Damnification in General

429. Declarations. 1. Unjust damaging (actively) is an action by which someone inflicts damage on another in external goods, taking no profit from it.

Damage can be inflicted on a neighbor in two ways: either because the neighbor's thing is destroyed (by action or by omission of a due action), or because the neighbor is impeded from obtaining a good which is owed to him.

2. Damaging is a sin grave from its kind. It is grave or light according as the damage which is inflicted on the neighbor is grave or light.

430. On him who impedes another from obtaining a good. 1. He who impedes another from obtaining a good to which he has a strict right (whether the right is in the thing or to the thing), acts against justice and is bound to restitution, whether he impedes him directly or indirectly, by just or unjust means; because he is the efficacious cause why the other does not obtain what is owed to him by strict right.

He who, even by means not unjust, for example, by prayers, induces a father to deprive his son of the legitimate part of the inheritance to which the son has a strict right from positive law, injures justice and must restore to the son the good of which he is deprived.

2. He who impedes another from obtaining a good to which he does not have a strict right, but does this by unjust means, likewise sins against justice and is bound to restitution; not so if he does this by just means, for example, by prayers and persuasions, although he does it from hatred. The reason for the first is that everyone has a right not to be impeded by unjust means from obtaining a good of which he is not unworthy. Here it must be noted that not only frauds, lies, and accusations, but also importunate prayers and troublesome flatteries by which another's liberty is impeded, are unjust means. The reason for the second is that everyone can use the right which he has of asking or persuading another for his own utility or that of others.

a. A poor man who by detractions or calumnies brings it about that another poor man is deprived of alms; a servant who by defaming another servant brings it about that this one does not obtain the service which he deservedly hopes for; an innkeeper who by calumnies spread against another innkeeper is the cause that guests are turned away from him, sins against justice and is bound to restitution. As to the obligation of restitution it makes no difference whether the injury is inflicted on him who is impeded from obtaining the good, or on him who was going to give the good. Therefore he too is bound to restitution toward the poor man who, by unjustly instilling fear in a rich man, impedes him from giving alms to a determined poor man to whom he was going to give it.

b. He who by prayers induces a testator not to leave an inheritance to Caius, who has no right to it, but to Sempronius; or he who, from hatred, by persuasions induces a bishop, already determined to confer a benefice on the more worthy man, to confer it on a less worthy man, does not act against justice if a strict right to the benefice does not belong to the more worthy man.

3. He who impedes another from obtaining a good of which he is unworthy does not sin against justice nor is he bound to restitution, even if he uses unjust means; because an unworthy man has no right to the good which he seeks, for example, to an office or benefice, nor does he have a right to demand that he not be impeded from obtaining that good by whatever means.

Therefore he who by calumny brings it about that another does not obtain an unjust legacy or office, of which he is not worthy, indeed sins against justice by calumny against the neighbor and is bound to repair the injury to reputation; but he does not sin by the fact that he impedes him from obtaining the good. A woman who by frauds turns her husband away from a prodigal donation is bound to repair nothing to the donee, because the gift can neither be given nor received without sin.

He too is considered unworthy who uses illicit means for obtaining a good; whence justice is not injured if he is turned away from obtaining the good by likewise illicit means. Thus, where Caius had corrupted with money the magistrates on whose vote the conferral of an office depends, in order to obtain their vote, he cannot complain of injustice if another by calumny brings it about that Caius does not obtain the office.

4. He who impedes someone from averting damage from another acts against justice and is bound to restitution by the same reason as he who unjustly impedes another from obtaining a good. Thus he who, by force inflicted, impedes someone from extinguishing fire applied to the house of the neighbor, is bound to restitution toward the neighbor.¹

¹ Sporer-Bierbaum II, tract, n. 242 ss.

A damaging action must be truly unjust, depriving another of a good to which he has a strict right either in the thing or to the thing, because only damage unjustly inflicted induces the obligation of restitution (n. 431).

a. He who by his action inflicts damage on another, but does not injure commutative justice, even if by that action he sins against another virtue, is not bound to repair the damage.

Thus when Caius, with the mind of harming Sempronius, persuades Titius not to make a testament, because he foresees that he would make it in favor of Sempronius, he is not bound to restitution toward Sempronius, because Caius's action (persuasion), although damaging, is not unjust.

b. He who inculpably places a cause of damage and does not remove it, although he could, sins against commutative justice and is bound to reparation of the damage: for everyone must take care that an action placed by himself not harm another, as long as he can impede its damaging efficacy. Yet this obligation does not urge with relatively grave inconvenience, because the damaging action, as only materially unjust, is less voluntary than an action formally unjust.

From this principle the following cases are solved: alpha. a traveler who inadvertently set another's forest on fire; a pharmacist who by error gave poison for medicine; a counselor who inculpably gave harmful counsel, are bound to repair the whole damage which they could have impeded without grave inconvenience and did not impede. beta. He who by error charged another with a grave crime is not bound to retract if he cannot do this without grave detriment to his own reputation.¹

c. An owner who abuses his own thing for sinning does not thereby lose his right in his own thing; wherefore he who takes it away or destroys it does an injury; and he who holds another's thing is bound from strict right to return it to the owner, even if the owner is going to abuse it.

Yet since everyone is bound to impede the sin of his neighbor as far as he morally can, it is not permitted to return a thing to one who will abuse it for sin, unless a greater or lesser inconvenience is feared in proportion to the greater or lesser sin which the neighbor is going to commit.

d. An unjust distributor of offices or benefices injures commutative justice toward private persons who have obtained a strict right to the office or benefice. But they obtain this where a competition is proposed and under an onerous condition it is promised that the worthier man will be chosen. Such is a competition which is proposed with this condition, that a determined prize will be received by him who has made the best work or displayed the best thing.

As to the obligation of restitution which arises on the occasion of various exhibitions which today are made of machines, horses, fruits, flowers, etc., attention must first be given to whether the exhibition has the character of a competition or the character of a means for promoting the cultivation of things and therefore the common good.

In the former case he who displays the best thing acquires a right to the (first) prize, and therefore he who brings it about that the prize is not adjudged to him is bound to make restitution to him. In the latter case no one has a strict right to the prize. Therefore he who is the cause why the prize is not given to him to whom it corresponds by reason of the thing displayed, sins against distributive justice, but is not bound to reparation of damage.

¹ Cf. Lugo, disp. 8, n. 86; Ballerini-Palmieri III, n. 349; Lehmkuhl I, n. 969; Genicot I, n. 513.

455. On competition for ecclesiastical benefices. a. A twofold competition is distinguished: one general, which is proposed for an indeterminate benefice or office not yet vacant; another special, which is proposed for a certain and determined vacant benefice or office. If an office or benefice is conferred after a general competition, it must be conceded that the superior is not bound from commutative justice to prefer the more worthy man to the others, because the more worthy man who is omitted does not have a strict right to a determined benefice.

b. If a special competition is instituted, all teach that the superior is bound to confer the benefice on the worthier man; but not all agree whether the worthier man, by force of the competition, also acquires a strict right to the benefice, so that the superior must compensate him for the damage if, after omitting him, he chooses a less worthy man. The common opinion indeed teaches that the worthier man has a strict right to the benefice; but the opinion of those who deny the strict right of the worthier man seems probable. St. Alphonsus later retracted the opinion which at first he had called probable.¹

¹ St. Alphonsus, l. 4, n. 109; Elench. quaest. reform., q. 47. Cf. Lehmkuhl I, n. 972.

456. In order that a damaging action induce the obligation of restitution, it is required that the damage have actually followed from the action as from its own cause: for he alone can be obligated to repair damage who is author of the damage and therefore either himself effects the damage or in some way moves another to effect the damage.

Therefore the obligation of repairing damage is not had: a. if the damaging action is only the occasion of the damage: for an occasion is not a true cause, but that at whose presence the true cause acts; b. if it is only a condition without which not, or that without which the cause cannot act; c. if it is only a cause per accidens, from which damage can indeed follow, but it is not probable that it will follow from it, and therefore that it will follow is not foreseen: for justice does not oblige one to avoid actions from which damages to another follow only remotely and per accidens.

a. If a theft committed by Titius, from error because of other thefts previously perpetrated by Sempronius, is imputed to Sempronius, who therefore is punished as guilty of theft, the theft of Titius is the occasion of the damage which Sempronius suffers; its cause is the judge's sentence arising from the judge's error.

b. If someone returns a sword to him who abuses the sword to commit homicide, the handing over of the sword is a condition without which the homicide would not have been committed.

c. A cause per se of an effect is said to be that which by its nature is ordered to producing it; thus applying fire to a barn is the cause per se of the burning of the barn. A cause per accidens of an effect is said to be that which by its nature is not ordered to producing this effect, but produces the effect only when external circumstances concur; thus to kindle fire in a remote place, which a wind unexpectedly arising casts into the barn, is the cause per accidens of the burning of the barn. Therefore a cause per accidens: alpha. contributes something to producing the effect, whereas the occasion and necessary condition contribute nothing; beta. its connection with the effect is neither certain nor probable, but only possible, and therefore the effect is not foreseen by the agent.

457. Resolutions. 1. He who by his example entices others to inflict damage is not bound to repair the damage inflicted by them, even if he foresaw, indeed even if by acting he intended, that others would follow his example: for example is not a cause, but a mere occasion of the action of others, who imitate the example. And indeed not the example which they see, but the evil will of the others, is the cause of the damaging action, which itself is the efficacious cause of the damage. Yet he who truly induces others to inflict damage is bound to repair it: for induction is not a mere occasion, but the cause of the action of others.

2. If someone's damaging action is imputed to another, for example, if someone's theft is imputed to another, who suffers damage from it, one must distinguish.

a. If he either did not foresee the damage, or indeed foresaw it and even intended it, but did not use means by which suspicion of the crime would be turned onto the other, he is not bound to repair it, because he is not the cause, but the occasion of the damage: for the cause of the damage is the error or evil will of those who ascribe the damaging action to the innocent person, and he by his action offers an occasion to this error. b. But if he not only foresaw the damage, but if in addition he used means which would supply a grave motive for attributing the action to another, for example, if to steal he dressed himself in another's garments, or if to commit homicide he used another's weapons and threw the weapons sprinkled with blood into his house, he is bound to repair the damage, because he is its cause per se.

To the question whether a guilty man is bound to denounce himself, lest an innocent man be punished as guilty, one must answer thus. In the former case he is not bound to denounce himself as guilty, because, since he is not the cause of the damage, he is bound only from charity to free another from penalty; but charity does not oblige with so great an inconvenience. In the latter case he is bound to denounce himself, because, since he is the cause of the damage, he is bound from justice to free another from penalty; but justice obliges the guilty man even with equal damage to himself.

3. If someone's damaging action of itself is only a cause per accidens of damage, but is placed by the agent with the single and direct intention that the damage follow, this intention brings it about that the effect is voluntary and can be imputed to the agent as a cause per se, provided his action truly existed as the cause of the damage and was placed uniquely, or at least primarily, from this intention. But if the action does not truly cause the damage, it must be called its occasion; and if it is placed from another intention, it is the cause of the damage per accidens.

He who steals from a miser a thing of slight value and by this theft is the cause why the miser falls into a grave illness is the cause of the illness per accidens; but if he intends only this, that the miser fall into illness because of that taking away, he is the cause per se of the illness and must repair his damage, because he is at the same time the unjust cause of the damage. He who places a snare in a road through which his enemy rarely passes, yet with the intention that the enemy, going to pass by chance, break his leg, is the cause per se of the damage and is bound to reparation, because at the same time he acts unjustly. But if from another end he places the snare while at the same time desiring the enemy's damage, he sins internally against charity, and the external action is the cause of the damage per accidens, although unjust.¹

¹ Cf. Lugo, disp. 8, n. 75.

458. Notions. Juridical fault must be distinguished from theological fault. Theological fault is said to be that which constitutes a true sin, whether mortal or venial; juridical fault consists in the omission of diligence and caution required by positive law for forestalling damage, whether that omission is joined with sin or is not. But if damage is inflicted entirely without sin, or without advertence, there is merely juridical fault.

a. A threefold juridical fault is distinguished according to the degree of diligence omitted: broad fault, which is the omission of the diligence which men commonly are accustomed to apply in their own affairs; light fault, which is the omission of the diligence which more diligent and prudent men are accustomed to apply; very light fault, which is the omission of the diligence which only the most diligent and accurate persons are accustomed to apply in their actions. A precious thing received on loan is taken from Caius; now Caius is guilty of broad fault if by night he leaves the house open; of light fault if, on going out, he closes the door of the house but does not lock it; of very light fault if, on going out, he closes and locks the door of the house, but does not examine whether it has been well locked. Recent laws indeed do not expressly have this distinction; yet because in some circumstances they require less diligence, in others greater diligence, they contain it equivalently.

b. Broad fault is ordinarily accompanied by theological fault, both because ordinary diligence must be applied in fulfilling one's office, and because advertence to the damage going to follow can scarcely be absent; but theological fault does not accompany light or very light fault unless the affair is of the gravest moment. For in proportion to the greater gravity and moment of the action or office, greater diligence and solicitude must be applied; hence in affairs of greatest moment the most accurate diligence must be applied. Wherefore it can happen that omission of this diligence, or fault juridically very light, is theologically grave fault or even most grave fault.

c. A damaging action from a threefold source can be theologically lightly culpable: alpha. from smallness of matter; beta. from imperfection of the act; gamma. from a light defect of due diligence, namely where some, but not all, diligence which is due is applied.

d. There are several cautions which by force of positive law are required from architects in raising buildings, from masters in constructing factories and workshops, from mechanics in caring for machines, etc., to forestall misfortunes. Those in whose favor laws of this kind are made have a right to demand that they be observed accurately; but those for whom they are made are not bound in conscience to observe those which exceed the moral diligence necessary for impeding misfortunes, if those whose interest is involved at least tacitly consent to the omission.

459. Principles. 1. In order that a damaging action induce the obligation of restitution, it is required that it be theologically culpable: for no one is obligated in conscience to repair damage unless it was inflicted in conscience. Moreover no one is held for his actions and their effects unless they are voluntary; but an action which is not theologically culpable is generally not voluntary.

a. He who in good faith accepted another's thing and consumed it is bound to restore nothing, unless from it he has become richer. Boys who knowingly and voluntarily indeed steal, but without advertence to the theological malice of their action, which they apprehend only as subject to penalty, are not obligated to restitution. He who from mere inadvertence did not extinguish a candle, whence a fire arose, is not bound to repair the damage. A physician who from inculpable error gives a harmful remedy to a sick man contracts no obligation of restoring: for in all these cases theological fault does not intervene.

b. He who retracts an evil will before the damage is produced by the physical cause is bound to repair it: for repentance of the will cannot bring it about that the obligation of restitution, which has already been contracted when the efficacious cause of damage had been placed with theological fault, ceases. But if the cause of damage is moral, retraction of the will sometimes brings it about that the obligation of repairing the damage ceases, as will be said below (concerning restitution because of unjust cooperation).

2. The obligation of restitution from merely juridical fault is present only after the sentence of a judge, unless someone has obligated himself otherwise by a special contract.

a. Laws which impose the obligation of restitution from merely juridical fault are just laws established by legitimate authority: for they are founded for the common good, namely so that citizens may be rendered more cautious and diligent, and by this reason damages may be forestalled; but just laws oblige in conscience. But those laws are penal, because they punish the omission of prescribed diligence; but penal laws do not oblige before the sentence of a judge, because no one is obligated to impose a penalty on himself.

b. Damage inflicted without theological fault on another's thing held by contract (loan, deposit, etc.) need not be repaired in conscience before the sentence of a judge, because in entering the contract the contracting party did not obligate himself to this.

Nothing indeed prevents someone from obligating himself by a special contract to repair, before the sentence of a judge, damage which arose from merely juridical fault or from a fortuitous event; but without a special contract no one is bound to this, because it is not established that in entering the contract he wished to obligate himself to this.

c. Damage inflicted in fulfilling an office (of judge, advocate, physician, confessor, etc.) without theological fault need not be repaired in conscience before the sentence of a judge: for from the common judgment even of the timorous, he who undertakes an office is not considered to obligate himself except to ordinary diligence; otherwise offices, with detriment to the public good, would be rendered too burdensome.

There are some who contend that in contracts which redound only to the profit of one of the contracting parties, and in quasi-contracts which are entered by undertaking an office, this implicit pact is always contained, namely of repairing damage even when it has arisen from merely juridical fault; and therefore in these cases restitution must be made in conscience before the sentence of a judge. But it can be denied that a pact of this kind is contained in those contracts or quasi-contracts, because neither the law of nature nor human law requires a pact of this kind. But because those offices by their nature demand great diligence, it can easily happen that negligence materially light is gravely culpable.

WHEN other sins have been committed they are blotted out and reparation as far as possible is made for them by sincere sorrow and repentance. But when commutative justice has been violated it is not sufficient to be sorry for the injustice done; reparation must be made for it by putting, as far as possible, the person injured in the same condition as he would have been if the injury had never been inflicted. This reparation for an injury that has been done to another is called restitution. There is a strict obligation in justice to make restitution as far as is possible to another whom one has injured; for justice requires that each one should have his own; but one who has been injured is deprived of his own so long as restitution has not been made; and so, in order that each one may have his own, in order that that equality may be preserved which justice prescribes, restitution is of strict obligation whenever commutative justice has been violated. It is an obligation of justice, and so it is a grave one, unless the matter be light.

WHOEVER wilfully causes unjust damage to another, even though he himself obtained nothing by his unjust action, is bound to make restitution to him as far as he can. For he is the unjust cause why another has not what belongs to him, and in order that justice may be done he must cause the person damaged to be put as far as possible in the same condition as he was in before the damage was done. He must then make restitution not only for all the damage which he intentionally caused, but for all consequent losses as far as they were in general foreseen.

In order that such an obligation may be imposed, certain conditions must be fulfilled which it will be well to state more explicitly.

(a) The damage must be inflicted voluntarily, with knowledge and the will to do the wrong. For a man is only responsible in the forum of conscience for his free and voluntary actions. There must be theological fault, as theologians express it, otherwise there will be no obligation in conscience to make good any damage, at any rate before lawful sentence of a judge competent to impose such an obligation. For the law sometimes imposes the obligation of making good damage which has been done, even though it was not foreseen or intended. This is especially the case when there has been legal negligence or the omission of that diligence which the law requires in the circumstances. There are three degrees in this negligence: “ Ordinary neglect has been defined to be the omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns; gross neglect is defined to be the want of that care which every man of common sense, however inattentive soever, takes of his own property; and slight neglect to be the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels.”¹ In some cases the law punishes even slight neglect, in others ordinary, in others only gross neglect. The omission of that care which the law requires in the case is called juridical fault, and after sentence there will be an obligation in conscience to make good damage caused through juridical fault, for the laws prescribing this are just, inasmuch as they make men more careful and conduce to the public good.

If something has been done without foreseeing that it would cause damage to another, but this danger was noticed before the damage actually took place, there will be an obligation in justice for him who performed the action to prevent the damage as far as he can; if he does not do this, he will be bound to restitution. For as long as he can prevent the evil consequences of his action, this is under his control, and may, from the point of view of morals, be considered as continuing, and thus, unless he prevents the evil when he can do so, the agent is the voluntary cause of it. If, however, he cannot prevent the damage without relatively serious inconvenience to himself, there is just cause for excusing him. And so, if I inadvertently throw a lighted match on the ground, and then notice that it may probably cause a conflagration with loss to others, I am bound in justice to extinguish the light, otherwise I must repair the damage done.

If slight negligence caused slight damage to another, there will be an obligation of repairing it under pain of venial sin. If slight negligence caused serious loss to another, there is a difficulty as to whether before any judicial sentence there be an obligation to make restitution. Many theologians deny that there is, for no grave obligation can arise from a slight fault, and a light obligation has no proportion to serious matter; there cannot be a light obligation to avoid homicide, for example.²

(b) In order that there may be an obligation to make restitution for causing damage to another, the damage must be really and objectively unjust. If damage to another follows from the lawful exercise of my rights, I am not bound to make it good. If I dig a well in my property and thereby deprive my neighbour of his supply of water, I am not bound to make restitution for the damage. Similarly, I may sell a new machine or invention, though it may indirectly cause loss to many who had on sale machines of older pattern for which now there will be no market.

I may lawfully use persuasion to induce a rich relative to leave his money to me, though others who would have had it thereby suffer loss, If, however, I make use of unjust means such as threats, violence, or calumny, and so prevent another from getting what he otherwise would have got, I commit a sin against justice and am bound to make restitution to the injured party. This is true even though he had no strict right to what he would have got, for at least he had a right not to be balked of his expectations by unjust means, And so in a competitive examination or concursus where something of value is the prize at stake, one who secures the prize by unjust means must make restitution to him who would otherwise have secured it. If there were no certainty of his securing it, restitution as far as possible must be made according to the degree of probability of his success.

(c) The unjust action must be the cause, not merely the occasion, of damage being done to another, in order that there may be an obligation of making restitution. For we are only responsible in justice for damage which we have caused. And so if I commit theft and others are induced to do the same by my bad example, I am indeed bound to make restitution for what I have stolen, and I commit a sin against charity by giving bad example to others; but probably at least, according to many theologians, I am not bound to make restitution for what others stole through my bad example. Similarly, I am not bound to make restitution for damage which was caused accidentally by my action, when there was antecedently no probable connection between my action and the damage caused. As, for example, if I lit a fire in my property, and there was no probable danger of its causing damage to my neighbour, I am not in conscience before judicial sentence bound to make good damage which it caused him on account of an unforeseen change in the direction of the wind. Some theologians would bind the man who lit the fire to restitution in this case if he hoped for the change of wind and intended the damage. They say that the wrongful intention supplies the want of physical causation and puts him under the obligation of making restitution. This opinion is probable, but the opposite also is probable, for although the evil intention makes the man guilty of affective injustice, he is not guilty of effective injustice, for his evil intention makes no difference in the physical sequence of cause and effect, and if he was not the cause of the damage prescinding from his evil intention, that evil intention could not make him the cause.

In the same way, if the theft of one servant is wrongly imputed to another, and this one is dismissed in consequence, the thief is not bound to make restitution to the injured man unless in some way he caused the false imputation.

One who is not sure whether any harm was caused by his action is not bound to make restitution, for a certain obligation cannot arise from an uncertain source. Whether there is any obligation of making restitution for damage which was certainly caused, but it is uncertain whether the author was A or B, is a disputed point among theologians. Many teach that there is an obligation on all the probable authors in common to make good the damage, and each will be bound to make good the whole in default of the rest. This is certainly true in case of conspiracy; but if each acted independently, and it is not certain which one caused the damage, it is hard if the burden of restitution is imposed on someone who perhaps did not cause the harm.³

If an incendiary intended to set fire to the house of A, and by mistake he destroyed the house of B, it would seem that he is bound to make restitution, for all the requisite conditions are present. His action was voluntary, really, and effectively unjust. Some theologians, however, deny that the obligation of making restitution can be imposed in such cases. For the injury should be formal, and they deny that it is formal in this case. He did not intend to injure B; it was purely by mistake that his house was burnt down. Some weight must be allowed to this opinion on account of the authority of those who maintain it, but it would seem to be over-subtle and against the common sense of mankind. The injury was formal, inasmuch as it was voluntary and knowingly unjust. This is sufficient to induce the obligation of making restitution; it is not necessary that the wrongdoer should intend to injure a definite person.

¹ Chitty, The Law of Contracts, p. 412.

² St Alphonsus, 3, n. 552.

³ Bucceroni, 1, n. 1369.

What has been said about theft in general and about minor thefts in particular is also to be applied to damaging in general and to minor damages in particular. Nevertheless, in particular:

Question 1. Whether even in mere damaging there must be admitted matter absolutely grave, that is, matter which even with respect to the very rich must be held as grave.

Response. It must be affirmed, because the act, for example, of destroying another's thing as such, according to its proper concept, that is, with abstraction made from the damage which is inflicted on the neighbor, involves disorder. But if it involves disorder, one must finally arrive at grave matter (p. 676).

Question 2. How great is the obligation of restoring if someone, through several minor damages following at a brief interval and done against the same owner, finally arrived at grave matter, but subjectively sinned only venially?

Response. The obligation is not grave in practice, because venial sins sufficiently probably do not induce a grave obligation (p. 649). It remains, therefore, that we say the damager is held under venial sin to restore each minor damage.

Whether from damaging there arises an obligation of restitution? A damager is called one who injures another's right, harming his neighbor in his goods, yet without becoming richer thereby. Wherefore damaging is a source of restitution diverse from the preceding ones. "Whoever damages someone seems to take away from him that in which he damages him; for damage is so called from the fact that someone has less than he ought to have.... And therefore a man is bound to restitution of that in which he damaged someone." St. Thomas, 2. 2, q. 62, aa. 4, 6; Inst. l. 4, t. 3; C. B. 249 ff. Whatever act of man is the cause of damage to another obliges to reparation of that damage.

Nor indeed does only one's own act oblige to restitution, but also the act of another person or of a thing, of which someone has custody and care. And thus the proprietor of a house which falls because of defect of due conservation or construction is held concerning the damage which comes from it. The proprietor or custodian of an animal which causes pauperies is also held concerning damage. If a damaging act of this kind was committed with the intention of harming, it is called deceit and delict; if without that intention, from imprudence and negligence, it is called quasi-delict and juridical fault. C. I. 1151 ff.; C. G. 1382 ff.; C. H. 1089, 1092, 1104, 1105, 1902 ff.; C. A. 1293 ff.; C. B. 823 ff.; St. Thomas, 2. 2, q. 62, a. 1, ad 2; aa. 4, 7; E. M.

What are the conditions required for restitution from damaging? - In order that a damaging action induce an obligation of restitution, by the law of nature a threefold condition is required, namely that it be unjust in itself, and not only in intention; that it be an efficacious cause of the damage, that is, that it really influence the damage of another; and that it be theologically culpable; that is, that it be unjust truly, efficaciously, and formally. It is proved. It must be an action unjust in itself; otherwise there is no place for real reparation of justice. C. A. 1305. It must be efficaciously unjust; otherwise, since someone is not the author of the damage, he is not bound to repair the damage.

It must be theologically culpable; otherwise an obligation in conscience of repairing damage inflicted by injury by no means arises, since injury was lacking in the forum of conscience. - Hence very probably juridical fault alone, excluding theological fault, does not suffice for compensation of damages. But if juridical fault also induces theological fault, then indeed it obliges to compensation of damages. Fault, namely grave. Cf. 1329. - Cf. 1072, 1073, 1077; Ithur., Cas. 27, nn. 2, 3, 5, 12, 13; L. 550, 551, 556, 570, 572, 613; C. A. 1299, 1300, 1306 ff., 1331; C. B. 276, 273, 280, 823, 827, 833 ff.

If several slight damagings were made, and were made to the same person, they become a grave sin, whether because of the intention of grave damage, or because of moral union with a brief interval, or because of conspiracy with others, and the damage inflicted must be repaired under grave obligation. But if small damages were made to different persons and inflicted separately, and not all coalesce together by moral union by reason of distance of time, slight quantity, etc., grave sin is not present, since no one is gravely damaged, and the one damaging does not become rich from another's property, nor consequently is there grave danger of damage for society, and therefore there is no obligation under grave obligation of reparation of the damage.

What must the damager restore? - The unjust damager is bound to restore: 1. The whole equivalent of the thing damaged. Thus, e.g., if someone culpably burns another's house, he must repay its full price to the owner. 2. The whole equivalent of damages foreseen besides the damaging of the thing, if any have come from it. Hence, e.g., if a workman is compelled for some time to omit his customary work because you destroyed an instrument necessary to him, you are bound to compensate him not only concerning the value of the instrument, but also concerning ceasing profit. Concerning ceasing profit: "such damage need not be recompensed equally, because it is less to have something in potency than to have it in act." St. Thomas, 2. 2, q. 62, a. 4. - C. L. 2392.

Whether he is bound to restitution who indeed inculpably placed the cause of damage, but afterward did not prevent it, although he could have prevented it? - Resp. Affirmatively. The reason is that each person is bound from justice to prevent, if he can without great inconvenience, lest his action harm his neighbor; therefore he is also bound to prevent lest the evil following from his action persevere.

Hence 1. he who inculpably set fire under another's house, when he adverts to the danger of fire, is bound from justice to prevent it, if he can. 2. Likewise a pharmacist who by error sold poison for medicine must from justice warn the buyer. 3. Likewise, he who by error said something grave against the reputation of another is afterward bound, once the error is known, to correct it; and, if he does not do so, he sins gravely and is obliged to reparation of all damages which come from this. - L. 564.

Whether damage must be repaired which follows from a cause culpably indeed placed, but already retracted when the damage is inflicted? - Resp. Affirmatively, at least if that damage was determined and foreknown in species. Thus, e.g., if someone voluntarily gave poison to another, and afterward cannot impede its effect, however much, repenting of the deed, he greatly wishes to do so, he will be bound to repair damages arising from the homicide. The reason is that he who placed the cause of the damage always continues to influence it efficaciously.

Whether damage must be repaired which is indeed accidental, but inflicted while giving oneself to an illicit work? - Resp. Negatively, because that damage is not voluntary, since it was not foreseen even confusedly. Nor does it matter that the action was illicit; for this pertains nothing to the reason of justice. Thus a cleric who, giving himself to hunting against the prohibition of the Church, kills a man instead of a wild animal, is no more guilty of injustice than a layman who would have done this. Indeed, damage inflicted accidentally does not have to be repaired even if it happened on the occasion of an unjust action, because it does not have connection with that action. Hence one is not bound to restitution who kills Titius, whom he by no means saw nor knew was present, while he was directing a gun at Caius. - Lugo d. 8, nn. 72, 82; L. H. A. 39.

Whether he is bound to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example? The first and more probable opinion denies, because one who gives bad example is not the cause of the damage, but a mere occasion. For an evil action does not of itself tend to excite others to imitate it. Therefore the other damagers are determined altogether from themselves to inflict damage. - The second opinion affirms, because one furnishing bad example, with foresight of contagion, can be held as an efficacious cause of damage; since in some way he influences the determination of those who inflict the damage. And experience teaches that men are moved more by examples than by counsels, according to the axiom: Words move, examples draw. - L. 537; l. 2, n. 45; Antoine p. 2, c. 3, qu. 15; Billuart diss. 8.

Whether you are bound to repair damage coming to someone on the occasion of your unjust action, e.g., if you stole and the theft is imputed to him? - Resp. Negatively, certainly, if you did not foresee that damage. For you are not the theologically culpable cause of such damage. Resp. Negatively also, more probably, although you foresaw this damage. The reason is that your action, even with foresight of the damage posited, is not its cause per se, but only accidentally. Indeed, probably it must also be denied even if you deliberately acted so that your action might be imputed to him, because this action is always only the accidental cause of the damage, and not the per se cause; for it did not by its nature efficaciously influence that damage. For a depraved intention does not cause that work to be unjust which of itself is not unjust with respect to the third party. - Resp. Affirmatively, if the circumstances ever were such that a true connection would be given between them and grave suspicion concerning another. Likewise, altogether affirmatively, if someone used those means which would offer the gravest suspicion for accusing another, e.g., if he put on his clothes to commit homicide and threw them away stained with blood, etc. - L. 635, 636; La Croix 157.

What if an external work is posited indeed from an evil intention, but, although damage can occur, it is not truly probable that it will follow? There is controversy among the gravest theologians. But the state of the question will be clearer from the following examples, namely: 1. Someone places poison or a snare in a place through which his enemy passes very rarely, but with the intention that he be killed if by chance he passes. 2. A physician employs all the diligence to which he is bound, but does not wish to employ greater diligence out of hatred, so that the death of the sick man may follow. It is asked: whether these are the cause of an unjust death which perhaps will follow, if in fact it follows? There is a twofold opinion. The first, more common opinion denies. The reason is that on one side the external act is not unjust, since the mere possibility of another's damage must not be attended to in human affairs; on the other side, the external act is not made injurious by reason of the intention, since intention does not influence the efficacy of the cause, or the danger of damage. For then it must be called a merely accidental cause, and the depraved intention does not change its nature. Hence neither is he unjust in fact who digs a well on his own land so that the neighbor's well may dry up. Who certainly would say that the director of a railroad is bound to restitution because he does not send scouts before individual carriages to see whether some person is in the middle of the way and perhaps is to be killed by the passage of the carriages, although he omits this from the depraved will of killing all if perhaps they are there? But the second opinion affirms. The reason is that in the aforesaid cases homicide is certainly against justice and is not excused except insofar as involuntary. But the intention renders it voluntary. For the reason why, excluding the intention, it is not voluntary is that the one placing the cause is not judged to will the effect efficaciously, since the effect is not probably connected with the cause; but the intention supplies that connection and causes the one acting to be its true cause. For the intention of the one acting contributes much to the character of a cause. Therefore. But mere foresight of the possibility of damage in the aforesaid cases would not suffice for the character of injury; rather, the intention of procuring it is also required. - Lessius l. 2, c. 9, n. 133; Lugo d. 8, n. 75; L. 584; C. A. 1305, 1311.

Whether one who thinks from invincible error that the damage inflicted by himself is much less than it truly is, is bound to restore it all if afterward he recognizes the true price, e.g., if someone throws into the sea another's jewel worth 100, while he believes it to be worth only 10? - He is probably bound to restore only in proportion to the known damage, because damage which is invincibly unknown is not judged voluntary. For restitution from a thing unjustly accepted rests on material injury alone; but restitution from unjust damaging rests on formal injury. Moreover, injury is estimated from the mind of the one injuring; and therefore, if by chance an excess was not foreseen in the damage inflicted, it is not imputed. But the opposite does not follow if, on the contrary, an excess is falsely thought, because then damage is not in fact, but in opinion; and damage is not made by opinion, but by action. Nevertheless there will be an obligation of repairing the whole damage if, when suspicion of a greater price arose at least confusedly, the whole damage becomes voluntary. L. 613.

Whether he is bound to restitution who impeded another from the attainment of some good? - Resp. Affirmatively, if the neighbor has a strict right to obtaining the thing, e.g., in the case of competition for some public office. For then someone either himself commits injustice against him, or becomes an accomplice in the injustice done to him by another. - If the neighbor does not have a strict right to obtaining the thing, one must distinguish. It must be affirmed if it is impeded by unjust means, e.g., by fraud, calumny, fear, etc. But it must be denied if it is impeded, e.g., by means just in themselves, e.g., persuasion, requests, etc.; or even if it is impeded by unjust means, but the thing cannot be given without sin, as e.g., if by lies a wife impedes her husband from squandering the goods of the family.

The reason is that in the first case a most true injury is done to another; in the second no right of another is then violated, neither in itself nor in the means; nor is injury had in the third case, since there is an obligation of not giving. For anyone has the right of impeding an illicit act, and therefore commits no injustice in relation to him who for that reason is deprived of some good, although, to impede that evil act, he uses an unjust means. Nor indeed can someone claim any right, whether proximate or remote, to that good. L. 582, 585, 587, 588, 614, 632, 633; H. A. 61; St. Thomas, 2. 2, q. 62, a. 2, ad 4; Gousset 970-972.

Whether you are bound to restitution if from an evil intention, e.g., from hatred, yet with means of themselves unjust excluded, you turn another away from the attainment of a good to which he does not have a strict right? Resp. Negatively, more probably. The reason is that no injury is inflicted on the neighbor. For evil intention does not suffice for injury, but an external action is required which is the true and efficacious cause of unjust damage. - L. 584, 585; Elbel 108.

Whether he is bound to restitution who doubts whether he himself was the cause of damage? - It is common among doctors that in doubt whether the cause was placed, or whether damage was inflicted, he is held to no restitution. The reason is that the fact is not presumed but must be proved. If the doubt turns on the influence of the action into the damage which certainly occurred, there is controversy. The first opinion, very probable from St. Alphonsus, affirms, because, once the fact of the action is posited, the action is presumed to have been the cause of the evil, if it was truly apt to inflict the damage. The second opinion, from the same Holy Doctor, "also sufficiently probable, denies... and St. Thomas seems to hold this, 2. 2, q. 62, a. 7.... The reason is that general rule, that no one is obliged to restitution unless such an obligation is altogether established, namely that he himself was the true cause of the damage." L. 562. Likewise it seems to be denied if someone probably judges that he has already sufficiently repaired damage certainly inflicted by himself; for the condition of the possessor prevails, and no one is to be despoiled of his own thing unless there is a morally certain obligation. And this also holds in the case of a debtor who probably judges that he has already fully satisfied the debt. For although the obligation was certain beforehand, nevertheless now it is doubtful. - L. 547, 575, 579, 706. Cf. here 1469.

Whether you are bound to repair damage which you inflicted on someone from error, while you intended to harm another, e.g., if you burn the house of Caius, which you think is the house of Titius your enemy? - There is a twofold probable opinion. The first, which several and grave theologians hold, affirms, because in that case all conditions required for urging restitution are present, namely an unjust action, an efficacious cause of damage, and theological fault.

The second, "with Leander, Molina, Tamburini, Lugo, La-Croix... denies that he is bound to restitution, provided he did not intend, not even confusedly, to burn the house of another than Titius.... The reason is that for the obligation of restitution which arises from damaging, principally made because of injury, formal injury is required; nor does material injury suffice, and only effective injury without intention, just as neither does merely affective injury suffice when the external work has not been completed, as this would be. For Cardinal de Lugo speaks thus: 'When I intend to inflict damage on Titius, with the intention of bringing injury to him alone, anyone else being excluded, if afterward through invincible error I injure Caius, the injury with respect to Caius is not formal and affective, but only material and effective, and merely accidental, since I did not have the intention of injuring him, neither in particular nor in general; and therefore I am not bound to restore to him damage which arises from injury. It does not avail to say that for the obligation of restitution it is enough to intend some unjust action and execute it; for the cited doctors respond that for the burden of restitution by reason of damaging, an action materially unjust alone does not suffice, but in addition an action formally, or voluntarily, injurious toward the other who is injured is required. But this voluntary injurious action is lacking in our case, since the action happens beyond the intention, and it is not formally injurious to anyone; for if I intend only to injure Titius, and exclude anyone else, then I voluntarily offend no one: not Titius, because in fact he is not injured; not the other, because with respect to him my action is altogether involuntary, and therefore the error is about the substance.' Thus St. Alphonsus, 629. But soon showing the distinction between damaging and theft, the Holy Doctor adds: 'For in theft it is not attended to whom he wished to do injury, but whether he truly wished to accept the thing while the owner was unwilling, since the obligation of restitution because of damaging seems to differ in this from restitution because of theft: for in damaging injury to the person of the owner is principally intended, and his damage accessorily; but in theft unjust profit is principally intended, and injury of the owner accessorily; and therefore error of owner, in the case of theft, seems to be about a quality, but in the case of damaging about the substance.' Certainly injury is done to a person, and if it is not done to a person, what injury can there ever be?" Cf. L. 628.

To what is the damager bound in goods of the soul? - Whoever, by fraud, lie, force, fear, or another unjust means, or being obliged from office, by his action strives to inflict on someone spiritual damage, whether of the natural order, e.g., by depriving him of memory, reason, etc., through poison, a potion, etc., or of the supernatural order, e.g., by inducing him into sin, into error against faith, etc.; or strives to deprive him of some good, whether of the natural or supernatural order, e.g., lest he learn a science or art, lest he enter religion, etc., is bound from justice to remove that unjust means. Moreover, he must repair damages which come from that unjust means, provided those damages can be repaired in the same order. The reason of both is that anyone has the right that damage not be unjustly inflicted on him, or that he not be impeded from attaining a good. L. 660-662; St. Thomas, Quodl. 5, a. 25; C. A. 1299, 1300.

But if someone not obliged from office, and without fraud, lie, force, fear, or another unjust means, by his action is the cause to another of some spiritual damage, whether supernatural or natural, or of privation of some good, he is bound from charity to impede, if he can, with greater or lesser inconvenience to himself according to the greater or lesser danger of another's damage, and according to the greater or lesser good of which the other is deprived, lest his action harm his neighbor. For if he does not do this, now his action, the cause of another's damage, which from the beginning was perhaps altogether inculpable, when he now adverts to the subsequent damage, becomes altogether culpable. And if from the beginning it was culpable, he ought not persevere in the fault. Yet he is held to no reparation of damages from justice, e.g., if someone by bad example alone or depraved persuasion, without force and fraud, induced another to sin; or if someone gratuitously, without any obligation of pact or office, and fraud and deceit excluded, badly taught another from mere negligence or ignorance. - L. 660.

To what is the damager bound because of unjust homicide? - Homicides or mutilators more probably must restore nothing precisely for life, member, etc., because these are not estimable by price. But they are bound to compensate all other temporal damages of which homicide was the efficacious cause. L. 7, de His qui effuderint, Dig.; C. A. 1325 ff., 1329; C. B. 823; L. 626.

Resolutions: A homicide or mutilator is bound to compensate damages which are inflicted on the injured person himself before his death, such as expenses made in curing the illness, and whatever during that time and for that cause he lost from interruption of work, omitted business, impeded profit, etc.; unless these are condoned by the injured person himself, they must be paid, in his absence, to the heirs, whoever they may be, to whom the real rights of the killed man pass. L. 630, 631; G. 725; C. A. 1325, 1326, 1337. He must compensate damages necessarily coming to the wife, children, or parents of the killed man. For the unjust homicide is bound to restore also to those to whom by his unjust action he per se inflicted damage. But to those whom the killed man ought to have and could have supported, with attention to age, health, etc., by his unjust action he per se inflicted damage. Therefore. But since the injured right of these persons is not the right of the killed man himself, the latter cannot remit it to the killer. From the very reason adduced, the quantity of compensation to be made by the killer toward such persons is clear. Namely, speaking of itself, he is bound to restore as much as the killed man was bound and able to furnish for their necessary sustenance, and that owed to their state, according nevertheless to the hope of that sustenance. To the wife, etc., not to others whom perhaps the killed man supported, because damage happened to them accidentally. Sustenance: therefore if they are in need, and insofar as and as long as they are in need. Lugo d. 11, nn. 81, 82, 88; L. 630, 631, 632; C. A. 1325-1327, 1329; C. L. 2384 ff.

He must likewise compensate all other damages to the wife, children, or parents of the killed man, for whom the killed man was going to gain and probably was going to leave goods, according to the estimation of this frustrated hope, if namely the killer foresaw this; for by unjust means they are deprived of the attainment of these goods. Cf. 1367. He must compensate whatever damages, and of whomever, which follow necessarily, per se, and unjustly from the death of the killed man; such are damages of creditors. For by killing, he unjustly and with the greatest force impedes the debtor from satisfying the creditors. Cf. 1367. Nor can the killed man condone these, because he has no power of disposing over the rights of others. But others simply deny this obligation, Lessius l. 2, c. 9, dub. 26; others oblige him only in the case in which the one injuring foresaw the damages of creditors, which certainly is altogether necessary; and others assert that the homicide is not bound to restore to the creditors of the killed man, even if the homicide foresaw their damage, provided he did not intend it. Yet that direct intention, whether it is present or absent, does not change the nature of that externally unjust action toward the creditors, and of the most efficacious cause of their damage. Indeed, if the killing, considered objectively, is not a per se cause of their damages, it certainly is not made such by this extrinsic intention. L. 584, 613, 633, 634, 636; C. B. 843 ff.

Note: Although a homicide is punished with capital punishment, the obligation of restitution passes to the heirs. C. A. 1337. For these succeed both into the rights and into the real debts of the deceased. Yet several judge the heir excused from restitution if compensation of damages is not sought, because then the parties are presumed to condone. L. 631, 705.

Whether he is bound to anything who kills another in a duel? - Resp. Negatively, more probably, whether he was the challenger or the challenged. For the one himself who was killed, by consenting to the duel, placed by his consent the whole necessary and sufficient cause of those damages. Except unless he induced the other by force or grave threats, and thus as though coerced him. L. 638.

To what is the damager bound because of stuprum and fornication? Two things must be distinguished: simple injury and damage. Simple injury is compensated by satisfaction; and this is owed both to the woman who unwillingly suffered stuprum, and, regularly speaking, to her parents; if namely it has become known to the father, and the daughter still remains in the father's family, although she is no longer under paternal power. By satisfaction: namely by asking pardon, showing honor, with humble submission of oneself. L. 641. For merely natural damage, or for lesion of bodily integrity and loss of virginity, nothing, at least more probably, must be restored, because that damage cannot be compensated by money. L. 640. Even for temporal damage which has followed from shameful intercourse, nothing, except the education of the offspring, must be restored when the woman consents to the solicitation; neither to the consenting woman herself, because injury is not done to one knowing and willing, nor to her parents, because no strict right of theirs is violated. Except nevertheless if the fornicator himself reveals the crime, and damage comes to the woman and her parents from the defamation; this certainly must be repaired. C. A. 1328; Gousset 1012; L. 641.

If the violator has violated the girl by force, fraud, deceit, threats, he is bound to repair every damage coming therefrom to her or her parents, because he is the efficacious and unjust cause of this damage. L. 641; C. A. 1328; C. B. 825, 847. Damage must be repaired, namely if the woman, from lost virginity, either can no longer marry, or cannot enter except into worse marriage. But damage from this is present if the stuprum is revealed, by no means if it remains hidden; and therefore restitution then ceases. But if it is revealed by the fault of the woman, although she herself suffered force, she must impute the damage to herself. But if it is revealed by the fault of the man, he is bound to compensate the damage, although the woman consented and had already been corrupted. But if it is revealed by the fault neither of the man nor of the woman, and the woman was unwillingly oppressed, the man took upon himself the danger of damage and is bound to restitution. L. 640, 641, 642, 646.

Restitution consists in this: that the man either dower the woman or take her as wife. Dower: namely if she has no dowry; or, if she has an insufficient one, that he increase it so that the woman can marry equally well. Take her: if namely the woman wishes, lest injury be added to injury if she is coerced. But it belongs to the woman to choose either to accept dowry or to enter marriage; for she cannot be compelled to accept dowry, since the damage inflicted cannot otherwise be repaired more to equality than by marriage entered into; and if the woman wishes marriage, the man, of himself, is bound to marry her in the forum of conscience, especially if he promised marriage, or if the girl whom he seduced conceived thereby, to impede scandal and to secure the lot of the child. Lugo, Resp. Mor., l. 1, d. 44. Yet, because coerced marriages often have an evil outcome, hence doctors commonly teach that it suffices if the man dower the woman, so that she can marry equally well; and, they say, the man is bound to marriage only if he cannot dower the woman, provided he can do this without far greater damage to himself, as, e.g., if the woman is of far inferior condition, if great scandal is feared from the marriage. But dowry is owed only to the woman whose interest it is to marry, and begins to be owed from the time when it is sought. Wherefore, if it has not been sought, and the woman marries equally well or dies, nothing is owed. - L. 641, 642, 644, 648, 649; l. 6, n. 104, 851; Lugo d. 12, nn. 8, 9, 11, 12, 14, 16, 17, 18; Resp. Mor. l. 6, d. 19; C. L. 2391. Each is bound to recognize and feed the son born, because he is the son of each. If the son cannot be recognized without infamy, and the woman suffered force, the man alone is bound to feed him, C. A. 1328; but if the woman makes gain from her body, she alone is bound to feed the son. But in default of the violator, the mother must undertake care of the son, although she admitted no fault, because she is the mother. But then she preserves recourse against the corruptor, who is bound to compensate her for all expenses which she made on the occasion of the offspring.

But if the woman consented to the sin, according to Roman Law the mother is bound to feed the infant for three years, and afterward the father must provide for him. According to C. I. and C. G. nothing is expressly established. Yet jurists recognize that parents are equally and in solidum obliged at least to feed and educate legally recognized children. This is drawn from C. I. 138; C. G. 203. According to C. A. 139, 141, 143, 163, 166 ff.; C. H. 165; C. B. 1707-1709, 1715, the father is principally obliged, and in his default the mother. But even if the children have not been recognized, nevertheless by natural law the same obligation falls on them. - Carrière 1371; Gousset 1016. According to C. B. 1717, an inquiry of paternity is had, and in cited arts. 1707-1709, 1715, there are obligations, toward the son, of the mother; and, toward the son and mother, of the father. Likewise according to C. He. 302 ff., the mother and son have the right of inquiring concerning the father; and the same obligations of the father toward the son and toward the mother are declared, and in the case also in which he promised marriage to the mother before intercourse. According to C. A. 163, 164, unless he confesses, the father is presumed to be he who had intercourse with the mother at a time apt for conception of the offspring. And the proof is full if his name has been duly consigned in the books of the baptized, with the testimony of the pastor and godparent added. According to C. H. 134 ff., the father and mother are bound to recognize a natural son when some writing of theirs is undoubtedly present, by which they expressly recognize their paternity or maternity; and when, as regards the father, the son is in continuous possession of the status of natural son of the required father, proved by direct acts of the same father or of his family; and when, as regards the mother, the fact of childbirth and the identity of the son are fully proved. A recognized natural son has a right not only to food, but indeed also to a hereditary portion which is owed to him according to the same Code, art. 840. Yet a recognized natural son is of a distinct condition with respect to a legitimated natural son. For the latter succeeds in the first place, and the recognized son in the third place after descendants and after ascendants, art. 807.

To what is the damager bound because of adultery? - Whatever has come to an illegitimate son, as though legitimate, from a false cause must be restored. Hence "there must be restored for the expenses which the husband makes in the food of another's offspring. Likewise what for that cause he gives to him, or leaves after death, which indeed must be rendered to the other sons or coheirs. Likewise if the consanguineous relatives of the husband, thinking the son to be legitimate, give or leave something to him with that in view. For all these things they do and spend from a false cause, and the unjust deceit of the adulterer." Lugo d. 13, n. 2, 34 ff.

On the contrary, what comes in any way to the adulterine son from the mother and maternal consanguineous relatives, by donation, legacy, testament, must not be restored. But both the adulterine son himself and his adulterous parents must restore. The adulterine son must restore from the thing unjustly accepted, and therefore he must restore those things which he still has, or their equivalent in which he has been unjustly made richer. - The parents must restore from unjust damaging, and therefore they must compensate the damage which follows per se and as it were necessarily from the adulterine son being held as legitimate, namely the expenses made by the husband, or by his ascendants, for feeding, sustaining, and educating the adulterine son; and those things which the adulterine son received from them, not from other consanguineous relatives, by gift, testament, succession.

What he received from other consanguineous relatives as brother or nephew is accidental. - Lugo d. 13, nn. 37, 40; L. 659. But the parents must restore, namely 1. the adulteress, unless she was unwillingly oppressed, by leaving more to the legitimate children, by living more sparingly, by administering the family property more diligently; 2. the adulterer, unless the mother could easily have removed the son. But each is held in solidum, if the crime was voluntary on each side, because the whole must be imputed to each.

If the adulterer extorted the consent of the woman by force or grave fear, he alone is held to repair the whole damage. Lugo d. 13, nn. 9, 13; Less. l. 2, c. 10, dub. 6, 7; L. 659; C. B. 826, 847. But the son must restore if it is certain and evident to him that he is adulterine. Likewise his parents must restore if it is certain and evident that he was conceived from adultery. - Lugo d. 10, n. 17.

Restitution must be made to those who expended or gave, and, when they are deceased, to their heirs; restitution must likewise be made to the legitimate children injured because of the adulterine son, if the illegitimate son accepted the inheritance together with the legitimate ones. L. 659. A cause justly excusing from the aforesaid restitution is if it cannot be made without grave danger and damage to life, liberty, or reputation. Lugo d. 13, n. 58; L. 653. If the crime has become known to the husband, they must compensate the personal injury by asking pardon, by signs of sorrow and submission, and by other things of this kind. Ithur., Cas. 6. If no offspring followed, no restitution is to be made. For then by adultery no damage is inflicted, but only simple injury to the person.

What in doubt whether the offspring is the husband's or the adulterer's, or from such adulterer rather than from some other? Resp. To the 1st: More probably, the adulterers are held to nothing, because the damage is not established. L. 657; Lugo d. 13, n. 17, and many others against others who say restitution must be made proportionally. Resp. To the 2nd: The first opinion holds that each adulterer is held to restitution proportionally. The reason is that the damage is certain, and it is established that it was done by one or the other; moreover, each is an efficacious and unjust cause of the uncertainty which prevents compensation from being demanded determinately from one. La-Croix l. 3, p. 1, n. 704; p. 2, n. 337; Lugo n. 19; Roncaglia c. 2, q. 3. The second opinion denies, because a certain burden cannot be imposed where the obligation is doubtful. Nevertheless, except if the second adulterer adverted, at least implicitly, that by his sin he would be the cause of uncertainty. Likewise, if the adulterers perpetrated adultery by common counsel, or if neither was ignorant that the woman had already been known by another. L. 658. - Elbel, de Actib. human., 161 ff.; cf. here 1369; C. B. 830.

Whether the woman is bound to reveal her crime if she cannot repair the damage in another way? - Resp. Negatively, generally speaking. The reason is 1. because commonly this revelation cannot be made without great infamy for the woman, and often without danger of death, or perpetual hatred, or other grave evils. 2. Because, even with such a means employed, she could repair the damage only with difficulty, especially since the son is not bound to give faith to the mother. Cf. 1380. They commonly except if the mother is of ruined reputation, etc. L. 653. "To the woman who, while her husband is ignorant, conceived offspring from adultery, although she fears to confess this to her husband, penance is not to be denied.... But fitting satisfaction must be imposed on her by a discreet priest." C. Officiis 9, de Poenit. et remiss.; St. Thomas, Quodl. 5, a. 16.

Whether the son is bound to believe the mother even swearing that he is illegitimate? - Resp. Negatively, because from law and common sense no one is bound to believe one witness, even of very proved faith. Yet it is otherwise if besides the testimony of the mother evident indications are added, e.g., the absence of the father for a long time. L. 654.

Whether, if adulterers or fornicators were wealthy, and sent the offspring to a foundling hospital, they would be bound to repay the expenses? - There is controversy.

The first opinion affirms. The reason is that foundling hospitals are instituted in favor of infants, not of parents; nor are their founders to be presumed to have wished to exempt the rich from paying expenses. Lugo d. 13, n. 3; Bouvier, de Restit., p. 2, art. 2; Carrière n. 1373; Rousselot, opusc. de Sexto Praec. - The second opinion denies, because those foundling hospitals were erected for all infants indiscriminately who are cast off by parents, whether they pertain to rich or to poor progenitors. Nor is it an obstacle that subsidies are furnished by the Government or Municipality for those little children, because these are generally attributed for abandoned little children, without attention to parents. In addition, hospices of this kind were instituted for this end, that illegitimate infants be freed from the danger of death, both eternal and temporal, to which they would be especially exposed unless they were received in those pious places. For how many impious and barbarous parents has fear of infamy driven either to procure the abortion of their offspring, or to inflict death on it? Moreover, the children of the rich no less than the children of the poor would incur such danger. St. Lig. 656, who thinks this opinion more probable.

To what are soldiers bound because of damage inflicted on the occasion of military service? - Soldiers are held to nothing by reason of damage in common action, unless the injustice of the war is established to them, because they are not formally unjust damagers. - But soldiers in an evidently unjust war are held concerning all damages which they inflicted by private action; and each is held proportionally concerning damages inflicted by the whole army, unless they were compelled to wage war from grave fear; for then they did not exercise influence into the whole damage either by real action or by common conspiracy. But commanders or Princes are held primarily and in solidum concerning the whole damage inflicted by the army, because they are truly commanding; or, if they did not command the damage, they were bound from office to prevent it. - Lugo, Resp. Mor., l. 6, d. 16.

Whether individual soldiers are held in solidum concerning the whole damage inflicted by the army, in default of others? - Resp. Negatively, more probably, because the individuals are not the cause of the whole damage, but only of a part. For individuals are neither the sufficient nor the necessary cause of the whole damage. Moreover, in practice they would be excused from absolute impotence.

To what are conscripted soldiers who are deserters bound? - They are bound of themselves to return to the camp from obedience or from legal justice. The common good itself of public security to be protected demands military service to be furnished by citizens. For society has the right of its own conservation, and consequently to the necessary means, so that it may be defended from internal and external enemies. Moreover, military force is a means altogether necessary for this. Wherefore military laws of themselves are altogether just, and citizens are bound to obey them. But it is clear that for this law of military service to be just, more soldiers must not be required than are necessary for the security of the republic; and if sufficient volunteer soldiers are present, others should not be compelled to military service, since this is not done without damage to them and their families. But clerics, religious, and sons altogether necessary for feeding a family are to be exempted from the law of military service.

There are some who hold that the law of military service is merely penal, and that soldiers who desert the army sin in nothing. But this is altogether false, since the necessity of the very existence and common good of civil society requires an army, and another more sacred obligation is also added from the oath to be furnished. L. l. 1, n. 147; l. 3, n. 616. Except: 1. If they would meet excessive danger to salvation, e.g., if means of confessing were not available, etc. 2. If returning, they would be punished with death, galleys, or other most grave penalties. 3. If the war is evidently unjust. But certainly deserters are held to no restitution whenever the law does not require others in their place, because they in no way injure commutative justice, since they inflict damage on no other person. But it would be otherwise if others because of them had to undergo the burden of military service.

To what are those bound who hired themselves for others and then deserted military service? - Of themselves they are bound to restore the price accepted to him from whom they accepted it, because there is lacking to them the reason for accepting the money, which is paid only because of the burden of military service. Yet this holds only where he who hired a soldier in his own place is exposed to the danger of undergoing military service. For with this danger excluded, although the deserter does not undergo the burden of military service, he freed the hirer from this burden of military service, which the hirer in fact intended in that hiring.

To what are those not yet enrolled in the military bound, who withdraw themselves from it without just causes? Hired soldiers who by contract and agreed wage have obliged themselves to military service are held by commutative justice to follow it. If they do not furnish it, they are held to restitution and reparation of damage. - Conscripted soldiers who corrupt magistrates or physicians so that they may be declared unfit by them are certainly held to restitution if others must therefore undergo military service in their place. For they are cooperators, as commanding, or counseling, or in some other way, in injustice; for magistrates and physicians are obliged from quasi-contract. Those who by lies, frauds, or prior mutilation deceive the magistrates, according to the more common opinion, are obliged to restitution. The reason is that other exempt young men have a strict right that such means not be employed with their detriment; and those required by lot cannot decline the burden of military service legitimately imposed on them without strict injury, since the law or lots established by law constitute a strict right, by requiring some and exempting others from military service. Bouvier, de Restitutione, q. 2, art. 2. But they say that they are not the cause, but only the occasion of the damage which those suffer, for the efficacious cause of the damage is the military law. But this is false; the law alone is not the cause of the damage. And certainly, if they had observed the law, others would not be conscripted; but the cause of the damage is at the same time the law and the fact of those conscripted against the law. Wherefore they are not held to restitution if by law all apt young men are assumed to military service, because then they themselves inflict damage on no one. But practically speaking, restitution often is not to be urged in the preceding cases, either because those who use the aforesaid frauds do not believe that they sin against justice and it would be difficult to persuade them, or because it is morally impossible to repair the damage inflicted. He who would betake himself to another country to evade military service, so that he might live there, would in no way sin, because while absent he would not be bound by the law of his homeland, since the law cannot be extended outside its own territory. But those already designated for military service who withdraw from it, or obtain exemption without true causes, if no one is to be required in their place by law, sin against legal justice; yet they are held to no restitution. Gousset 1002. Cf. here 234.

But whether it is opposed to distributive justice that only families which have sons fit for military service undergo this burden? Several affirm, and therefore they would then wish that another burden be imposed on rich families if they do not have sons fit for military service. But how can this be opposed to distributive justice, if certain families do not have sons fit for military service and therefore are exempted from this burden? Since this can happen in advance to any family, the condition of all is equal. Otherwise distributive justice would be injured not only as regards families not having sons fit for military service, but also as regards the young men themselves, of whom some are fit and others are altogether unfit for military service. And then, with military service removed, a nation certainly would not endure one day in its being, and would be absorbed by a more powerful nation which desires to extend its dominion. And, by the same reason, all taxes would also have to be abolished, because all would be unjust. For those who have nothing pay no tax.

657. • An unjust damager is he who injures another's right and harms the neighbor in his goods, yet does not thereby become richer.

A twofold fault is distinguished by which damage can be inflicted, namely theological fault and juridical fault. - Theological fault is that which includes an offense of God, that is, formal sin, whether mortal or venial. - But juridical fault is an omission of diligence from which damage comes to another, whether it is a formal sin or not. - St. Lig., n. 549.

But juridical fault, from the common interpretation of Roman Law, is either broad, slight, or slightest. Broad fault is the omission of diligence which men commonly are accustomed to apply in similar business. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to apply. The slightest fault is the omission of diligence which only the most prudent and most diligent are accustomed to apply. But this distinction of faults is not expressly commemorated in French law ¹.

¹ It is supposed, however, when for diverse circumstances of the thing the same code requires lesser or greater diligence. See art. 1137 and art. 1927, compared with 1928.

658. Principles. - I. An unjust damager is held to restore 1. the whole equivalent of the thing damaged; thus, for example, if someone culpably burns another's house, he must repay its whole price to the owner; 2. the whole equivalent of damages foreseen besides the damage of the thing, if any have come from it. Hence, for example, if a craftsman is compelled for some time to omit his customary work because you destroyed the instrument necessary to him, you are held to compensate him not only for the value of the instrument, but also for the ceasing profit.

The reason for this principle is plain from what was said, n. 532 and 626. For the injured owner must be made wholly unharmed. But for this it is not enough if the damager pays him the intrinsic price for the thing, when the other has suffered other detriments from the privation of his thing; since he would not recover all that he lost from the unjust damage. Nor is it an obstacle that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility received from another's thing, but from the damage inflicted.

659. • II. In order that a damaging action induce an obligation of restitution, by the law of nature, a threefold condition is required, namely that it be unjust, an efficacious cause of the damage, and theologically culpable; that is, that it be unjust truly, efficaciously, and formally.

1. Unjust. For the obligation of restitution necessarily supposes the strict right of another violated. But strict right cannot be violated except through an unjust action, or one opposed to commutative justice, according to what was said above, n. 532, etc.

2. An efficacious cause of the damage, namely 1. that the action influence the damage through itself, so that this damage is truly judged to follow from it; 2. that it can be imputed to such an agent. The reason for each is clear. For an action cannot be imputed to anyone unless it is his own; nor can the detriment of an action be ascribed to anyone unless his action was the true and efficacious cause of the detriment physically and morally.

But this happens when an action is posited which from its nature, or from the circumstances, has at least a probable connection with the damage. Hence 1. a merely occasional cause of the damage is not sufficient for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on occasion of a theft perpetrated by you, another is accused and condemned, you are held by no obligation of repairing his damage. Nor 2. is an accidental cause sufficient for restitution; for this is that which, considered in itself and with the circumstances attended to, does not have a probable connection with the event, and therefore must not be called an efficacious cause. Hence, if you hand a sword to Titius without probable foresight of his abuse of it, you are not guilty of injustice if he commits homicide with that sword.

3. Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless an injury was committed in the same forum; nor can conscience be bound by an obligation of repairing an injury which it itself did not bring about. Otherwise even sleepers and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. But there is no injury in the internal forum where there is no theological fault; for to injury there is required a will of harming at least indirect, or some foresight, at least confused, of unjust damage. Therefore, etc. - St. Lig., n. 551 and following; Hom. apost., n. 39 and 41.

660. • III. Nevertheless even from merely juridical fault there can be an obligation of restoring in conscience after the sentence of a judge. For a just sentence of a judge must be obeyed; otherwise laws would not provide for public security, and would be empty. But the sentence of which we are speaking is just. For that law is borne for the common good and tends to make men more cautious, lest they inflict damage on others. Besides, before every event it favors all citizens equally. Therefore no one can complain about it. Therefore, etc. Thus commonly. - Billuart, diss. 8, art. 4. - St. Lig., n. 554.

661. Questions. - Q. 1. Whether theological fault is required for inducing an obligation of restitution for damage inflicted on another's thing, which was destined by some CONTRACT, for example, of leasing, deposit, or loan, etc.?

Resp. There is a twofold probable sentence. The first sentence, which appears more probable, affirms absolutely that theological fault is required. The reason is that merely juridical fault does not suffice for inducing an obligation in conscience, as is clear from what was said above in principle II, unless a special pact has intervened. But concerning such a pact there is no proof at all; indeed it is not presumed that the contracting party wished in conscience, under grave obligation, to undertake so great an obligation with only juridical fault. - Thus Lugo, D. 8, n. 106. - Lacroix, n. 177. - Roncaglia; and St. Lig., n. 554, calls this sentence very probable ².

² Card. De Lugo, whom St. Alphonsus follows (ibid., n. 554), although he admits (De Iust., Disp. 8, n. 100) that even without theological fault there can be an obligation of repairing damages on account of slight or even slightest fault, whether this happens by force of an explicit pact among the contracting parties, or by authority of laws which establish the same by way either of legal penalty, or conventional penalty, or insurance, nevertheless denies with others (ibid., n. 102-104) that such an obligation, considered by natural law alone, is present. Indeed he adds (ibid., n. 106-110), from common sense, that neither is this the intention of the contracting parties, nor do the laws according to the common interpretation exact it.

Nevertheless he also adds other things (ibid., n. 110-113), by which it is shown that the practical conclusions of the second sentence do not oppose the preceding sentence. This indeed is nothing wonderful, because Antoine did not advert to it. For what good would you seek or expect from such a one, where solid doctrine and criterion are needed? And indeed, by what pact does Antoine (De Iust., Cap. 3, q. 5, Resp. 4) reconcile these two things, namely that someone omits the diligence due from the nature of the thing and from a pact at least implicit in guarding another's thing, and nevertheless is wholly free from theological fault? Therefore Lugo skillfully warns that, setting aside the case of forgetfulness or inadvertence, in which, short of theological fault, at least grave, there is no obligation of restitution in the forum of conscience before the sentence of a judge, it never happens that there is an obligation of restoring from juridical fault which is not joined with theological fault, and indeed with one equally grave for imposing the burden. The reason is sufficiently manifest, because negligence in the office undertaken of guarding another's thing is, from its genus, mortal fault.

Nor should you object that mortal sin is conceived with difficulty when the juridical fault is slight, and much more if it is the slightest. For slight or slightest juridical fault can have place when someone is held by force and nature of the contract to apply that diligence which is fitting to a business demanding more exact or most exact diligence, and which for that reason, with the nature of this business considered, can be called common, since it is commonly required for such a business. Therefore if the nature of the contract imposes the obligation of the most exact diligence, it is nothing wonderful that its omission imports grave guilt.

Thus indeed Card. De Lugo, whose doctrine St. Alphonsus both embraces and adorns with this encomium (Lib. 3, n. 552): Thus, he says, the most learned Lugo, who after St. Thomas can easily be called princeps among the other Theologians, and not rashly; since in discussing doubts this Author, often with no one going before him, places the sickle so to the root that the reasons which he himself brings forward can scarcely be solved.

The second sentence denies that theological fault is necessary in order that someone be subject to the burden of restitution, if you except the case in which the contract yields to the sole utility of one of the contracting parties, for example, of him who received the thing as a loan, etc. The reason is that when another's thing is granted to someone for his utility, equity demands that he guard it very diligently. Hence there seems to intervene an implicit pact by which the holder of the thing obligates himself to guard it with special care, or to repair the detriment which the thing could undergo from omission of this care. - Antoine, quest. 5. - Collet, c. 2, art. 4, etc.

662. • Q. 2. Whether theological fault is required for the obligation of restitution on account of damage inflicted on another in fulfilling an office, or in observing a QUASI CONTRACT? For example, if a physician from inculpable error has given a harmful remedy to the sick person?

Resp. More probably affirmatively, as in the preceding question. The reason is 1. because an obligation of restoring on account of merely juridical fault in an office, or in a quasi contract, cannot be proved either from natural law, or from positive law, or from the convention of the parties; 2. because such an obligation would be harmful to the public good; for thence it would happen that upright and God-fearing men would be kept away from undertaking the affairs of others, and also from public offices. - St. Lig., n. 555. ³. - Billuart, diss. 8, art. 7. - Lacroix, n. 184, and Antoine himself also, quest. 4.

³ St. Alphonsus namely, after Lugo (De Iust., Disp. 8, n. 93), holds as probable that these are held only from broad juridical fault, and grave theological fault.

But what the same St. Alphonsus adds (same, n. 555) with Laymann, that he who accepts a stipend is held from slight fault, signifies nothing except that this person is held to greater diligence; and therefore St. Alphonsus condemns him of grave fault if he does not apply this.

Yet the Doctors commonly except one case, says Lugo (ibid., n. 90), namely, they oblige to repair damage from the slightest fault, when someone professes himself to be most diligent and most skilled, and offers himself as such to someone seeking not a mediocre but a most diligent artisan. Yet he limits this doctrine unless he receives only the common stipend. But the reason of the resolution is plain from what was premised in the preceding Note.

Q. 3. Whether he is held to restitution who indeed inculpably placed the cause of damage, but afterwards did not impede it, although he could have impeded it?

Resp. Affirmatively. The reason is that each one is held from justice to prevent his action from harming the neighbor; therefore he is also held to prevent the evil following from his action from persevering. - Thus commonly. - St. Lig., n. 564.

Hence 1. he who inculpably set fire beneath another's house, when he adverts to the danger of fire, is held from justice to impede it, if he can; 2. likewise the pharmacist who by error sold poison for medicine must from justice warn the buyer; 3. likewise he who by error said something grave against the reputation of another is held afterwards, when the error has been known, to correct it; and if he does not do so, he sins gravely and is obligated to the reparation of all damages which come from this.

663. • Q. 4. Whether damage following from a cause indeed culpably placed, but already retracted when the damage is inflicted, must be repaired?

Resp. Affirmatively, at least if that damage was determined and foreknown in species. Thus, for example, if someone voluntarily gave poison to another, and afterwards cannot impede its effect, however much, repentant of the deed, he may wish it, he will be held to repair the damages coming from the homicide. The reason is that he who placed the cause of the damage always continues to influence it efficaciously. - Thus commonly ⁴.

⁴ Hence it happens that retraction does not even prevent this, namely that the effect afterwards perhaps following induces irregularity or some censure. Suarez had already adverted to this (De Peccat., Disp. 3, Sect. 4, n. 7), and Lugo afterwards (De Poenit., Disp. 16, n. 445) hands it down as the common sentence: However much, he says, the past will may in fact be retracted, still, if the effect of death afterwards follows, he who had given poison will incur irregularity or excommunication, according to the common sentence of nearly all, as if the will had not been retracted; because, namely, by that retraction it is not taken away that the effect followed as voluntary..., whence it absolutely denominates him a homicide; otherwise it would not render him irregular.

Nor is the reason valid which St. Alphonsus reports against this from the Salmanticenses (De Cens., Cap. 1, n. 155; Lib. 7, n. 40), namely that censures are not borne except against the contumacious; but he is not such who has already retracted the evil will. For it is answered that the contumacy of will which is required for incurring censures is that by which someone knowingly and willingly transgresses the law, not the lack of retraction before the ultimate effect; for a censure does not punish the sin of an evil will persevering up to the consummation of the effect, but the sin of a will inflicting death through the positing of a cause, although it was expedient and wisely provided by the Church that a penalty of this kind not be incurred unless the effect followed, lest, namely, on account of the uncertain event of the crime, the censure be uncertain, and lest it happen that one be regarded as excommunicated on account of homicide who afterwards was detected as not guilty of homicide, since death had not followed.

Q. 5. Whether damage must be repaired which has indeed been inflicted by accident, but while applying oneself to an illicit work?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even in a confused way. Nor does it matter that the action was illicit; for this pertains nothing to the account of justice. Thus a Cleric who, while applying himself to hunting against the prohibition of the Church, kills a man instead of a wild beast, is no more guilty of injustice than a layman who had done this. Indeed damage inflicted by accident need not even be repaired, even if it happened on the occasion of an unjust action, because it has no connection with that action. Hence he is not held to restitution who kills Titius, whom he did not at all see nor know to be present, while he was directing a gun at Caius. - Thus very commonly. - Vogler, n. 170. - Lugo, D. 8, n. 72 and 82. - St. Lig., Hom. apost., n. 39.

664. • Q. 6. Whether you are held to repair damage which you brought upon someone from error, while you intended to harm another; for example, if you burn the house of Caius, which you think is the house of Titius your enemy?

Resp. It seems that it must be affirmed. For in that case all the conditions required for urging restitution are present, namely an unjust action, an efficacious cause of damage, and theological fault. Nor should you say that your action is not unjust relatively to Caius, whose damage you did not will; for you intended to destroy that thing, wholly determined. But by destroying it you undertook the burden of repairing that same thing. But it matters nothing whose it may be; for the question is not about the name, but about the thing. Therefore the error does not affect the substance of the act, but something merely accidental. - Thus commonly, as St. Lig. admits, although he dissents. - Vogler, n. 202. - Bonacina. - Sanchez. - Busemb., etc.

Some nevertheless deny with St. Alph., n. 629, namely Lugo, D. 17, n. 75. - Lacroix, n. 200 and following. - Their reason is that the action was not voluntary toward the damaged person, since it proceeded from inculpable ignorance of his right. But from what has been said this reason seems to have little force ⁵.

⁵ ** The VV. (p. 923 in note) object that the opinion of St. Alphonsus rests on this unshaken principle: In order that you be held to restitution, it is required and suffices that your damaging action be at once affectively and effectively, or formally and materially, unjust; if either of these is lacking, the obligation of restoring ceases.

Resp. St. Alphonsus (Lib. 3, n. 556), with Busembaum, thus defines and distinguishes material and formal injuriousness: Damaging injuriousness is twofold, namely material, as, for example, when someone destroys, accepts, or retains another's thing in good faith, that is, judging probably that this is licit for him, or that it is his own; formal, by which someone destroys, accepts, or retains another's thing in bad faith, that is, when he knows or can and ought to know that this is not licit for him and that the thing is not his own. See Less., Laym., Bonacin. But, so that we may insist on the example which both St. Alphonsus (Lib. 3, n. 629) and the VV. use, whoever burns and destroys the house of a friend, thinking that it is an enemy's, certainly does not fail to know that the house which he destroys is another's; and this is true even if it is not the house of him whose he believes it to be. Therefore knowingly and willingly he burns and destroys a thing which he knows is not his own. But from the definition this is not material but formal damaging injuriousness.

But the argument which is commonly brought against this (see St. Alph. and the VV. in the cited places), namely that from the killing of a friend who was thought to be another, namely an enemy, deceit is absent, because in no way did you intend to kill Paul the friend; indeed rather you would in no way have killed him if you had known that he was Paul the friend, this argument, I say, Molina had already anticipated thus (Tom. 4, Tr. 3, Disp. 30, n. 5): To the argument of the contrary opinion, he says, the consequence must be denied. For although that homicide did not have deceit with comparison to Paul, nevertheless he had deceit as regards that killing, insofar as it was the killing of a certain man, whom, beyond the estimation of the one killing so unjustly and with deceit, it happened to be Paul. But it is enough that that homicide was committed simply with deceit.

Molina (ibid., n. 2) confirms this response from L. Eum qui 18, § 3, De iniuriis, where it is read thus: If an injury is done to me by him to whom I am unknown, or if someone thinks me to be Lucius Titius, when I am Caius Seius, that which is principal prevails, namely that he wished to do an injury to me; for I am certain, although he thinks me to be other than I am, and therefore I have the action for injuries. But Molina adds: Here you see that the fact that the one bringing injury upon me thinks me to be another man in number than I am does not take away his fault, nor excuse him from penalty, because in reality he intends to do an injury, and does it with deceit.

But he had first explained the matter thus (ibid.): In that killing of Paul two things must be considered. One is the unjust killing of a man; but the other is of this man in singular, suppose Paul... But that killing, insofar as it has the account of the unjust killing of a man, was deceitful, because it was done from the intention of committing homicide concerning that man. But it is by accident that that killing does not have the account of deceitful homicide because it terminated at this man in singular.

It is confirmed and declared with the same Molina (ibid.): When, he says, in some delict there is knowledge of the delict joined with invincible ignorance of some circumstance which adds to the delict either gravity or a diverse species, then that ignorance, just as it excuses from the fault which results from that circumstance, so excuses from the penalty which corresponds to the circumstance. But just as this ignorance does not excuse from fault for that part of which knowledge is present, so neither can it excuse from the corresponding penalty and consequent burdens.

And hence it is plain how far that which St. Alphonsus (l.c.) replies after others has force: It is answered, he says, that this proceeds in the external forum, where the presumption of knowledge of the injured person stands against the one injuring, to whom belief is by no means given if he asserts that he wished to offend another. For in the external forum it is not a presumed delict that is condemned and punished, but a delict perpetrated in the unjust killing of a man, whoever this may have been. Indeed it so far departs from the true that the forum relies on such a presumption of knowledge and takes no account of an error of this kind, that the laws expressly establish the contrary. Thus (L. Illud 3, § 4, ff. de iniuriis): If someone struck a free man, while he thinks him his own slave, he is in such a case that he is not held for injuries. And again (L. Si cum servo 4, ff. same title): If, when I wished to strike my slave with a fist, I unwillingly struck you standing next to him, I am not held for injuries. Therefore even the external forum takes account of this error. Yet the distinction between the preceding and this case Gotofredus indicates very well in a note: For, he says, my intention was of applying myself to a legitimate thing, that is, of punishing a slave. And Molina had gone before (l.c., n. 3), saying: He who thus intended to strike his own slave intended to do no injury, but was using his own right, wishing to punish his own slave. But truly it cannot be said that he used his own right or did not intend to do an injury, who wished to kill or strike an enemy, or wished to burn the house of his enemy. But whoever, knowing that he inflicts a damaging injury by his act, inflicts it with a wholly free will, surely takes upon himself the consequences of his action, which are certainly formally unjust.

It could easily be shown here by what route both Tamburini and Sporer, and some others after them, were driven sideways by certain arguments sought merely from some parity, which indeed is very easily detected as limping. But these arguments cannot be suitable to a brief Note.

665. • Q. 7. To what is he held who indeed inflicted grave damage, but with slight fault, for example, from defect of advertence, etc.?

Resp. More probably he is held to nothing. For he cannot be obligated either under grave or under light obligation: 1. not under grave obligation, for a grave obligation has no proportion with slight fault; 2. nor under light obligation, because a light obligation has no proportion with a grave thing. - Thus St. Lig., n. 552. - Lugo, D. 8, n. 56. - Vogler, n. 109. - Lessius. - Roncaglia, etc.

Others, however, oblige him under grave obligation to repair the whole damage. - Others indeed to the whole, but under light obligation. - Finally others to some part only, according to the proportion of the fault. But these sentences seem to introduce the greatest inconveniences.

666. • Q. 8. Whether he who inflicted grave damage through several venial faults deliberately committed is held under grave obligation to repair that whole damage?

Resp. 1. Affirmatively, if the damage was inflicted on the same person, although the damager did not sin gravely. The reason is that he is held to repair the whole damage committed voluntarily and freely. But the whole damage was freely inflicted, and besides is grave in the hypothesis; therefore that whole damage ⁶ must be repaired under grave obligation. - Vogler, n. 124 and 126. - Lugo, D. 8, n. 69, etc.

⁶ St. Alphonsus nevertheless warns (Lib. 3, n. 553) that it suffices for avoiding mortal sin that only that small matter which completes grave matter be restored, as Sanchez, Lessius, Vasquez, etc., more probably hold.

Resp. 2. But more probably negatively, if minute damages were inflicted on diverse persons. The reason is that on the one hand no one suffers grave damage, and on the other hand the damager does not become rich by another's thing ⁷. Hence the present case differs from the similar question related above, n. 630, because a thief becomes rich from minute thefts, but not a damager.

⁷ It has already elsewhere been noted that the depravity of theft does not consist in this, that someone becomes rich from another's thing, but that he becomes rich unjustly. But this injustice resides in the violation of another's right, which is present in the same way both if someone becomes richer from the violation of another's right and if he does not become richer, because, for example, either he immediately consumes, or loses, or destroys the thing stolen, or inflicts damage while taking nothing to himself. And since the violation of another's right carries with it the obligation of repairing that same right, this is present and must be present both if the violator became richer from it and if he did not become richer. Since these things are so, as regards the present matter it ought to be evident that he who has harmed several by minute damages in such a way that the collected matter of all the damages together must be judged grave is in absolutely the same condition and therefore is bound by the same obligation of restoring, both if he has been made richer from the matter of the several thefts, and if he has by no means been made more rich, since either he at once consumed what was gradually stolen, or harmed others while stealing nothing for himself. Therefore if any obligation of restoring is present on account of minute damages inflicted gradually on several by thefts from which someone has been made richer, the same obligation must be said to be present even when from the inflicted damages no utility has accrued to the damager. For absolutely the same reason prevails in both cases.

Q. 9. Whether one who thinks from invincible error that the damage inflicted by him is much less than it really is, is held to restore all that damage if afterwards he recognizes the true price; for example, if someone throws into the sea another's gem worth 100, while he believes it to be worth only 40?

Resp. Probably he is held to restore only pro rata of the known damage, because damage is not judged willed which is invincibly unknown. - St. Lig., n. 615. - Elbel, n. 90. - Vogler, n. 189. - Carrière, n. 1151, against others.

Nevertheless there will be an obligation of repairing the whole damage if at some time, on account of a suspicion of greater price arising at least in a confused way, the whole damage becomes voluntary.

667. • Q. 10. Whether an owner is held to repair damage brought upon the neighbor by his animals?

Resp. 1. Affirmatively, if from theological fault he neglected to watch over the animals. For each one from natural right is held diligently to guard his animals, lest they inflict damage on others, just as he ought to take precautions lest detriment come to the neighbor from his own actions.

Resp. 2. But if theological fault has been excluded, he is indeed not held before the sentence of a judge, as is plain from principle II, n. 659; but he is certainly held when sentence has been pronounced, as is clear from principle III.

Q. 11. Whether he is held to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The first sentence, the more probable one, denies it, because he who gives bad example is not the cause of the damage, but a mere occasion. For an evil action does not through itself tend to this, that it should excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflict the damage. - St. Lig., n. 537 and l. 2, n. 45. - Salmant. - Laymann. - Sanchez. - Lugo, etc.

466. Principle: In order that the damager be bound to restore, three conditions are required simultaneously: that his action (under which name the omission of a due action also must be understood) be unjust, an efficacious cause of the damage, and theologically culpable.

1. The damaging action must be unjust, that is, a violation of the strict right of another, whether in a thing or to a thing; otherwise, there would not be an injury properly so called, nor therefore an obligation of restoring. In truth, if the action is opposed only to charity, equity, or another virtue, it can indeed be gravely sinful, but it does not require the reparation of a right which in fact was not violated.

(A) He is not bound to restitution who, while he uses his own right, harms others: e.g., he who by legitimately trading is the cause why other merchants sell less; or he who, fleeing from enemies, tramples another's crops underfoot; or who by persuasions and counsels persuades another not to make a testament in favor of some person; likewise he who digs a deep pit on his own property, into which a stranger falls.

(B) On the contrary, he who by unjust means, namely by force, fraud, lying, or unjust detraction, impedes another from attaining some good to which this other has a strict right, is bound to restitution; thus the advocate who impedes a creditor from obtaining payment of some debt; the heir who prevents the notary (notaire) from writing the testament which the dying man wishes to make in favor of another; the merchant who harms the affairs of the neighbor by intercepting his letters, or by spreading calumnies against him; likewise he who by calumnies impedes a superior from conferring a benefice or office upon someone worthy, who otherwise would have been selected: for although this one does not have a strict right that he be selected, he does have a strict right not to be excluded from this office by unjust means.

467. (C) The obligation of restoring of itself does not arise from distributive justice, because, although the public good demands that offices and benefices be distributed to the more worthy, candidates do not have a strict and rigorous right to obtaining these offices; hence their right is not strictly violated.

Yet there are cases in which the violation of distributive justice accidentally obliges to restitution, namely when the strict right either of individuals or of society is injured. Now it is so:

(a) In a competitive examination: namely if some competitor is unjustly judged by the examiners as unworthy, while in truth he is worthy, he is deprived of his strict right, and therefore place is given to restitution; yet, since not all the worthy are chosen by superiors, the competitor is deprived of a strict right not to the office itself, but to the hope of obtaining it; and therefore restitution in this case will be lesser. - Likewise, if a limited number of competitors is admitted into such or such a school, examiners who unjustly count as worthy one who in truth is not worthy deprive one of the competitors of the strict right which he had of entering the school, and under this head are bound to compensate the damages to him.

But the superior who, among the worthy, does not select the more worthy, does not seem to be strictly bound to restitution, because the more worthy one, although to be preferred to the others both from equity and from the public good, does not have a strict right that he be selected, unless however this has been determined by some law.

468. (b) In the distribution of burdens, e.g., of taxes. Those who knowingly and willingly burden some citizens too much and others less are bound to restitution, because they inflict damage upon certain citizens, or upon the State, according to the various rights which have been injured.

(c) In the distribution of offices. If some superior (president, governor, commander, etc.) knowingly and willingly confers certain offices upon those who are altogether unable to exercise them, by that very fact he is the unjust cause of the damage which arises from this either to society or to individuals; for by choosing such men, he could and ought to have foreseen that these damages would arise, and from his office he is bound to impede them; thus, e.g., if someone were to choose as physician or surgeon of an army one who is altogether unfit for this office.

469. 2. The damaging action must be an efficacious cause of the damage; for this two things are required: that damage was truly inflicted (for a damaging intention does not suffice); that it followed from the action as from its own cause. For he alone is bound to repair damage who is truly the author of the damage; but no one can be called author except he who, whether physically or morally, effects the damage or has influence upon it, or in other words, who is truly the efficient cause, whether total or partial, of that damage.

470. Hence he is not bound to restitution who is only the occasion of damage; for an occasion is not a true cause, but only that upon the placing of which the true cause acts.

Thus, e.g., Peter kills John, and Paul, who is thought to be the author of this homicide, is seized and condemned; Peter, by killing John, is not the cause, but only the occasion, of Paul's death; for the true cause of this death is the judge, who condemned Paul from insufficient motives. - But, if Peter purposely used Paul's garments or weapons so that Paul might be accused of John's killing, he truly is the moral cause, at least partial, of Paul's death, because he used unjust means to deceive the judge; and therefore he is bound to restitution. - But what if the same Peter indeed foresaw and willed that Paul be condemned, although he did not use unjust means to deceive the judges? Certainly he sinned gravely against charity, indeed against justice by an internal affection, namely by desiring that the judges condemn an innocent man; but whether he violated justice externally, so that he is bound to restitution, theologians do not agree; some equate this case with the preceding and answer negatively; but others, more probably, as I think, affirm: for by killing John, he foresaw and willed Paul's condemnation, and, although the judges are the principal cause of the unjust condemnation, he can be held as a cooperator, insofar as he unjustly placed an action from which Paul's death would follow.

471. Nor is he bound to restitution whose action was only a condition sine qua non, or that without which the true cause cannot act.

Titius, e.g., returns to Sempronius a gun, which the latter abuses for killing Caius; an action of this kind could be a condition without which the homicide would not have been committed, but not the true cause of it, which is nothing other than the malice of Sempronius. But otherwise it would have to be said if Titius had furnished the gun to Sempronius for this end, that the latter should kill Caius; for then he would be a partial cause, or cooperator, of the homicide.

472. An action which is only a cause by accident must be held as an efficacious cause; but because the damage cannot be foreseen as probably going to follow, then the action of the agent does not have a moral connection with the evil effect, since the third condition, or theological fault, is lacking.

Thus he who takes away from a miser a thing of slight value, without being able probably to foresee that the miser will die of sadness because of this, is only a cause by accident of his death, since the true cause of this is the depraved affection of the miser; nor therefore is he bound to restitution of the damages arising from the death; - but otherwise, if he foresaw and intended this effect, because then he is an unjust cooperator in the death. Likewise, he who in a remote place lights a fire, which a wind unexpectedly risen casts into crops, is only a cause by accident of this conflagration; otherwise, if he lit the fire when the wind had already risen, so that he could have foreseen the conflagration.

473. Therefore, for judging whether some action is an efficacious cause of damage, attention must be paid to the natural connection between the action and the damage inflicted. If the agent employed means suited to inflicting the damage, he truly is the efficient cause of this damage; but if he did not employ means suited to inflicting it, he is not its efficacious cause. - As regards the influence of intention upon injustice, see n. 288.

474. 3. The damaging action must be culpable. But fault can be twofold: theological, or moral, and juridical. The former is that which is done with advertence on the part of the intellect and consent on the part of the will; - the latter, i.e., merely juridical, is the omission of diligence required by civil laws, which nevertheless, on account of inadvertence or indeliberation, is not imputable before God. Hence any external or internal causes which remove the free voluntary, e.g., ignorance, indeliberation, force, fear, etc., excuse from theological fault; while from juridical fault only those legal causes excuse which can be proved in the external forum, such as defect of reason, coercion, fortuitous event, etc. With these things posited:

475. (A) With natural law considered, apart from contract, there is no strict obligation of repairing damage except from theological fault. For (a) in order that we may be bound by the moral obligation of restoring, the damaging action must proceed from us not only as from a physical cause, but also as from a moral and free cause; but if theological fault is not present, the action does not proceed from the free will, but from a fortuitous event, or from imprudence of which we are not conscious. (b) Moreover, the obligation in conscience of repairing damage, even apart from theological fault, is not necessary for the security of dominion; for the moral obligation of employing common diligence always remains, and this suffices for providing for this security. Indeed such an obligation would be harmful; for it would give place to many anxieties, and thus not a few would abstain from acting, lest perhaps they incur the obligation of repairing damages inadvertently inflicted.

Yet I said, apart from contract, explicit or implicit; for if a pact has intervened concerning repairing damage, in whatever way the thing perishes, this must be stood by, even in conscience, since a pact of this kind is legitimate; e.g., if a maidservant promised that she would pay damages from a fortuitous event; if the thing perished while someone was in culpable delay.

476. (B) Civil laws which decree an obligation of repairing damage from merely juridical fault oblige in conscience, but only after the sentence of the judge. - It is explained: (a) they oblige in conscience, because they are just, since they favor all citizens equally, and render men more vigilant lest they inflict damage upon others; - but after the sentence of the judge, for, on the one hand, it is too hard that someone should of his own accord condemn himself to the reparation of damage which morally is not imputable to him; and on the other, the purpose of the law is sufficiently obtained if the damager from merely juridical fault is bound to repair damage after the sentence of the judge.

(b) Yet, even before the sentence of the judge, charity obliges to the reparation of that damage which is certainly owed from civil law, when the injured person asks this, and moreover cannot have recourse to the judge without grave inconvenience, e.g., without expenses burdensome to him.

Corollaries.

We divide this chapter into four articles: 1. on unjust damaging in general; 2. on cooperative unjust damaging; 3. on unjust damaging by bodily deeds; 4. on unjust damaging by words.

Damaging taken broadly includes also theft and robbery; for the thief and the robber cause damage to a neighbor, and St. Thomas says: "Whoever damages someone seems to take away from him that in which he damages him";¹ nevertheless, according to the stricter acceptance and the one commonly used today, damaging is distinguished from theft and can be defined:

¹ Cf. S. theol. 2, 2, q. 62, a. 4.

91. Definition. Unjust damaging is an action by which someone causes damage to another, without himself taking material profit from it. Therefore the damager causes damage to another and is not himself enriched; but the thief causes damage to another and is himself enriched. Hence, e.g., he who burns another's garment is a damager; but he who takes another's garment away for himself is a thief. Other things being equal, damaging is usually a graver sin than theft, because it often proceeds from hatred of neighbor, whereas theft is usually caused by disordered concupiscence of money, or by the neediness of the one stealing, and by other motives which are not as gravely sinful as hatred of neighbor.

92. Divisions. 1. By reason of the cause, damaging is divided into solitary and cooperative, according as the damager causes damage either by himself alone or with others helping.

Cooperative damaging is worse than solitary damaging, because in it not only justice but also charity toward the neighbor is injured by scandal or cooperation in evil. We shall treat cooperative damaging specially in the following article.

2. By reason of the object, damaging can be a) in supernatural goods, b) in natural goods, whether bodily or spiritual.

The worst damaging is in supernatural goods. Hence he who destroys sanctifying grace, faith, and other supernatural gifts in the soul of his neighbor sins most gravely. Enough has been said of this damaging above, I, n. 605 sqq., in the tract on scandal. But in natural goods damage can be inflicted upon a neighbor in two ways: either by the fact that the neighbor's thing is destroyed by an unjust action or omission (e.g., the neighbor's garment is burned either intentionally or from culpable negligence), or by the fact that the neighbor is unjustly kept from the obtaining of a due good (e.g., someone unjustly induces a father to exclude his son from the inheritance). The natural goods in which unjust damaging can occur are many, e.g., reputation, honor, body, life, fortune, etc.; concerning all of these, something will be said below.

3. By reason of the mode (or also of morality), damaging is either purely material or formal. Formal damaging is called that which is joined with formal sin against commutative justice, or, as they say, which proceeds from theological fault. Thus, e.g., he who knowingly and willingly burns another's house unjustly commits formal damaging. Material damaging is that which in fact causes damage, but involuntarily and therefore without moral fault of the damager. E.g., he who fired a gun wishing to kill a hare and, wholly by chance and without any caution having been neglected, wounds a hidden man, has committed material damaging, but has not sinned formally against justice. This material damaging is indeed sometimes joined with so-called juridical fault, which is nothing other than the omission of that diligence which positive law requires for preventing damage.

Juridical fault is customarily subdivided by authors into broad, light, and very light. Broad juridical fault consists in the omission even of that diligence which ordinarily and moderately prudent and diligent men are accustomed to employ in their operations. Light juridical fault is the omission of diligence which more prudent and more diligent men are accustomed to employ. Very light juridical fault is the omission of diligence which only the most diligent and most careful persons are accustomed to employ in their actions. This threefold subdivision of juridical fault is not found expressed in modern civil codes, which are not accustomed to distinguish except between grave and light negligence.² Juridical fault can be present (although very rarely) without any theological fault; then it is called merely juridical fault, and the damaging caused from it is purely material. Ordinarily, however, juridical fault is joined with theological fault more or less grave, because in reality it is a sin not to employ in our actions that diligence which positive law justly requires.

² Gross and slight negligence. The German Civil Code § 276 establishes: "He acts negligently who leaves out of account the care required in dealings," and § 827: "Whoever, in a state of unconsciousness, or in a state of morbid disturbance of mental activity excluding free determination of the will, causes damage to another, is not responsible for the damage." The Swiss Code has similar things, a. 41 sqq.; the French Code, a. 1382/3; the Italian Code, a. 1153; the Spanish Code, a. 1902 sqq., following in this matter the old Roman law. (Lex Aquilia.)

93. Principle 1. Unjust damaging is not only from its kind a grave sin, but also induces the obligation of restitution, if this threefold condition is present, namely, if it is truly, efficaciously, and formally unjust, or, as others say, if it is unjust, effective of damage, and theologically culpable.

It is explained and proved. That (formal) damaging is from its kind a mortal sin is plain of itself. For it injures virtues obliging gravely, namely charity and justice. But in order that from damaging there truly arise an obligation of restitution, three conditions are required:

94. 1. The damaging action must be truly unjust, i.e., it must injure commutative justice or the strict right of another, whether it is a right in a thing or a right to a thing. Indeed a damaging action can be gravely sinful without inducing an obligation of restitution. E.g., he who from hatred does not save the burning house of an enemy, although he easily can, sins gravely against charity, but is not bound to restore, because the enemy cannot in justice demand that his house be saved by another private man. Therefore it is altogether required that the strict right of the neighbor be injured. Hence the following cases are easily solved:

Resolutions. a) He who by importunate prayers, persuasions, etc., induces a master not to give a stipulated salary to a servant is bound to restitution; for he has injured the servant's strict right to the stipulated salary.

b) He who by prayers, persuasions, etc., induces a rich man not to give alms to a determinate poor man is not bound to restitution. For the poor man (unless he is in extreme necessity) does not have a strict right to alms.

c) He who by detraction, calumny, force, fraud, etc., procured that a rich man not give alms to a determinate poor man is bound to restitution. For although the poor man does not have a strict right to alms, nevertheless he has a strict right not to be impeded from receiving alms by unjust means, such as detraction and calumny. The same holds of him who by fraud, e.g., by sending in a false hope of health, turns a dying man away from making a testament in favor of a third party.

d) He who by detraction, calumny, or other illicit means impedes someone from the obtaining of some good, the accepting or conferring of which is objectively bad, indeed sins on account of the illicit means employed, but is not bound to restitution. In this case the presence of sin is plain of itself, because "a good end does not justify bad means." That there does not exist an obligation of restitution can be perceived from this, that the man impeded from the obtaining of an illicit good indeed had a strict right that detraction, calumny, or other sinful means not be used against him, but he had absolutely no right to the obtaining of the good itself.³ E.g., he who by fraud and a calumnious lie turns a young man away from giving money to a prostitute is not bound to restitution toward the prostitute. For the prostitute, although she has a right that a calumnious lie not be said about her, nevertheless has absolutely no right to receiving money from the lustful young man (at least before fornication has taken place).

³ Cf. Billuart, De iust. diss. 8, a. 12.

95. 2. The damaging action must be efficaciously unjust. Or in other words, the action must be the true cause per se of the damage inflicted or actually following. The reason is that only he who is the true cause or author of that damage, whether by himself or through others induced to this, can be obligated to repair the damage. Hence a strict obligation of restitution does not arise if the action was a) good or indifferent in itself, although the intention of the agent was very bad; b) only a cause per accidens of the damage; c) an occasion of the damage; d) a condition without which not of the damage.

Resolutions. a) A judge condemning an accused man from hatred almost diabolical, but according to just laws, sins gravely against charity on account of his hatred; but because his action is not unjust, he is not bound to restitution.

b) An innkeeper offering wine to a drunken man, foreseeing that in drunkenness the man is going to have great damage, is not bound to repair this damage, because his action was not the cause per se, but only the cause per accidens, of that damage. If, however, the innkeeper directly intends this damage and therefore offers wine so that the man constituted in drunkenness may suffer that damage, then he truly acts unjustly and his action is the cause per se (at least instrumental) of the damage, and therefore he ought to repair the damage caused.

c) A theft committed by Peter gave occasion for suspicion of the crime to fall upon Paul, who from this suffered grave damage. Peter is not bound to restitution, because his theft is not the cause but the occasion of that suspicion. If, however, Peter deliberately directed suspicion of the theft upon Paul, by using, e.g., his garments or tools in the execution of the theft, by hiding the matter of the theft in Paul's room, etc., then he acted unjustly and is bound to restitution. For Paul has a strict right that no one deliberately cause him a wicked suspicion.⁴ A wicked example inducing to damaging can also be held as an occasion and not as a true cause of damage.⁵

d) If someone returns a sword to a man prepared to kill another, he is indeed a condition without which not of this killing, but nevertheless he is not bound to restitution on account of the killing done, because he is not the cause per se of the damage inflicted.

⁴ Cf. St. Alphonsus, Theol. mor. l. 3, n. 635.

⁵ Cf. below n. 103.

96. 3. The damaging action must be formally unjust, or proceed from true theological fault.⁶ The reason is obvious; for without true theological fault or sin admitted, the damaging action is not voluntary. Now an involuntary action imports no morality and no obligation. Moreover, the obligation of restitution arises either from another's thing accepted or from an unjust action. But neither has another's thing been accepted, because the damager has not been made richer, as is supposed, nor was his action unjust, since through defect of will it had no morality. Finally, restitution for the damager is a certain penalty. But penalty supposes fault. Therefore where there is no moral fault, there also is no moral obligation of restitution. From what has been said it appears that there is no obligation of restitution in the following cases:

Resolutions. a) A physician who, from inculpable error, gave a harmful remedy to a sick person neither sinned nor is bound to restitution.

b) A confessor who, from inculpable error, freed a penitent from the obligation of restitution neither sinned nor is bound to reparation of the damage.

c) A man who wholly by chance, without any negligence, kills another neither sinned nor is obligated to reparation of the material damage perhaps inflicted.

⁶ Hence Jhering said very truly: "Not the damage obliges to compensation for damage, but fault." So also the Lex Aquilia. D. lib. 9, tit. 2.

97. On The Gravity Of The Obligation Of Restoring. From grave theological fault there arises a grave obligation of restitution, if, however, the damaging was truly and efficaciously unjust. This is plain from what has been said. But if the theological fault was light, one must first see from what cause it is light: whether from smallness of matter, or from another cause.

If the fault was light from smallness of matter, i.e., from small damage inflicted, there is a light obligation of restitution. Thus all authors teach, at least modern authors. The reason is that all violated commutative justice demands reparation, which indeed must be measured both on the part of the matter and on the part of the fault. Now in the present case there is light matter and light fault. Therefore there is also a light obligation of restitution.

But if with light fault⁷ grave damage has been caused, authors do not agree concerning the obligation of making restitution. There are four opinions:

1. He who from light fault caused grave damage is bound under mortal sin to reparation of the whole damage. Thus Henry of St. Ignatius⁸ and a few others.

2. He is bound to reparation of the whole damage under light sin. Thus Vasquez⁹ and in some way Billuart¹⁰ and Waffelaert.¹¹

3. He is bound to partial reparation of the damage, according to the condition of the fault and according to the prudent judgment of a man. Thus Bonacina¹² and Laymann.¹³

4. He is bound to nothing. Thus St. Alphonsus,¹⁴ Lugo,¹⁵ Lehmkuhl,¹⁶ Noldin,¹⁷ Gopfert,¹⁸ and several others.

The first opinion is obsolete. Theoretically speaking, the second opinion seems better to us, because the obligation of restitution must be measured chiefly from the fault of the agent, while nevertheless connoting the damage really caused. Hence where there is no moral fault, there is no moral obligation of restitution; where there is grave fault, there also arises a grave obligation (provided that the damage caused is grave). Therefore it seems reasonable that, where grave damage has been caused with light fault, there should be a light obligation of repairing this damage. But the argument which is usually brought forward for the fourth opinion is by no means convincing. They say: Neither a grave nor a light obligation of restitution arises from light fault. Therefore no obligation exists. Not grave, because a grave obligation has no proportion with light fault; not light, because a light obligation has no proportion with a grave thing. But the response is: passing over the first part of the argumentation, concerning which no difficulty exists here, the other part is little probative. Cannot a light obligation be about grave matter? Can someone not oblige himself by vow under light sin to a grave thing, e.g., to a distant pilgrimage? Can a legislator not command a grave thing under light obligation? Then this fourth opinion equally conflicts with the common sense of men and with civil legislation. Here is a case: Today Peter with light fault burns Paul's cheap garment. He is bound under light sin to restitution of this light matter, which indeed even the authors of the fourth opinion teach rather commonly. Tomorrow Peter, with equal light fault, burns Paul's whole house. Now he is bound to nothing according to the fourth opinion, because a light obligation cannot turn upon so great a matter! Another case: Peter, a very rich man, with light theological fault sets fire to the house of Paul, who is thus reduced to extreme poverty. According to the fourth opinion Peter can tranquilly enjoy his riches and ought to pay nothing; but Paul can beg and grieve over his burned house, yet he has no right against Peter! How great cruelty toward an innocent man, and how great laxity toward a culpable man! Do these things correspond to the sound estimation of men? The German Civil Code¹⁹ also establishes that, according to equity, damage inflicted without any fault must be compensated, provided, however, that the one compensating is not thereby deprived of goods necessary for his state.

From all things said thus far it appears sufficiently that the fourth opinion is not theoretically true. Hence even its followers limit it to the case in which the lightness of fault has arisen from imperfection of the act.²⁰

Resolutions. In practice, in individual cases, the circumstances both of the agent and of the damage inflicted must be carefully attended to, as is plain from the following examples:

a) He who from invincible error thinks that he is unjustly destroying the cheap glass of an enemy, but in reality destroys most precious crystal, is bound under light sin to repair the whole damage (if, however, he can). But he who from invincible error thinks that he is unjustly destroying a thing of grave value, e.g., 100 francs, which nevertheless in reality costs 1000 francs, more probably is bound to restore the value of 1000 francs. The reason is that in the first case there is light sin and therefore a light obligation of repairing the whole damage; but in the second case there is grave sin and therefore a grave obligation of repairing the whole damage actually caused. St. Alphonsus,²¹ however, thinks that the opposite opinion is sufficiently probable.

b) He who from a certain light negligence causes another grave damage wholly unforeseen can be treated more mildly. For in daily life it is morally impossible that slight negligences of this kind be avoided. But if someone could and should have foreseen the grave damage of the neighbor and nevertheless is negligent, he sins gravely and therefore is obligated to restitution of the damage. E.g., a physician who foresees great damage to a sick person and nevertheless is truly negligent, sins gravely and is bound to restitution. But if this negligence is very small, the physician is bound to nothing, because it is too difficult for a physician daily to employ perfect diligence in all cases.

c) He who from a second-first movement of anger gravely wounds or kills another indeed cannot ordinarily be obligated in practice to repairing the whole damage (because then even civil tribunals admit attenuating circumstances), but nevertheless it does not seem to be equitable that absolutely no compensation be demanded. In this case the third opinion proposed above by Bonacina can well be applied.

d) He who committed several damagings which individually indeed are light, but joined together are grave, ought to restore under light sin if he inflicted the individual light damages upon different persons. The reason is that those individual damagings do not coalesce and in themselves are venial sins. But if he caused many light damages to the same person, he seems to be bound to restitution in the same way as if he had committed just as many small thefts against this person, whose right is injured in the same way by theft as by damaging. When small thefts coalesce into grave matter has been said above, n. 82 sqq.

Billuart excellently notes concerning this whole controversy: "For the rest, whatever there may be concerning the speculation of this question, the authors of whatever opinion commonly observe that it rarely happens in practice that grave damage is caused from venial fault; because, although venial inconsideration is frequent in subreptitious thoughts and internal movements of the soul, which often, easily, and subtly arise, and indeed about objects conforming to natural inclination, nevertheless it rarely happens in external works of grave moment, because ordinarily they at once thrust their danger upon the mind and more strongly excite it to some consideration, or at least to confused cognition of the danger. Hence, unless it is certainly established that the inadvertence was venial, in practice it is to be held as mortal, namely, conformable to the damage, and the obligation of restoring under mortal sin is to be inculcated."²² Concina has similar things, who judges this controversy very moderately and not rigidly.²³

⁷ This light fault can occur in two ways: 1. from error or erroneous conscience, e.g., someone wants to destroy another's thing which he thinks is light, but which in reality is of great value; 2. from imperfection of the act, e.g., someone from slight but culpable inconsideration causes grave damage.

⁸ Ethica amoris l. 9, c. 116.

⁹ De restit. c. 2, § 2, dub. 2, n. 2.

¹⁰ De iure et iust. diss. 8, a. 5.

¹¹ Tract. de iust. II, n. 266.

¹² De restit. disp. I, q. 1, n. 56.

¹³ Theol. mor. lib. 3, tract. 3, p. 1, c. 6, n. 4.

¹⁴ Theol. mor. l. 3, n. 552.

¹⁵ De iust. et iure, disp. 8, n. 57 sqq.

¹⁶ Theol. mor. I, n. 1153.

¹⁷ De praeceptis n. 435.

¹⁸ Moraltheol. II, 161.

¹⁹ § 829.

²⁰ Cf. Noldin (De praeceptis n. 435) saying: "He who inflicted grave damage with fault (from imperfection of the act) that is light, according to the opinion practically to be followed is bound to nothing." But previously in n. 434 he said that the opinion which exempts from restitution him who inflicted grave damage with light fault, which was a perfectly human act, is indeed extrinsically probable, but is plainly destitute of internal probability.

²¹ Theol. mor. l. 3, n. 615.

²² De iure et iust. diss. 8, a. 5.

²³ De iust. et iure lib. 2; diss. 2, c. 5, n. 7.

98. Principle 2. From material damaging there does not arise an obligation of restitution except in two cases, namely 1) after the sentence of a judge; 2) if it has been freely stipulated so.

It is explained and proved. 1. Material damaging is caused from no moral fault, and therefore it cannot impose in conscience an obligation of restitution, since this is a penalty for fault committed. Nevertheless, laws are just which decree that, even after material damaging with juridical fault, there is an obligation of repairing the damage. For those laws favor all citizens equally; they render individual men more watchful, lest they inflict any damage upon others, and they forestall many cavillations and frauds. But these laws do not oblige in conscience except after the sentence of a judge, because restitution after damaging is a penalty; but generally all positive laws requiring some hard penalty, which consists in an action to be placed, do not oblige except after the condemnatory sentence of a judge.²⁴

2. If a special explicit contract has preceded, obliging the other contracting party to restitution in any case whatever of damaging, such a contract is licit, and therefore even without theological fault the damage caused must be repaired. Such contracts are often quasi-insurances. E.g., the possessor of a railway ought to restore the price of goods which were destroyed during transport, in whatever way finally this destruction occurred. But if the contract entered into is not so explicit, but rather implicit, e.g., in loan for use, in deposit, in the undertaking of some office, one must distinguish:

a) If the contract is for the sole utility of the recipient, as in loan for use, then the damager is bound to restitution even from light juridical fault, to which nevertheless in practice at least light theological fault is always joined. That from loan for use an obligation arises for the damager even when lightly culpable, Gregory IX already determined: "When someone has accepted a loan for use only for his own sake, he is held even for very slight fault, although a fortuitous case ... ought not be imputed to him."²⁵ For natural equity seems to demand that a thing lent to another be guarded with the greatest diligence. Hence, e.g., if someone loses a book lent for use even with light fault, he is bound to restore its price.

b) If the contract yields to the sole utility of the giver, the recipient is not held concerning damage except from broad juridical fault.²⁶ The reason is that in those contracts the recipient has nothing except a burden, and therefore it would be inequitable if, besides the burden of custody, he were still held to restitution from very slight fault. This case often occurs in a contract of deposit. Civil laws are accustomed to establish to what extent he who receives some deposit is held to repair all damages, e.g., a railway or innkeeper receiving the luggage of travelers. Those statutes seem to oblige in conscience even before the sentence of a judge.

c) If the contract yields to the utility of both contracting parties, or if only an implicit contract has intervened by reason of an office undertaken, the contracting party is held to repair damage arisen from broad juridical fault. The reason is that whenever a contract, whether explicit or implicit, has been entered into, the contracting party takes upon himself the burden of faithfully observing all clauses of the contract. Hence, e.g., he who, for a determinate price, has borrowed a horse from another, is bound to repair the damage which the horse has suffered from the broad fault of the borrower. A physician or confessor is bound to repair damages which have arisen from their broad fault. In practice this broad fault always includes theological fault more or less grave. Hence, e.g., a confessor who falsely freed a penitent from the obligation of restitution is bound according to his powers to repair the damage inflicted, because by force of the office undertaken he ought to judge rightly concerning the obligations of the penitent. A longer discussion concerning this matter will return below in the tract on penance.

²⁴ Cf. above, concerning laws, I, n. 212.

²⁵ Cap. unicam, X 3, 15.

²⁶ Cf. S. theol. 2, 2, q. 62, a. 6.

99. Corollaries. From the two principles posited and explained, the following are still drawn out:

1. He who culpably placed a cause from which he foresaw that a determinate damage was going to follow is bound to repair this damage actually following, although he afterward tried to impede the cause. The reason is that by placing such a cause he damaged truly, formally, and efficaciously. But he who without fault placed a cause from which damage to the neighbor is going to follow is bound to prevent the effects of the cause insofar as possible. But if he does not do this, he implicitly approves the cause placed, becomes theologically culpable, and is held to reparation of the damage going to follow. Hence, e.g., a physician who inadvertently administered the wrong medicine ought, according to his powers, to prevent the effects; otherwise he is bound to reparation of the damage.²⁷

2. He who, wishing to damage Peter, by error damages Paul, nevertheless is bound to restitution. The reason is that his action is truly, efficaciously, and formally unjust. Hence the opposite opinion of certain authors²⁸ must be rejected. The case which St. Alphonsus proposes is celebrated.²⁹ Someone wishes to set fire to the house of Titius, his enemy; he goes to the house which he thinks is Titius's, which nevertheless in reality is Caius's, and he sets fire to it. According to the opinion of some authors, the incendiary is held to no reparation, at least if he did not intend, even confusedly, to burn also the house of Caius. For, they say, formal injury is not present in that case, because the incendiary in no way wished to inflict damage upon Caius, who perhaps is his friend. With merit very many modern authors shrink from this opinion, since it conflicts too much with men's moral sense and has caused no small ill-will toward casuistic theology. For that incendiary intends and formally causes injury to the neighbor; but it is wholly per accidens that he errs concerning the person damaged.

Similarly, a like opinion proposed by Gury³⁰ is to be rejected; he thinks that there is no obligation of restitution if someone, moved by a spirit of vengeance, fired a bullet at a she-goat of his enemy, but instead of the unharmed she-goat struck and killed a cow of the same enemy. For although that damager did not wish by his act to kill this cow, nevertheless he wished to inflict grave damage upon his enemy. Therefore there is grave theological fault and grave damage caused; and therefore there is also a grave obligation of restitution.

3. He who has injured only distributive justice is not bound to restitution. But very often together with distributive justice commutative justice also is injured, and then certainly reparation of the damage must be made. An unjust distributor of public offices and duties is bound to restitution toward the community if he has chosen ministers altogether inept, but not if indeed he passed over the more worthy yet appointed worthy and suitable persons. Sometimes also he ought to repair the damage caused to the more worthy persons passed over, namely if a) candidates for some office are called together by way of onerous contract; b) if the supreme superior of the society has obliged the lower distributors, and indeed from commutative justice, to choose the best candidates. In practice there will rarely be an evident and certain obligation of reparation, if it is a question of lay offices and duties. But it is otherwise if it is a question of the conferring of ecclesiastical benefices. Concerning these the following things are commonly taught by authors:

a) It is always a grave sin knowingly to confer some ecclesiastical benefice upon an unworthy candidate.

b) If, after a more worthy candidate has been passed over, a benefice is conferred upon one less worthy, there is still sin; indeed, if it is a question of a benefice with care of souls, it is grave sin.³¹

c) When from the election of an unworthy or less worthy candidate grave damage comes to the benefice or community, the unjust collator is bound to repair this damage; on the other hand, he is bound to nothing from justice toward worthy or more worthy candidates passed over, because they do not yet have a strict right to the benefice proposed. The single exception is if, for obtaining a determinate vacant benefice, the so-called "concursus" has been made, as is customarily done in several regions for parishes and certain canonries. For then, according to the more probable and much more common opinion, commutative justice is injured also toward the more worthy candidate unjustly passed over. The reason is that the calling to a special concursus is a quasi-contract, according to which the collator promises and ought to confer the benefice upon the more worthy. Hence in the Council of Trent³² it was decreed that one unjustly passed over has the right of appealing, by which he can vindicate for himself the benefice unjustly denied to him. And in reality such a candidate unjustly passed over often suffers no small material damage, because he does not receive the revenues of the benefice iniquitously denied to him. There are nevertheless several authors (Dominic Soto,³³ Navarrus,³⁴ Martin Ledesma³⁵) who deny the obligation of restitution. Concerning these two opinions St. Alphonsus³⁶ writes: "I do not dare to depart from the first opinion, common and much more probable. But neither do I dare to say that this second is improbable; because in reality it does not seem to be established that between the bishop and the competitors that pact intervenes which binds rigorously from commutative justice." Since in many regions there is no longer a properly so-called and special concursus for obtaining benefices, this question is not so practical. But if it is a question of a general concursus for an indeterminate and not-yet-vacant benefice or office, the superior does not injure the strict right of the candidates if, for some benefice or office subsequently becoming vacant, after passing over the more worthy, he chooses one less indeed but truly worthy. The reason is that the more worthy candidate does not have a strict right to some determinate benefice.

²⁷ Cf. St. Alphonsus, Theol. mor. l. 3, n. 564.

²⁸ Lugo, De iust. et iure disp. 17, n. 78 or rather disp. 18, n. 86; Lacroix, De consc. l. 3, n. 200; St. Alphonsus, l. c. n. 629; Sporer, De iust. tr. 4, c. 2, n. 139; D'Annibale, Summula II, n. 232.

²⁹ L. c.

³⁰ Comp. theol. mor. I, 672.

³¹ Cf. Council of Trent, sess. 24, c. 1 de reform.; prop. 47 condemned by Innocent XI (Denz. n. 1197); Code of Canon Law c. 459, § 1.

³² Sess. 24, c. 1 de reform.

³³ De iust. et iure l. 4, q. 6, a. 3 ad 6, posterior conclusion.

³⁴ Man. c. 17, n. 24.

³⁵ In IV sent. 2, 4, q. 18, a. 2, dub. 9, concl. 2.

³⁶ Theol. mor. l. 4, n. 109; cf. Elenchum quaest. reform. q. 47.

We must treat: 1. of the unjust damager in general; - 2. of various damagers in species.

948. An unjust damager is said to be one who injures another's right, or harms his neighbor in goods, without thence becoming richer of himself or directly.

PRINCIPLES. I. An unjust damager is held to restore an equivalent price, both of the thing damaged and of the other damages which have come from his action and were at least confusedly foreseen by him. The reason is that the injured owner must be made wholly unharmed, according to equality (cf. n. 931). Yet injury is to be estimated not from damage only, but also from the will of the agent (n. 724).

949. II. In order that a damaging action induce an obligation of restitution from the law of nature, a threefold condition is required, namely that the action be strictly, effectively, and formally unjust; and these three things are altogether certain. These are to be explained part by part (cf. Lugo, disp. 8).

Condition 1. It is required that the damaging action be strictly unjust, that is, that one's neighbor has been despoiled of some thing to which he has a strict right. The reason is that the obligation of restoring, as we have already often said, arises from the violation of commutative justice alone (III, 547).

It is explained: 1. The strict right which can be injured is either a right in a thing or a right to a thing, which supposes a legitimate title. You do not have a right to all things to which your neighbor, in conscience, is obligated either from charity or from religion, namely a vow.

2. He violates a strict right who takes away the thing of his neighbor, although he himself abuses it for sinning (see nevertheless n. 1020); indeed although he received it as remuneration, a pact concerning a shameful thing having preceded (n. 1036). Cf. Lehmkuhl, Cas. consc., n. 691.

3. He violates a strict right who inculpably indeed has placed an action harmful to another, but culpably does not impede it from proceeding; for example, if someone does not extinguish a fire applied by himself without fault to another's houses; or does not warn a buyer after he has noticed that he gave poison for a remedy (III, 564, 994; VI, 621). Therefore there is an obligation of restitution.

4. Nevertheless a damager is not held to restitution who had the right of placing an action harmful to another. For the Rule of Law, Law 151, de Reg. Jur., favors him: "No one does damage, except because he does that which he does not have the right to do." Thus a merchant is not unjust who sells at the lowest price, although he injures other merchants; nor a proprietor who turns waters from his own field into another course harmful to his neighbor, lest he himself suffer gravely; nor a smith who sells a sword to a homicide, lest he himself perish by death. - But otherwise, if actions of this kind are placed without a just cause (III, 584, 697). Similarly, the owner does not act unjustly who digs a pit on his own estate, although he intended that an enemy, whom he knows sometimes passes through there illicitly, should fall and break his leg. Lehmkuhl, Cas. consc., n. 672. Nevertheless charity requires that the enemy at least be warned in general.

5. He is also not held to restitution who has injured charity alone, for example if you were conveniently able to impede the burning of another's house and were unwilling; or religion alone, as if you neglected your vow; or piety, for example if you did not feed your needy parents; or legal justice, if, for example, you denied a crime as accused or witness, lest your own or another's goods be applied to the treasury; or distributive justice, if, for example, by distributing alms left by legacy to the poor, you neglected the poorer. And the same must be said of every debt which does not arise from commutative justice (III, 547, 583).

Condition 2. It is required that the damaging action be effectively unjust, that is, a true and efficacious cause of the damage. The reason is clear: for only the author of damage is held to repair it. Therefore it is required: a) that the damage has truly been inflicted; for damage merely willed, just as also that of which you indeed placed the cause, but which another impeded, for example in a fire made by you but extinguished by another, brings no obligation of restitution; b) that the damage has emanated from your action as from its proper cause; for there can be no obligation of restitution unless the cause of the damage is established, and the true influence of this cause into the damage (III, 562, 584; cf. II, 43, 45).

Hence: 1. It does not suffice for the obligation of restitution that injury without damage has intervened. Thus, he who committed adultery without the damaging of another is held to no restitution in conscience, although he can be compelled by a judge to make satisfaction for the injury (III, 556).

2. The occasional cause of damage does not suffice, because it is not an efficacious cause, but only the occasion of an efficacious cause, that is, at whose presence the principal cause acts. Hence, if by occasion of a theft or homicide perpetrated by you, another has been accused and condemned, you are not held to repair his damage. - And the same holds even if you foresaw this or even intended it, unless the circumstances of the action were such that they proximately and morally influenced the imputation against the third party, say if you killed clothed in the garments or arms of Paul (III, 635). - In this last case the guilty person is held from justice to denounce himself, or at least to turn suspicion away from the accused; otherwise he would be held from charity alone. - Hence also, if, by occasion of a violated sacramental seal, Peter has learned the author of a theft, so that through proofs and indications he can reclaim his good before the judge, he, Peter, although he sinned by listening to the thief's confession, is not the efficacious cause of the damage which comes upon the thief from the sentence of the judge. Linz. Quart. Schr., 1906, p. 829. Ami du Cl., 1905, p. 971, certainly otherwise. Cf. the things to be said in n. 1188.

3. A cause without which the effect would not occur does not of itself suffice; for example, if you did not return the sword, another would not be killed: from this you do not become the efficacious cause of the damage.

4. A remote and accidental cause does not suffice; for a cause of this sort does not of itself and directly influence the damage, but through some unforeseen and improbable accident; and therefore it cannot be called the efficacious cause of the damage (III, 632). Now damage is judged to follow by accident when for the most part it does not arise from the cause posited, or even could not arise from that alone without the concurrence of other causes.

5. Likewise he is not held to restitution, according to the more common and more probable opinion, who by his bad example has induced others to inflict damage. For bad example is not properly a cause positively influencing the damage, because of itself it does not tend to this, that it impel others to doing the same thing; but it is a mere occasion at whose presence others, of their own accord, take up the thought and counsel of inflicting damage. See the things said above under 2. - But it must be said otherwise if the example should put on the nature of counsel or mandate, for example if the leader of soldiers began to plunder (II, 44).

Note. a) According to grave authors, sometimes a cause which ordinarily influences damage by accident is considered as a cause causing damage of itself, if it is placed solely with the intention of harming. Causes of this sort would be, for example, to steal something small from a miser so that he may become sick; to place a snare in a forest so that an enemy, rarely passing through, perhaps may bring evil upon himself; to kindle a fire in a remote place so that, if perhaps a wind arises, the granaries of the enemy may be burned. - Nevertheless it is not to be denied that this theory concerning the efficacy of intention with respect to action does not please all, as we noted in n. 727. See Lehmkuhl, Cas. consc., n. 713.

b) Since attention should rather be paid to the action considered in itself, it follows that if someone culpably placed the cause of damage and afterward, led by repentance, tried to impede the damage, but in vain, he is nevertheless held to restitution. For retractation takes away fault before God and contumacy before the Church (n. 1264), but it does not change the natural influence of the action. - Except if it is a question of counsel, whose influence revocation takes away (n. 982). Cf. St. Alph., III, 559; VII, 40.

Condition 3. It is required that the damaging action be formally unjust, that is, theologically culpable.

For a twofold fault is distinguished, namely theological and juridic.

Theological fault is the omission of ordinary diligence which the matter demands and which is customarily employed by the timorous in their own office; and indeed a voluntary omission, whether in itself or in its cause. According to the degree of the damaging, it constitutes sin, whether grave or light.

Juridic fault is the omission of diligence required by positive Law or by the nature of the contract for forestalling damages, although in the omission no theological fault intervenes. This omission is called lata fault if the diligence which men commonly are accustomed to employ in a similar business is omitted; light, if the diligence which diligent men, as a good father of a family, employ is omitted; very light, if the diligence which the most diligent put forth is omitted (III, 549). - Juridic fault becomes theological fault only then when due diligence is advertently omitted; because, when there is no advertence, not even in the cause or in a confused way,

there is lacking consent of the will into the damage, or the mind of harming. - Very often broad juridic fault has theological fault as its companion.

Therefore the sense of the third condition here is: In order that there be an obligation of restitution, there is required, on the part of the one causing damage, broad juridic fault placed advertently.

It is proved: "In order that conscience remain obligated, it is necessary that the delict have been perpetrated in conscience" (H. Ap., X, 39). Thus from natural Law.

Hence there is no obligation of restitution, at least before the sentence of a judge: a) If you killed an enemy whom, in killing, you thought to be a wild beast, even if you rejoice after the fact. - b) If a thief, by occasion of the theft, indeed efficaciously, but beyond all advertence, inflicted a new damage, for example because by overturning a lamp he excited a great fire. - c) If a maidservant from merely juridic fault breaks the crystal vessels of the owner. - d) If an industrial man omitted in his workshop the slight precautions prescribed by law, while ordering all else prudently, and a great misfortune occurred (Lehmkuhl, Cas. consc., n. 665). - Some authors indeed judge that there is an obligation of restitution if someone, in doubt whether damage may come upon his neighbor from his action, omits diligence required only by law. Yet this obligation is not established (III, 551).

Note. 1. From merely juridic fault there sometimes arises an obligation of restitution; and this can happen under a twofold head: a) By force of positive law, after the sentence of a judge. Thus a judge can justly condemn you to the reparation of damage truly inflicted by your animals or by boys committed to you, without theological fault;¹ and such a sentence obliges in conscience from legal justice (cf. n. 192). Yet the law itself does not oblige before the sentence, unless theological fault was present, as is commonly taught (cf. n. 933). b) By force of an express convention in contracts, or in fulfilling offices; for you can often justly obligate yourself even concerning a fortuitous event, as will be said in its place (cf. n. 1162).

We said by force of an express convention, in contracts; for Lessius, Lugo, and others teach very probably that it is not equitable to oblige someone in conscience to a grave penalty, without grave fault of his, whenever it is not established that he wished to subject himself to juridic fault alone (III, 554). - The same reason holds for quasi-contracts, or fulfilling offices. Wherefore no one obliges physicians, advocates, confessors, and theologians to restitution from juridic fault alone; for if the matter were otherwise, no upright and timorous man would wish to discharge these offices, which would fall to the damage of the republic (III, 555). See nevertheless what is to be said in n. 974.

2. From venial theological fault, sometimes, although grave damage is truly present, there arises no obligation of restitution: if namely the theological fault is venial by reason of inadvertence or indeliberation. Thus the more common and more probable opinion. An obligation of restitution under grave sin is not induced, because such an obligation does not have proportion with light fault; not under light sin, because a light obligation does not have proportion with grave matter; so much the more because fault imperfectly deliberated cannot induce a perfect obligation, just as in contracts and vows an obligation does not arise from consent not fully deliberated.²

3. Finally, all know that theological fault which is venial by reason of the damaging obliges to restitution under light sin (cf. n. 927).

It is added, 4. that these three things be altogether certain. Doubts concerning a damaging action can be moved: a) before the fact; concerning these antecedent doubts we are not speaking. All know that an action is licit to no one concerning which one antecedently and positively doubts whether it is unjust or not (cf. the things said in n. 81). b) After the fact, that is, subsequently to the damaging action already placed. But the object of doubt in the case can be either the existence of the damage, or the efficacy of the action, or its injustice taken objectively, or the theological culpability of the agent; and we say: as long as these doubts have not passed into certitude, there is no obligation of restitution. The reason is that, where it is a question of goods of fortune, no one ought to be deprived of his certain right unless it is established that the right has been lost (nn. 44, 850). Compare St. Alph., III, 562, 658; Conf. dir., X, 20.

Yet a twofold exception must be admitted: 1. If several have acted by common counsel, and afterward a doubt arises in what degree each concurred. 2. If someone inflicting damage notices that, by his action, he is the cause why the author of certain damage becomes uncertain. Cf. n. 963, 2.

950. Special question: On error in damaging.

In the matter of damaging, there can be a twofold invincible error: one concerning the object, the other concerning the person.

I. ERROR CONCERNING THE OBJECT. If someone thinks from invincible error that the damage inflicted by him is much less than it really is, he is probably not held to restoring except in proportion to the known damage. The reason: that damage which is not known, at least in a confused way, is not judged willed.

Thus, therefore, he who throws into the sea another's gem worth 100 aurei, thinking it to be worth only 10, must restore only 10 aurei (III, 613). See nevertheless the note to be placed below.

II. ERROR CONCERNING THE PERSON. If someone, intending to harm one person with any other excluded, harms another by invincible error, he probably cannot be obligated to restitution in the internal forum before the sentence of a judge. The reason is that it is not enough that the damaging action be unjust, but it is required that it be formally injurious toward the one damaged; and therefore error concerning the person is a substantial error.

Therefore if someone, wishing to kill Caius, kills Titius; intending to burn the house of an enemy, burns the house of a friend, etc., he will not be constrained to restitution. Thus St. Alphonsus (III, 628, 629), Lugo, Croix, and others.

Another probable opinion is given concerning this question. Besides Bonacina and Haunold, recent authors defend it, such as Lehmkuhl, Vermeersch, Noldin, Tanquerey, Schindler, Pruner. They affirm that in the case there is an obligation of restitution, because, they say, that action is unjust, an efficacious cause of damage, and theologically culpable, and error concerning the person is only accidental. These arguments are indeed not slight; nevertheless the reasoning of our holy Doctor is not to be despised, which even the adversaries concede; hence the possessor is to be favored.

Note. Yet in each mode of erring there is an obligation of restitution: a) If the damager was actually so disposed in soul that, even if he had known, nevertheless he would have inflicted the damage; because then ignorance was not the cause of the damaging. b) If he has been condemned by a judge; because in doubt one must stand for the judge (III, l. c.). Cf. Genicot, I, 522; Linz. Quart. Schr., 1905, p. 890; Ami du Cl., 1905, p. 984.

S. Th. II-II, q. 62, a. 4.

289. The first title of restitution is unjust taking (benadeeling). — An unjust receiver or damager is one who voluntarily inflicts damage on another without a just cause, even without gain, whether physically or immediately through himself, or morally and mediately by cooperating with another. Damage is an unjust detriment inflicted upon a neighbor by the action of another, whether by an internal act, as by rash judgment, or by an external action, as by taking away, destroying, detaining another's thing, for example, by theft, fraud, usury, or by not impeding what from justice one is bound to impede, or by cooperating with the same. Now "whoever damages someone seems to take away from him that in which he damages him: for damage is spoken of from the fact that someone has less than he ought to have... And therefore a man is bound to restitution of that in which he has damaged someone," q. 62, a. 4.

290. The general principle is: In order that the damager be bound to restore, three conditions are required together, namely, that the action (or omission) be truly, efficaciously, and formally unjust; or that the cause be 1) unjustly damaging, namely, that it inflict rigorously unjust damage or injure strict right, 2) efficacious of the damage, and 3) culpable.

744. • An unjust damager is called one who injures another's right and harms the neighbor in his goods, without thereby of itself becoming richer.

A twofold fault is distinguished by which damage can be inflicted, namely theological fault and juridical fault. - Theological fault is that which includes an offense of God, that is, formal sin, whether mortal or venial. - But juridical fault is the damaging omission of diligence prescribed by law, whether this is a formal sin or not.¹

But juridical fault, from the common interpretation of Roman Law, is either gross, or slight, or very slight. Gross fault is the omission of diligence which men commonly are accustomed to employ in similar affairs, as if someone, leaving his workshop for a longer time, leaves the door and chests open, and anyone can easily carry away money or merchandise. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to employ; as if the same man, going away a little, neglects to carry with him the keys of the chest, which it is not at all likely that another, in his absence, will seize for stealing. Very slight fault is the omission of diligence which is usually employed only by the most prudent and most diligent; as if the guard of a house, who when about to go to bed bolts all the doors, neglects to search the individual places, lest perhaps a thief lie hidden.

745. Principles. - I. An unjust damager is bound to restore 1° the whole equivalent of the thing damaged; thus, for example, if someone culpably burns another's house, he must repay its entire price to the owner; 2° the whole equivalent of the damages foreseen besides the damaging of the thing, if any have come from it. Hence, for example, if a craftsman is compelled to omit his accustomed work for some time because you destroyed the instrument necessary to him, and you foresaw this, you are bound to compensate him not only concerning the value of the instrument, but also concerning the profit ceasing.

The reason for this principle is clear from what was said n. 587 and 713. For the injured owner must be made wholly harmless. But for this it is not enough if the damager pays to him the intrinsic price for the thing, when the other has suffered other detriments from the privation of his thing, since he would not recover everything which he lost from the unjust damaging. Nor does it stand in the way that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility perceived concerning another's thing, but from damage inflicted.

746. • II. That a damaging action induce an obligation of restitution, by natural right a threefold condition is required, namely that it be 1° unjust, 2° the efficacious cause of damage and indeed certainly efficacious, 3° theologically culpable.

1° Unjust. For the obligation of restitution necessarily supposes the strict right of another violated. But strict right cannot be violated except through an unjust action, or one opposed to commutative justice, according to what was said above n. 587, etc.

2° The efficacious cause of damage, namely 1° that the action per se influence the damage, so that this is judged truly to follow from it; 2° that it can be imputed to such an agent. The reason for each is clear. For an action can be imputed to no one unless it is his own; nor can the detriment of an action be ascribed to anyone unless his action was the true and efficacious cause of the detriment, physically or morally.

But this happens when an action is placed which from its own nature or from the circumstances has a morally certain connection with damage. Hence 1° a merely occasional cause of damage does not suffice for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on the occasion of theft perpetrated by you, another was accused and condemned, you are held by no obligation of repairing his damage. - Nor 2° does an accidental cause suffice for restitution; for this is one which, considered in itself or with attention to the circumstances, does not have a probable connection with the event, and so is not to be called an efficacious cause. Hence, if you hand a sword to Titius without probable foresight of his abuse of it, you are not guilty of injustice if he perpetrates murder with that sword.

And indeed certainly efficacious; for the obligation of restitution cannot be present unless the cause of it is certainly established.

3° Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless in the same forum an injury has been committed, nor can conscience be bound by an obligation of repairing an injury which it did not itself inflict; otherwise even those sleeping and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. Moreover there is no injury in the internal forum where there is no theological fault; for to injury there is required a will of harming, at least indirect, or some foresight, at least confused, of unjust damage. Therefore, etc.¹

747. • III. Yet even from merely juridical fault there arises an obligation of legal justice or obedience of repairing damage; but only after sentence, and that a just one. 1. The obligation arises, since the law establishing it, as made for the common good (n. 129. R. 2°) and favoring all equally in advance, is just; wherefore the injured party safely appeals to it, even if he certainly knows that the injurer is guilty of no theological fault. 2. Legal justice etc., because that obligation is imposed by right of jurisdiction. 3. Only after sentence, since that obligation has the species of penalty, and it would be hard to oblige the guilty man to take it upon himself spontaneously without theological fault. 4. And a just one (see n. 129. R. 1°).² Mar.³ (K) p. 482.

748. Questions. - Query 1° Are you bound without theological fault concerning damage inflicted by you upon another's thing detained from contract, for example of deposit or loan for use?

Resp. There is a twofold probable opinion.

The Opinion which to S. Alph.⁴ is very probable affirms absolutely that theological fault is required. The reason is that merely juridical fault does not suffice for inducing an obligation in conscience, as is established from what was said above in principle II, unless a special agreement has intervened. But the existence of an agreement of this kind is in no way established; indeed, it is not presumed that the contracting party wished in conscience to take upon himself under grave sin so great an obligation with juridical fault alone.

749. • Query 2° Is someone without theological fault bound concerning damage inflicted in fulfilling an office, as if a physician gave a harmful remedy, a judge an unjust sentence, an advocate false counsel, a confessor a resolution damaging to a penitent or to another?

Resp. Probably negatively, as in the preceding question. The reason is 1° because the obligation of restoring on account of merely juridical fault in an office, or in a quasi-contract, cannot be proved either from natural right or from the convention of the parties; 2° because such an obligation would be harmful to the public good; for from this it would happen that upright and God-fearing men would be kept from undertaking the affairs of others, and also from public offices. S. Alph.,¹ Billuart,² Lacroix.³

Query 3° Is he bound to restitution who inculpably indeed placed a cause of damage, but afterward did not impede it, although he could have impeded it?

Resp. Affirmatively. The reason is that each one is bound from justice to impede his own action from harming the neighbor; therefore he is also bound to impede the evil following from his action from persevering, but not with equal damage to himself.⁴

Hence 1° one who inculpably set fire to another's house, when he notices the danger of the fire, is bound from justice to impede it, if he can. 2° Likewise a pharmacist who sold poison by mistake for medicine is bound from justice to warn the buyer. 3° Likewise one who by mistake said something grave against another's reputation is bound afterward, when the error is known, to correct it; and if he does not do so, he sins gravely and is obligated to reparation of all damages which come from this.

750. • Query 4° Must damage following from a cause culpably indeed placed, but already retracted when the damage is inflicted, be repaired?

Resp. Affirmatively, unless with the perverse will the influence of the cause also has been taken away. Thus, for example, if someone voluntarily gave poison to another, and afterward cannot impede its effect, however much, repenting of the deed, he may wish it, he will be bound to repair the damages coming from the homicide. The reason is that he who placed the cause of the damage always goes on efficaciously influencing it. - Thus commonly.

Query 5° Must damage indeed inflicted BY ACCIDENT, but while attending to an illicit work, be repaired?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even in confused manner. Nor does it matter that the action was illicit; for this pertains nothing to the notion of justice. Thus a cleric who, while attending to hunting against the prohibition of the Church, kills a man instead of a wild beast, is no more guilty of injustice than a layman who would have done this. Indeed damage inflicted by accident need not even be repaired, even if it happened on the occasion of an unjust action, because it has no connection with that action. Hence he is not bound to restitution who killed Titius, whom he did not at all see nor know to be present, while he was aiming a gun at Caius. - Thus most commonly. - Lugo,¹ S. Alph.²

751. • Query 6° Are you bound to repair damage which by mistake you inflicted upon someone while you intended to harm another, for example if you burn the house of Caius, which you think is the house of Titius your enemy?

Resp. They deny it with S. Alph.,³ Lugo,⁴ Lacroix.⁵ The reason is that the action was not voluntary toward the damaged person.

Query 7° Is one who gravely damages, yet with light theological fault, bound to restore under whatever fault, even very slight?

Resp. More probably negatively, because proportion is lacking both between grave obligation and light fault, and between light obligation and a grave thing. - Otherwise, if someone, prudently fearing damage from his action, voluntarily admits juridical fault to which according to the nature of the thing he was bound; for this man is guilty of grave theological fault.⁶

752. • Query 8° Is one who inflicted grave damage through several venial faults deliberately committed bound under grave sin to repair that whole damage?

Resp. 1° Affirmatively, if the damage inflicted is upon the same person, although the damager did not sin gravely. The reason is that here he is bound to repair the whole damage voluntarily and freely committed. But the whole damage was freely inflicted, and besides it is grave in the hypothesis; therefore that whole must be repaired under grave sin. - Lugo,¹ etc.

Resp. 2° More probably negatively, however, if small damages were inflicted upon diverse persons. The reason is that on the one hand no one suffers grave damage, and on the other hand the damager does not become rich from another's thing. Hence the present case differs from the similar question related above n. 717. q. 4°, because a thief becomes rich from small thefts, but not a damager.

Query 9° Is one who from invincible error thinks that the damage inflicted by him is much less than it really is bound to restore that whole damage if afterward he recognizes the true price; for example, if someone throws into the sea another's gem worth 100, while he believes it to be worth only 10?

Resp. Probably he is bound to restore only according to the proportion of the damage known; because the damage which is invincibly unknown is not judged willed. - S. Alph.,² Carriere,³ against others.

Yet an obligation of repairing the whole damage will be given if, when because of suspicion of a greater price, at least arising in confused manner, the whole damage becomes voluntary.

753. • Query 10° Is an owner bound to repair damage inflicted upon the neighbor by his animals?

Resp. 1° Affirmatively, if from theological fault he neglected to watch over the animals. For each one is bound by natural right diligently to guard his animals lest they inflict damage upon others, just as he ought to guard against detriment coming to the neighbor from his own actions.

Resp. 2° But, theological fault being set aside, he is not bound before the sentence of the judge, as is clear from principle II. n. 746; but after sentence has been pronounced, as is established from principle III. n. 747. - But by the laws according to which sentence is commonly given among us, animals inflicting damage are held until satisfaction is made to the injured party, and by public authority they are sold if the owner neglects to redeem them. But if the owner of the estate often omitted to enclose it lawfully, he can recover nothing; but he himself will be bound to repair the damage if the animal wounded or killed.⁴ Cf. n. 686.

Query 11° Is that man bound to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The more probable opinion denies it, because one who gives bad example is not the cause of the damage, but a mere occasion. For an evil action of itself does not tend to this, that it excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflicting the damage. S. Alph.,¹ Salmant., Laymann, Sanchez, Lugo, etc.

754. • Query 12° Is he bound to restitution who doubts whether he himself was the cause of damage?

Resp. There can be doubt: 1. whether a cause of damage was given, for example whether you calumniated someone; whether you were the cause of damage or only the occasion; 2. whether damage truly came to someone, suppose from your detraction; 3. whether damage which actually followed arose from that cause, for example from the calumny, or from elsewhere; 4. whether, if many were the cause of damage in the same way, for example by adultery, the effect (offspring certainly adulterine) is to be attributed to this or that adulterer. In all these doubts the obligation of restitution is to be denied; and indeed in the 1st and 2nd according to the common opinion; in the 3rd according to a sufficiently probable opinion; and in the 4th according to the more probable.² The reason is that in each hypothesis it is a question of a doubtful obligation, by reason either of the cause or of the effect.

Except, as to the 4th doubt, if the second adulterer, knowing adultery to have been committed by another, had intercourse with the adulteress, noticing that he by his second adultery becomes the cause of uncertainty whether support can be exacted from the first adulterer. But the reason indeed is not valid for the earlier adulterer, who would think nothing concerning future adulteries. And for the second to be bound, it is further required that he notice that damage which can come from his adultery; because nevertheless this advertence will be very rare, the obligation of this adulterer also will be very rare. - 2° If several adulterers from common counsel perpetrated adultery.²

755. • Query 13° Are you bound to repair damage coming to someone on the occasion of your unjust action, for example if you stole, and the theft is imputed to him?

Resp. 1° Certainly negatively, if you did not foresee that damage. This is clear from what was said above in principle II. n. 746.

Resp. 2° Also more probably negatively, although you foresaw this damage. The reason is that your action, placed with the foresight alone of the damage, must be held not as the per se cause of it, but only as the cause by accident. It is established also from the second principle, ibid. Except if at any time the circumstances were such that they morally proximately influence the grave suspicion and condemnation of another. - S. Alph.,¹ Lacroix,² etc., against others.

Resp. 3° Indeed probably it must also be denied, although you acted deliberately so that your action would be imputed to him, because this action is always only the cause of the damage by accident and not per se; for from its nature it did not efficaciously influence that damage. For a depraved intention does not effect that the work is unjust which of itself is not unjust with respect to a third party. Yet it must be excepted if someone used those means which would furnish a very grave suspicion for accusing another, for example if he dressed himself in his clothes to perpetrate homicide, threw away these stained with blood, etc. - S. Alph.,³ Lessius, Vogler, against others.

756. • Query 14° Is an unjust distributor of offices bound to restitution?

Resp. 1° More probably he is bound to nothing toward the worthy person passed over, the case of competition being set aside, because he violated the strict right of no one. - S. Alph.,⁴ and others commonly.

Resp. 2° By reason of the election of an unworthy person he is certainly bound toward society concerning all damages thence coming. The reason is that there is judged to be present an agreement of strict justice between society and the elector, by which the latter is bound not to elect unworthy ministers. - Thus commonly.⁵

But more probably he is bound to nothing by reason of the election of one less worthy, although he can sin gravely. The reason is that society is not judged to oblige electors by the title of commutative justice to elect the worthier.⁶

757. • Query 15° Is he bound to restitution who impeded another from the obtaining of some good or benefit?

Resp. 1° Affirmatively, if the neighbor has a strict right to obtaining the thing, as if you impede a creditor from obtaining payment.

Resp. 2° If the neighbor does not have a strict right to obtaining the thing, a distinction must be made. 1° It must be affirmed if this is impeded by unjust means, for example force, fraud, calumny, fear, etc. Namely, then he is obligated to compensation of damage according to the judgment of a prudent man, according to the certitude or probability which the other had of obtaining that good, provided nevertheless he is worthy and could have obtained that good without injustice; for if he were unworthy, the one impeding would not be bound except to restitution of reputation, if perhaps he injured this unjustly.¹ 2° It must be denied, however, if it is impeded by means just in themselves, for example persuasion, prayers, etc. The reason is that then no right of the other is violated, neither in itself nor in the means. - Thus commonly.²

Query 16° Are you bound to restitution if from an evil intention, for example from hatred, yet with means of themselves unjust set aside, you turn another away from the obtaining of a good to which he does not have a strict right?

Resp. More probably negatively. The reason is that no injury is inflicted upon the neighbor. For evil intention does not suffice for injury, but there is required an external action which is the true and efficacious cause of unjust damage. - S. Alph.³ and others more commonly against others.

Query 17° Must someone in danger prefer another's thing to his own, so that he is bound concerning damages if he does not prefer it?

Resp. The contract by force of which he has another's thing either yields for his utility only, or for the utility of the other only, or for the utility of both. If the first, as if he received the thing by loan for use, he ought to prefer that thing to his own, or, if his own is much more precious, to make the owner harmless concerning the price of his thing, because for his benefit alone the thing of another was brought into ruin. - If the second, as for example if I received the thing by deposit, a distinction must be made. If this is much more precious, I ought to conserve it; nevertheless I can exact compensation of the whole damage which I suffered by preserving it. If my thing is equally precious, I am not bound to prefer another's thing to mine, since I retain it for the utility of that man alone.⁴ If the third, as for example if as a broker (agent) I have been hired for a price to sell another's thing, there are those who think that, other things being equal, I can prefer my thing, since charity does not oblige me to prefer another's thing to mine in equal necessity; but others think that some compensation is owed to the other party, which seems more just to Varceno.⁵

758. Cases. - 1° Didacus at night puts away in a corner of the house a very precious crystal vase of Caius, by which no one was soon going to pass, intending to place it in a safe place very early in the morning. But Basilius, entering the house that same night without light, strikes against the vase and breaks it. What is the law? - Resp. Neither Didacus nor Basilius is bound to restitution, because on the part of each theological fault is lacking; for neither thought about damage or the danger of it. Indeed neither one would be bound if he had foreseen some very remote danger, because in morals attention is not paid to mere possibility.

2° Quirinus, intending to steal cloth, enters a workshop at night and lights a candle, employing diligence to avoid every danger of fire; but by an unexpected event, namely the leap of a cat, the candle is thrown into straw, and in a short time the whole workshop is burned, and the thief barely escapes unharmed by taking flight. What of Quirinus? - Resp. He is bound to nothing, because he in no way foresaw the danger. Indeed he is not bound concerning the cloth which he wished to steal, even if he had seized it, because even that damage is involuntary; nor is the seizure of the cloth the cause of the damage, nor did the carrying of the candle create a proximate danger of fire when sufficient caution had been employed. Yet if the thief had not only seized the cloth, but had consummated the theft by withdrawing it from the power and custody of the owner, when by accident, for example by the lit candle, the cloth was burned, he would be bound concerning it, as is said concerning any stolen thing which perishes by fortuitous event with the thief. - Thus Lugo,² Lacroix.³ Cf. n. 734. 1°.

3° Pomponius, impelled by a mind of revenge, while seen by no one, discharged a shot at a goat of Marri grazing peacefully in the estate of the owner; but instead of the goat, which was unharmed, he struck and killed a cow of Marinus lying behind a hedge, while he was wholly ignorant of it. To what is Pomponius to be obligated? - Resp. To nothing. For he is not bound to anything for the aforesaid goat, since it remained unharmed; nor for the cow, since he in no way foresaw its damage. But what if the cow belongs to the same owner? The difficulty increases, since the damager truly intends to inflict damage upon such a person; for although he does not destroy the thing specially intended, since in general he wishes to harm the enemy, the damaging action which he places seems formally injurious to the same owner. Nevertheless, standing in the rigor of the principles, he can still more probably be excused, if in no way, not even in confused manner, did he foresee this other damage. For it can be said that it happened merely by accident; nor does the depraved intention of harming the same man make the damage of a thing wholly unknown become voluntary. It is otherwise, however, if, wishing generally to harm the enemy as much as he could, he had known somewhat in confused manner various objects to be damaged. Recall what was said n. 746 and 755.

4° Sidonius, seeing Justin passing by and thinking that he is Titius, says to his companions: Look, that man is not the standard-bearer of the scrupulous! ... But he is a worthless man, a thief, fornicator, and drunkard. Query: What must Sidonius do when the error is detected? - Resp. He must retract the things said before the same companions, although involuntarily he said these things against Justin; and if he does not do so, he will be bound to repair all damages which follow from the defamation. Cf. n. 749. q. 3°.

5° Babinus, by repeated prayer and flatteries, yet with all deceit set aside, induces Roger, who is dying, to tear up the will already made in favor of Paul, so that he himself, or a friend or blood-relative, may be constituted heir. But Babinus is determined to do this, besides his own advantage or that of a friend, from inveterate hatred which he cherishes against Paul. Is Babinus guilty of injustice? - By no means. For although on account of hatred he has sinned gravely against charity, nevertheless more probably he has not injured the virtue of justice, because he has violated no strict right of Roger. The same would have to be said if someone from hatred had turned the testator away from constituting Paul heir, so that anyone else would be constituted in his place. - Recall what was said n. 757. q. 15°. q. 16°.

6° a) John intercepts letters by which Paul seeks some office, and thus impedes him from obtaining that office. b) Peter, the secretary of the Governor, sets aside a little the letters by which Caius was demanding some office, so that the office meanwhile may be conferred upon Titius. c) Iphigenius reads letters sent to Cornelius and opened by accident, and uses the knowledge derived from this for his own advantage, but without any damage of Cornelius. d) Antony, a secretary hired by Hubert for a price, uses knowledge received on occasion of his office to the detriment of Hubert, or even of those who wrote letters to this man. To what are John, Peter, Iphigenius, Antony bound? - John, Peter, and Antony are bound concerning the damage respectively toward Paul, Caius, Hubert, or those who wrote letters to this man, since they used unjust means to impede them from the obtaining of a good. And indeed John and Peter are bound to compensation to be estimated according to the reason of the hope which shone upon Paul and Caius of obtaining the office. But Iphigenius is bound to nothing, since he inflicted no damage.

7° Charles persuades the Governor to choose Patrick rather than Kilian, otherwise certainly to be designated, for an office. To what is Charles to be obligated? To nothing, provided that in persuading he used no fraud, calumny, or other unjust means. (n. 757. q. 15°.)

8° Hilary a) from hatred toward Philip induces the notary that in favor of Philip an act not be done before him, which otherwise will be invalid; b) in order to harm Bertha, otherwise to be instituted heir by Caius, he craftily removes the secretary, or another suitable person for drawing up a will, lest the dying Caius use his work, who will scarcely have the work of another. Is Hilary guilty of unjust damaging? He certainly is in the former case, because, since the notary by force of his office was bound to furnish his work to Philip, who, as is supposed, asked for it, he deprived Philip of his strict right. Resolve the same of itself in the latter case. I say: of itself; for since everywhere among us the will of a dying man can obtain force also in another way, namely by declaring it before witnesses, there will scarcely be an obligation of restoring to Bertha, unless force was employed by Hilary lest the will be made in any manner in which it could be valid.

9° Felix a) detains a messenger lest a business useful to Ferdinand be transacted; meanwhile he uses the occasion for his own utility. b) Elsewhere he hires all the post-horses in the town for a price lest the same Ferdinand betake himself to a certain place, where he would have made an immense gain. Is Felix bound to make Ferdinand harmless? A distinction must be made. If by force or threats he detained the messenger or hired the post-horses, affirmatively. If only by persuasion or art, negatively, unless the messenger had been hired by Ferdinand, or by another contract ought to have conducted Ferdinand's business.

Note. A twofold fault is distinguished : one theological, the other juridical. Theological fault is formal sin before God, whether mortal or venial. Juridical fault is the omission of some diligence from which damage follows to another. Such an omission, I say, jurists call a fault, even if perchance it be not a fault before God, for example because it is either involuntary, or is not of such diligence as one is bound to employ. But if it be a voluntary omission of such diligence as one can and is bound to employ, it will be at once both a theological and a juridical fault.

Juridical fault is divided into gross, light, and lightest. Gross fault is the omission of the diligence which prudent men are accustomed to employ in such a case, in such a business; as if someone go out of the house without having closed the door of the inner room.

Light fault is the omission of the diligence which the more prudent are accustomed to employ; as if someone go out with the door of the room indeed closed, but not bolted.

Lightest fault is the omission of the diligence which the most prudent are accustomed to employ; as if someone did not try with his hand whether a closed and bolted door were well bolted.

It is asked, therefore, whether in simple damaging, in which no gain accrues to the damager, theological fault is required, or that he have sinned before God, in order that he be liable to restitution, or whether juridical fault suffices. Concerning which :

I say : No one, contract set aside, is bound to restitution by reason of damage inflicted before the sentence of the judge, unless he have admitted theological fault against commutative justice in inflicting the damage. This is the common teaching against Adrian and certain ancient authors.

Proof. The damager, in the case proposed, is not bound to restore by reason of a thing received ; because, as is supposed, he received nothing, nor has he been made richer by the damage : nor by reason of an unjust action ; for where there is no fault before God, the damaging action is not formally unjust : nor from positive law ; for none can be assigned outside of contract. Therefore from no heading is he bound to restore,

It is confirmed. If damaging merely materially unjust induced the obligation of restoring, it would follow that a madman, or one asleep, or one who damaged his neighbor by a mere chance event, would be held to restitution ; which no one admits.

Therefore, however much damage to another may follow from your act, if you have not truly sinned before God, either because you employed the due diligence, or because you omitted it through natural inadvertence or blameless forgetfulness, although it is called gross fault in law, you are not held to restore in the forum of conscience before the sentence of the judge.

And this is true even though the damager deal with a thing illicitly, provided it be not dangerous and as it were a way leading to damage, such that neither per se nor in the majority of cases does damage follow from it, nor could it have been foreseen in a human way as about to follow; because, although the cause is voluntary, it is nevertheless not voluntary as the cause of such damage, which could not be foreseen in a human way as about to follow from it. Hence, if while hunting in a prohibited place or time you kill a man, thinking invincibly that you are killing a wild beast, you are not held to restore on account of the homicide.

I said, « before the sentence of the judge ; » because the judge, where there is gross juridical fault, though there be no theological fault, through natural inadvertence or some other case, is accustomed to condemn the damager to restitution or rather to payment, or to the surrender of the animal, if the damage was inflicted through an animal, unless it be otherwise certainly evident that he is innocent. And the damager is held, more probably, to obey this sentence as just in the forum of conscience. For this sentence does not rest upon a false presumption, as certain ones think; because the judge condemns you not because he presumes you have sinned internally before God, but because you have sinned externally, that is, because you omitted the diligence which prudent men are accustomed to employ, on account of which juridical fault, though not theological, the laws decree the obligation of restoring, with the sentence of the judge supervening.

And indeed justly, both because gross juridical fault usually proceeds from theological fault, although the contrary sometimes occurs per accidens, and laws attend to what happens for the most part; and on account of the common good, namely that men be more attentive in guarding their own goods, and more cautious in avoiding damage to their neighbor.

[You will ask whether he is held to restitution who blamelessly placed the cause of the damage, if afterward he neglect to remove it.

I answer, affirmative ; because he who placed the efficacious cause of the damage, and does not retract it when he morally can, wills it virtually, and consequently becomes at that moment strictly, effectively and formally the unjust cause of the damage³⁵¹. ³⁵¹ S. Lig., lib. VI, n. 621.

I said, « when he morally can, » that is, without great and proportionate inconvenience, as is commonly taught.]

An unjust damager is called one who harms his neighbor in the goods of fortune, and yet does not thereby become richer. One is formally unjust and another juridically only unjust, according as the fault was theological or juridical. - But theological fault is called that which includes an offense against God, that is, formal sin, whether mortal or venial. But juridical fault is the omission of diligence, whence damage comes to another, whether it is a formal sin or not. This again is distinguished, and from the common interpretation of Roman law, is gross, slight, very slight. Gross fault is the omission of diligence which men are commonly accustomed to apply in similar affairs. Slight fault is the omission of diligence which the more prudent and more diligent men are accustomed to apply. Very slight fault is the omission of diligence which is customarily applied only by the most prudent and most diligent. - Cf. St. Alphonsus, n. 549. - Kenrick, tract. 10, part. 2, n. 177.

I say. An unjust damager is held to restore the whole of that which is equivalent both to the thing damaged and to the foreseen damages arriving beyond the thing damaged itself. The reason is that otherwise the injured owner would not be made altogether indemnified, which is required for repairing justice. - But in order that he be held to this from natural right, and consequently in the forum of conscience, before any sentence of the judge, it is necessary that he have damaged truly, efficaciously, and formally. Truly indeed, insofar as he violated a strict right through the injury of commutative justice; efficaciously, insofar as he was not only the occasion, but the proper cause of the damage, so that the effect can and must be imputed to him; formally at last, insofar as he adverted to the unjust action and properly sinned before God. - I said before any sentence of the judge, because after the sentence of the judge an obligation of restoring can arise in conscience even from merely juridical fault. For one must obey the just sentence of a judge; otherwise the laws would not provide for public security and would be empty. But the sentence of which we are speaking is just, because that law is enacted for the common good and tends to making men more cautious, lest they inflict damage on others. - Cf. St. Alphonsus, nn. 550 and seq.; and Hom. Ap., nn. 29 and 41. - Billuart, dissert. 7, art. 4.

Question 1. Whether theological fault is required for inducing the obligation of restitution for damage inflicted upon another's thing, which was held from some contract, for example, of lease, deposit, or loan for use, etc.?

Resp. It is controverted; but the affirmative opinion is, according to St. Alphonsus, very probable unless a special pact intervened. The reason is that the obligation of repairing an injury ought to pertain to the same forum to which the injury itself pertains. - I said unless a special pact intervened, because then a special obligation is knowingly and freely assumed. But theologians who hold the negative opinion affirm that this special pact is always present, not indeed expressly but implicitly; but they prove this by no solid argument. Cf. St. Alphonsus, n. 554. - Lugo, disp. 8, n. 106. - Lacroix, n. 177. - Antoine, part. 2, cap. 3, qq. 2 and 5.

Question 2. Whether he is held to restitution who indeed inculpably placed the cause of damage, but afterward did not prevent it, although he could have prevented it?

Resp. Affirmatively, and the reason is that each one is held from justice to prevent his action from harming his neighbor; therefore he is held also to prevent the evil following from his action from persevering; and consequently, once the error is known, he must correct it, and if he does not do so, then he sins gravely and assumes the obligation of repairing all the damages which come from this. Cf. St. Alphonsus, n. 564.

Question 3. Whether damage following from a cause culpably indeed placed, but already retracted when the damage is inflicted, must be repaired?

Resp. Affirmatively, at least if that damage was determinate and foreknown in species. The reason is that the damager then properly contracted the whole malice and assumed the obligation of restitution; but then he harmed not only affectively, but also by acting effectively and really. Therefore in this way too he must repair the injury, and simple retraction of the will does not suffice.

Question 4. Whether damage inflicted per accidens indeed, but while being occupied with an illicit work, must be repaired?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even confusedly. Nor does it matter that the action was illicit; for this pertains nothing to the notion of justice. Thus a cleric who, by being occupied with hunting contrary to the prohibition of the Church, killed a man as though he were a wild beast, is no more guilty of injustice than a layman who had done this. - Cf. Vogler, n. 170. - Lugo, disp. 8, nn. 72 and 82. - St. Alphonsus, Hom. Ap., n. 39.

Question 5. Whether you are held to repair damage which you inflicted upon someone by error, while you intended to harm another, for example, if you burn the house of Caius, which you think to be the house of Titius, your enemy?

Resp. It is much controverted among theologians, but with St. Alphonsus and others the negative opinion seems probable. The reason is that in this case the damaging action is materially only unjust toward Caius and affectively only unjust toward Titius. It is indeed true that then all the conditions required for urging restitution from unjust damaging are verified, but not in relation to the same person, which is altogether necessary. - Cf. St. Alphonsus, n. 620. - Lugo, disp. 17, n. 75. - Lacroix, n. 200.

Question 6. To what is he held who indeed inflicted grave damage but with light fault, for example, from defect of advertence, etc.?

Resp. More probably he is held to nothing. For he cannot be obligated either under grave obligation or under light obligation: not under grave, because grave obligation does not have proportion with light fault; not under light, because light obligation does not have proportion with a grave thing. - Cf. St. Alphonsus, n. 552. - Lugo, disp. 8, n. 56. - Vogler, n. 109.

Indeed the opinion of those who deny that there is a grave obligation of compensating grave damage inflicted by deliberate theological fault, but only venial fault on account of ignorance or inadvertence to formal gravity, even if the material and objective gravity is known, is probable. For this obligation is not certain; if it were given, it would be either from the thing accepted, or from unjust taking. But not from the first, because the thing is supposed no longer to exist either formally or equivalently; not from the second, because the obligation of restoring ought to be proportioned to the act itself insofar as culpable, and indeed against commutative justice, for the violation of which it is, as it were, a penalty, which cannot be above the demerit. But here the fault is light, and since, where no fault intervenes, there can be no natural obligation, so neither can there be a grave obligation where grave fault has not intervened. Finally, a grave natural obligation does not arise from a light sin, if there is no advertence to the objective gravity, or the material gravity of the damage, or the formal gravity. Cf. Wirceburg, vol. 6, n. 585.

Question 7. Whether he who inflicted grave damage through several venial faults deliberately committed is held under grave obligation to repair that whole damage?

Resp. 1st. Affirmatively, if the damage inflicted is upon the same person, although the damager did not sin gravely. The reason is that here he is held to repair the whole damage voluntarily and freely committed; but the whole damage was freely inflicted and besides is grave by hypothesis; therefore that whole damage must be repaired, and if the damager does not do this, then indeed he will sin gravely. But otherwise one must answer, at least probably, if minute damages were inflicted on diverse persons; because no one has suffered grave damage, not even radically, as when small little thefts are committed. Cf. Vogler, nn. 124 and 126. - Lugo, disp. 8, n. 69.

2nd. But others deny: for it makes little difference whether the objective gravity of the damage is known all together in one taking, or successively in several, if in neither is the formal gravity known. Those individual damagings were light; the formal gravity also was not known. In this case several light obligations can coalesce into one grave obligation just as little as several light sins into one mortal sin. Cf. Wirceburg, vol. 6, n. 587.

Nor should you say that this opinion is identified with proposition 38 condemned by Innocent XI: One is not held under pain of mortal sin to restore what was taken away by a few thefts, however great the total sum may be. But this is not to the point, for even if you prescind from the present question, that proposition was most justly transfixed, because it says universally that there is no grave obligation of restoring what is taken away by several smaller thefts. For certainly this obligation exists if, before he committed the last small theft, the thief adverted that he was completing a grave sum; if he had from the beginning the intention of inflicting grave damage by several little thefts; finally, if those little thefts still exist in the thief's possession either formally or in equivalent. In these cases a grave obligation is certainly given; but from the condemned proposition it does not follow that it is present when the formal gravity of the damage is not known.

Question 8. Whether you are held to repair damage coming to someone on the occasion of your unjust action, for example, if you have stolen and the theft is imputed to him?

Resp. Negatively, whether you did not foresee or did foresee that damage, indeed even if you acted deliberately so that your action would be imputed to him. The reason is that the intention, however unjust, does not make that work externally and materially also unjust with respect to a third party, when of itself it is not such. Except, however, if at some time the circumstances were such that between them and a grave suspicion concerning another there would be a true connection, or if someone expressly used those means which of themselves provide a most grave suspicion for accusing another. Cf. St. Alphonsus, nn. 635 and 636. - Lacroix, n. 157.

Question 9. Whether an owner is held to repair damage inflicted upon a neighbor by his animals?

Resp. Affirmatively, if from theological fault he neglected to watch over the animals. For each one by natural right is held diligently to guard his animals, lest they inflict damage on others, just as he must guard against detriment coming to his neighbor from his own actions. But, theological fault being excluded, he is indeed not held before the sentence of a judge, but he is certainly held after the sentence, as is clear from what has been said.

But as regards us, Kenrick has these things: "By most American laws, as also by English laws, animals inflicting damage are detained until satisfaction is made to the injured person, and they are sold by public authority if the owner neglects to redeem them. But if the owner of the estate omitted to enclose it with a lawful fence, he can recover nothing, but he himself will be held to repairing the damage, if he has wounded or killed the animal." - Cf. Kenrick, tract. 10, part. 2, n. 185.

Question 10. Whether he is held to restitution who prevented another from obtaining some good?

Resp. 1st. Affirmatively, if the one impeded has a strict right to that good. 2nd. If he does not have a strict right to obtaining the good, one must distinguish: Affirmatively, if by unjust means he is impeded from obtaining the good; for anyone has a strict right not to be impeded unjustly from the obtaining of a good of which he is not unworthy. In this case restitution must be made according to the certainty or probability by which he is judged otherwise to have been going to obtain such a good. Negatively, if he is impeded by means just in themselves, because then no right of another is violated. - Cf. St. Alphonsus, Hom. Ap., n. 61. - Lacroix, n. 69. - Laymann, l. III, tract. II, cap. VII.

Hence he exists as obligated to restitution toward a son who induces the father to exclude him from an inheritance to which by civil law he has a strict right. Likewise he is held to restitution who, by lies scattered against a poor man, prevents alms from being given to him. Those sellers also are held to restitution who unjustly detract from other sellers and from the merchandise for sale among them, in order that they may turn buyers away from them and entice them to themselves.

MANY assert that only he who is the true Cause of the Damage is subject to restitution, without whom the damage would not have been. Innoc. cap. sicut dignum, extra de homic.; Hostiensis there; Altissiodorensis lib. IV. tract. de Poenit. cap. de Restit. quaest. 3; Rich. 4. dist. 15. art. 5. quaest. 4; Sylvest. V. Restit. 3. quaest. 6; Adrian. 4. quaest. 4. de Restit. §. De concurrentibus cum fure; Nau. man. cap. 7. num. 20; Caspensis disp. 1. sect. 9. §. 2; Bassaeus V. Restit. 3. num. 3. §. 2. Because otherwise the causes would be inefficacious.

THE OPPOSITE is held by Caietanus here, art. 7; Ioan. Medin. quaest. 7. de Restit.; Sotus lib. IV. de iustit. quaest. 7. art. 3; Valencia disp. 5. quaest. 6. puncto 3. The reason is, because they operate efficaciously. This was the view of D. Bonavent. in spec. animae, cap. 2, and Clatius cap. 1. §. Damnificatio. Therefore the Advocate who unjustly defends a Client is bound to Restitution — otherwise, one who would still unjustly covet the inheritance, which he would invade by others if he did not otherwise obtain it.

IT IS PROVED from the Holy Doctor. That is a true cause, posited, the effect is posited, as the Holy Doctor and others say. For if many wished to kill Peter, would not one who alone killed him be guilty of injustice, even if he would have to be killed by the others? See Valencia, and Caietan.

Philip, a Catholic, placed poison in his garden to kill harmful animals. Sometimes he had found a cat or even a dog killed by the poison in the garden, when the thought occurred to him: “Would that this valuable dog of my neighbor Caius were killed in this way, for Caius has often been troublesome to me, and not rarely have I found his dog entering my garden.” Therefore, led by the hope of killing the dog of Caius, which is descended from the breed called Saint Bernard, he placed a larger quantity of poison, and the next morning found that unfortunate dog dead in a corner of the garden. After it was buried, his conscience pricked him concerning restitution to be made. Hence it is asked:

1. Can the intention make an external act unjust?

2. What is an occasional cause and an accidental cause of damage?

3. When is one who posits the cause of another’s damage excused from making restitution, even if the damage was foreseen or desired?

4. What is to be said of the case?

1. Can the intention make an action unjust which otherwise is not unjust? Some theologians, with Lugo, assert that it can, but the common opinion is against them. For the intention with which an action is done does not alter the nature of its influence on the effect produced, and whether an act is unjust or not, depends on this influence.¹

1 St. Alphonsus, book iii, no. 584.

2. What is an occasional, and an accidental cause of damage?

An occasion is that which, being put, an effect follows from some other cause. Thus if A murder B, and C is taken up on suspicion, A is the occasion of C’s arrest. An accidental cause is that from which the effect was not probable, though possible, as if A digs a trench where few people pass, but B, a blind man, passes that way, falls into the trench, and is killed; A is the accidental cause of B’s death.

3. When is one who puts the cause of another’s damage excused from making restitution, even though the damage was foreseen and desired? Besides theological fault, it is necessary that the action of him who is to be obliged to make restitution be the efficient cause of the damage, and that it be unjust. For unjust actions alone impose the obligation of making restitution, and nobody is bound to make restitution for damage which he did not cause.

4. The case. Philip poisoned his neighbor’s dog out of spite. He certainly committed a grave sin against charity. But as he put the poison in his own garden, into which his neighbor’s dog sometimes strayed, his action was not the efficient cause, but only the accidental cause of its death. He may therefore be excused from the obligation of making restitution, according to the better opinion.