager is going to inflict. Thus all teach, if the counsel was impulsive, naked, and not clothed. But if the counsel was supported by reasons and indicated means for execution of the work, simple revocation does not suffice, but the counselor is bound with all his strength to prevent the damage of the neighbor; and if he cannot turn the damager away from execution of the unjust action, he is bound to warn the person to be damaged, so that he may guard himself. But if the counselor has done all these things (especially if he gave the bad counsel in good faith), he is now held to nothing further, because he is not the theologically culpable cause of the damage. But if the counselor in bad faith gave the counsel which he now so vigorously revokes, he likewise seems to be free from repairing the damage inflicted, a) because then he truly did everything he could to prevent the damage of the neighbor, and β) because the damager is then judged to act no longer from force of the counsel received, but from his own malice. Certain authors, however, teach the contrary, e.g., Billuart,⁴⁷ Lugo.⁴⁸

⁴⁰ Cf. Billuart, De iure et iust. diss. 8, a. 13, § 3.

⁴¹ Curs. theol. mor. tr. 13, c. 1, n. 114.

⁴² De iust. et iur. lib. 2, diss. 2, c. 9, n. 17.

⁴³ L. c. § 3, n. 5.

⁴⁴ Cf. Billuart, De iure et iust. diss. 8, a. 13, § 1, n. 6.

⁴⁵ Vasquez, Turrianus, Ballerini; Gopfert (Moraltheol. II, 164) calls this opinion sufficiently probable.

⁴⁶ De iust. c. 3, n. 522.

⁴⁷ De iure et iust. diss. 8, a. 13; cf. St. Alphonsus, Theol. mor. l. 3, n. 559.

⁴⁸ De iust. et iur. disp. 19, n. 37.

311. A mandans (mander; bevelen or gebiederi) is one who commits to another a business to be carried out in his own name; in the case, one who by his express or tacit mandate moves another to inflict damage in his own name, namely, in favor of himself, that is, of the mandator: whether he does it by commanding or by asking, whether he has authority or not.

It can happen either explicitly: by command, threats, entreaties, hope of reward, or another positive act by which another is moved to harm his neighbor; or implicitly: by some sign, word, or deed, by which someone manifests his will, as if he complains that no one will avenge an injury done to him, as Henry II, king of England, complained that he could not have peace in the kingdom with one priest (whom all understood to be Thomas of Canterbury); but it is not enough that someone merely ratify damage already inflicted beforehand in his favor, or that he not impede another prepared to inflict it, because he is by no means truly a mandator and positive efficacious cause of the damage.

A. Toward the person damaged, the mandator is bound to repair all damages which the mandatary inflicted on the neighbor by force of the mandate, or which were morally connected with the execution of the mandate and therefore at least in confusion were foreseen, as if mutilation follows from blows with cudgels, or if, with the barn of an enemy being set on fire, the barn of a neighbor also is burned. For the mandator is the principal and primary cause, which perpetrates the damage through another; the executor is only the secondary and ministerial cause which acts for the mandator.

Nevertheless the mandator is not bound concerning damages inflicted but not by force of the mandate; namely:

1. if they were inflicted beyond the limits of the mandate from the malice of the mandatary or from error, provided the error, because of the difficulty of the thing mandated, does not as it were follow from the mandate itself: for in these the mandatary acted in his own name, but did not act in the name of the mandator. Thus, for example, if in place of a beating he inflicted death, or in place of Peter he killed Paul;

2. if the mandate has seriously and efficaciously been revoked, so that the revocation became known to the mandatary before the damage was inflicted: for by such revocation the mandate is extinguished, whence the mandatary, inflicting damage, now perpetrates it in his own name, but not in the name of the mandator. And therefore the latter is now not bound to restore as mandator, indeed in no way, unless he also was a counselor or one not obstructing: for then he would be bound under another quality.

But a) if the mandate can no longer be revoked, the mandator is bound from justice, even with at least equal damage, to use some other means to impede the damage, for example, by warning the owner, because from justice he is bound to impede it as much as he can;

b) if the revocation did not become known or another means cannot be employed, the damage truly follows from the mandate and is to be repaired;

c) if some third party maliciously impeded the revocation, he owes the mandator compensation for the restitution.

B. Toward the mandatary, the mandator per se is not bound to repair damages incurred by him: for he who entirely freely, and especially with an agreed wage, undertakes some business to be carried out, assumes in himself the perils of the execution. Per accidens the mandator is bound concerning damages:

1. if he has expressly obligated himself to furnish that indemnity;

2. if he morally coerced the mandatary by force, fear, fraud, or another unjust means, and the damages have a connection with the execution of the mandate; therefore excepted are those damages which the mandatary incurs from imprudence or rashness: for these he ought to impute to himself.

312. The counselor and the flatterer. - A counselor (conseiller; raderi) is one who moves another to inflict damage upon his neighbor in his own name; whence he is distinguished from a mandator by this, that he does not move another to act in his own name: for if he does this in his own favor, by that very fact he is a mandator. Hence the executor of counsel acts in his own name, the executor of a mandate in the name of another; and therefore, while the mandator is a primary cause, the counselor is a secondary cause; whence he is bound only secondarily to repair damages.

One counsel is doctrinal, another impulsive. Doctrinal or theoretical counsel is concerning the truth or licitness of an action, by which, namely, it is declared licit if it is illicit, good if it is bad, or bad if it is good, valid if invalid, or invalid if valid, etc. Impulsive or practical counsel abstracts from the truth or licitness of the action, but, cutting off from it, indeed with the injustice of the action supposed, nevertheless moves another to it by which damage may be inflicted.

Each is clothed or qualified, or naked or simple. The first at the same time suggests motives or means of harming: motives, namely, from which it may appear that the action is licit, honorable, easy, excusable, useful, necessary; or means by which damage can be inflicted certainly, easily, safely, by which, for example, poison is prepared, abortion is procured, a house can be invaded; the other simply induces one to harm by persuasion, entreaties, blandishments, promises, or other exhortations, for which ordinarily mere example does not suffice, which of itself alone is an occasion and not counsel, unless it is given professedly by way of teaching or invitation.

A flatterer (louer; prijzen) is to be equated with a counselor: he is one who by praising or by blaming incites another to inflict damage on a neighbor or not to repair it.

It is committed by adulation, praise, reproach of idleness or pusillanimity, exaggeration of a contumely received, mockery, whispering, etc., by saying, for example, "you are idle if you suffer this," "it is unbecoming to your state," "you lose honor if you do not take vengeance." The flatterer exercises the same influence as one offering impulsive counsel; and consequently he must repair the damage inflicted in the same way; nevertheless, he who approves damage already inflicted is per se not bound to restitution, unless the approval induces new injuries or efficaciously impedes reparation from injury.

1. if by reason of status or office, or for another cause, he publicly professes expertise, as a physician, advocate, notary, confessor, etc., and gives harmful counsel, whether a) from vincible ignorance, or b) from gravely culpable negligence, or c) from bad intention, he is bound to repair every damage arising therefrom, both to the one consulting and to a third party: for he who seeks counsel from one who is in office or professes expertise has a strict right not to be deceived by the ignorance or malice of the one consulted, with damage to himself or to a third party; whence in the case the counselor is the unjust, efficacious, and culpable cause of both damages;

2. if a merely private person gives counsel, he is bound to repair the damage inflicted on a third party, because he is its voluntary cause, insofar as he foresaw it at least in confusion; but he is not bound to restore to the one seeking counsel, unless he deceitfully affects special expertise: for he who seeks counsel from an unskilled person spontaneously exposes himself to the peril of damage and deceives himself, and whatever damage he may suffer, he ought to impute to himself and to his own imprudence;

3. each is bound from justice to retract the counsel given: with grave inconvenience indeed if he gave harmful counsel from grave fault, otherwise without grave inconvenience; but if he neglects to retract it, he is bound to restitution.

B. The counselor by merely impulsive counsel, or the flatterer, is bound to repair the foreseen damage which from the counsel was inflicted on a third person, because he unjustly harmed him; but not the damage which comes upon the one seeking counsel, because injury is not done to one who knows and consents.

Hence 1) if wicked counsel is given to him who is already sufficiently determined to inflict damage, there is no obligation of restoring, because the damage was not inflicted from the counsel which was not its efficacious cause.

2. When the other is already determined to inflict damage, if the counselor only persuades the mode of doing it, or another circumstance of place, time, etc., he is not bound to restitution; unless per accidens, if he has thus increased the damage, as if by indicating a mode he persuaded greater damage, in which case he is bound concerning this excess, or if he procured it more certainly or more safely, as if he warned that it must be inflicted sooner because otherwise it would have been impeded, in which case he is bound concerning the whole damage.

3. He who counsels a lesser evil to him who is already determined to inflict a greater one is not bound to restitution, if the damage is inflicted on the same person, because then he is not the efficacious cause of that damage but only of its diminution; on the contrary if he said that a lesser damage should be inflicted on another person determined in particular, because then he is the true cause that damage was inflicted on this one, nor is it licit to impede the damage of one with the injury of another. Nor let it be said that such a one is unreasonably unwilling against such counsel, for no one is bound with great inconvenience to yield his right, in order to avoid the greater damage of another; and even if he were bound to this, it would be from charity alone, not from a strict debt, which does not suffice to remove the nature of injury from the action (n. 246).

4. If two or more together offer wicked counsel, all are equally bound to restitution in solidum, as efficaciously influencing the damage.

5. He who, before the damage is inflicted, has efficaciously revoked the counsel (or adulation), so that the revocation became known to the one seeking counsel,

a) is not bound to restitution if the counsel was simple, which is destroyed by a simple retraction;

b) even if the counsel was clothed or attended by reasons, provided he has brought contrary motives equally efficacious or stronger, such as reasons sought from faith: for then if the other does not wish to yield to these motives and change his mind, the damage will have to be attributed to this one's malice, but not to the revoked counsel;

c) but if the counsel was clothed with an indication of the mode or means of perpetrating the damage, the counselor from justice is bound not only to revoke the counsel, and by valid reasons to induce the other not to use the counsel; but also, if he cannot turn him away from the unjust purpose, to warn the owner that he take care for himself, or in another way to impede the execution as much as he morally can, as was said concerning the mandator; otherwise he will be bound concerning restitution on account of the damage.

As to the flatterer, it should be noted that an influence is removed with more difficulty from blame than from praise.

XI. QUESTION VI. What of those who by command, counsel, or consent flow into a neighbour's loss? ANSWER. Under command are comprehended all those who order an injustice to be done, for the executing of which another was not prepared. This command can be imposed tacitly or expressly. When by force of that mandate the loss follows, he who commands is always held to restitution. Tacitly this command can be imposed in various ways. What! says a master to his servants, or a friend to his friends: does none of you avenge my injury? He would do me the greatest favour who should kill my enemy. By these and like expressions a tacit mandate can be made. All the circumstances nevertheless are to be regarded before it be determined that anyone is liable to restitution by force of a tacit mandate.