How Much is to be Restored

498. Notions. 1. The quantity of restitution, when several concur in inflicting the same damage, can be different in three ways: for they are bound either in solidum absolutely, or in solidum conditionally, or only pro rata.

2. Solidarity, or the obligation of restoring in solidum, is the burden incumbent on each cooperator of repairing the whole or solid damage which was inflicted by several. Solidarity is called absolute if someone alone must repair the whole damage, while the others are bound only if he is deficient; it is called conditional if someone is bound to repair the whole damage only where others do not restore. If he restores the whole damage, in the first case he cannot demand compensation from the other cooperators; but in the other case he can demand compensation from them by right. The obligation of restoring pro rata is the burden incumbent on each cooperator of restoring only part of the damage inflicted.

499. Principles. In general it must be said that only he who is the cause (whether physical or moral) of the whole damage is bound to restitution in solidum. In particular:

1. He who together with others is the cause (whether physical or moral) of the whole damage, and indeed the principal cause, is bound to restore in solidum absolutely: for because he is the cause of the whole damage, he is bound in solidum, and because he is the principal cause, he must repair it absolutely; for others acted in his name and as his instruments, and therefore are bound to restitution only if he is deficient.

The principal cause is the one mandating with respect to the mandatary, and the one counseling who takes care that the counsel be executed solely in his own favor. Therefore he who by his mandate induces servants to steal, who seeks companions for carrying off a stolen thing, is bound to restitution in solidum absolutely; the cooperators are bound only if he is deficient.

2. He who together with others is the cause (whether moral or physical) of the whole damage, and indeed an equal cause, is bound to restore in solidum conditionally: in solidum indeed because he inflicted the whole damage, but conditionally because he inflicted it not alone but together with others.

It is asked when someone must be held as the efficacious cause of the whole damage.

a. He inflicts the whole damage who by common conspiracy concurs with others for inflicting damage, as if several conspire to despoil a house, because each influences at least morally the whole damage, provided the conspiracy is true and efficacious. But true conspiracy is had when each determines the others by persuasion, exhortation, etc., to inflict damage.

b. He inflicts the whole damage whose cooperation, whether moral or physical, is necessary for inflicting the damage, so that if he did not concur the damage would not be done, as if two despoil a traveler whom one could not despoil, or if someone casts a vote necessary for an unjust sentence which the others, if he were absent or contradicting, would never have given. For although his cooperation does not suffice for inflicting the whole damage, nevertheless, if the cooperation were denied, it could have impeded the whole damage. If someone helps a thief to carry off a chest which neither could carry alone, each is bound to repair the whole damage, because each is the cause of the whole effect insofar as without his help there would have been no effect.¹

c. He inflicts the whole damage who is the moral cause per se sufficient of the whole damage, as if two give counsel for inflicting damage which each so influences the whole damage that even one would have sufficed for inflicting the same, or that even without the other the damage would have been inflicted: for it cannot be denied that several moral causes can be total or adequate causes of the same effect.²

3. He who together with others is the cause (whether moral or physical) of partial damage is bound to restore pro rata of the influence on the damage, as if several without mutual conspiracy concur to despoil a tree or to ravage a crop.

a. A partial cause of damage is he whose action is neither sufficient nor necessary for producing the whole effect, so that even without that action the effect would have happened, although it made it easier; as if four carry away another's beam which even three could have carried away; if three ravage a field which even two would have ravaged; or if someone suggests to a thief determined to steal a motive for stealing which indeed moves him but by itself alone could not have moved him. Therefore in this case each is bound to restore pro rata of cooperation.

b. They dispute whether he whose physical action is indeed sufficient for producing the whole effect, but not necessary, so that even without it the effect would have happened, is a partial or total cause of the damage, because it is not sufficiently established whether even several physical causes can be total and adequate causes of the same effect. Since the opinion affirming him to be only a partial cause is truly probable, in this case the obligation of restoring in solidum is not to be established, but only pro rata. Therefore if two without mutual conspiracy take away a chest filled with things which one could have taken away and would truly have taken away if the other had been absent; if two at the same time discharge into another's goat and kill it, which even one would have killed, each is bound only to part of the damage.

There are some who distinguish whether several together place an action sufficient of itself for the effect, as if two together discharge into another's goat and kill it, or whether they do not together place an action sufficient of itself for the effect, as if someone on another side applies fire to a house to which another has already applied fire. But this distinction does not seem necessary, since in each case the damaging action is a partial cause, from which no obligation arises except of restoring part of the damage.

4. What is to be done in doubt is resolved from the principles of probabilism. Therefore:

a. In doubt whether someone influenced the whole damage, he is not bound to restore in solidum, because the obligation of restoring in solidum is not certainly established.

b. In doubt whether others have restored their part, likewise he is not bound to repair the whole damage if it is truly probable that others have already restored or will restore: for the obligation of restoring the part of others is doubtful.

For practice St. Alphonsus wisely warns: "It must be noted that the rude, even if they are bound in solidum, it is rarely expedient to oblige them to the whole, since with difficulty they persuade themselves that they are bound to restore the part taken away by companions. Indeed, it can be sufficiently presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them, since otherwise there is great fear that they will restore nothing if they are obligated to the whole."³

¹ Cf. Ballerini-Palmieri III, n. 376.

² Cf. Ballerini-Palmieri III, n. 380 and 388.

³ St. Alphonsus, n. 579.

We have already seen what must be restored in the case of one who is in possession of another’s property, or in case of unjust damnification to another. In general, the damage inflicted is the measure of the restitution to be made, for justice requires that the owner should have back his own. When there were several who co-operated in injustice a special difficulty arises as to whether each and all are jointly or severally bound to make restitution. If two thieves assist each other to break into and rob a house, what are the obligations of each of them with respect to the restitution to be made ?

In such cases as this each must, of course, make restitution for the harm which he personally and immediately caused. If each one takes his share and makes reparation for that portion of the injustice which he committed, the whole damage will be repaired. But sometimes some of the partners of injustice are unable or unwilling to make restitution for their share in the unjust act; the question then arises whether the rest are bound to make good the whole damage inflicted.

Each and all will jointly and severally be bound to make reparation for the whole damage, or in solidum, as divines say, when each and all were jointly and severally the efficacious moral or physical cause of the whole damage; for we are bound to make reparation for the damage which we have caused, and for that alone. This will be the case under the - following circumstances: (az) When the action of each and all is the necessary and sufficient cause of the whole damage. This condition is fulfilled when one commands or counsels an unjust act and another in consequence performs it.

(6) When the action of each is sufficient to cause the damage, and it has an actual effect in producing it, though the effect would have been produced without it. Thus if two men inflict fatal wounds on another, each is responsible for his death and all losses necessarily connected with it. In the same way, when several conspire together to commit an injury, and mutually encourage and assist each other to inflict it, all are bound jointly and severally to make restitution, (c) When the action of each is necessary for the production of the effect, so that it could not be produced without it, though the action of each would not be sufficient by itself, all are bound jointly and severally to repair the injury. Thus if two thieves carry off a safe which they could not carry alone, each in the other’s default must make good the whole damage.

When several acting together, but without mutual conspiracy in the strict sense, inflict injury on another, divines are not agreed as to whether each and all are bound to make reparation for the whole damage. Each is certainly bound to repair the damage due to his personal action, but probably be may be excused from restoring more than is equivalent to the damage which he actually caused. Thus, though those responsible for an unjust war are bound to make compensation for all the unjust damage which it causes, yet the private soldiers are only bound to make restitution for the damage which they personally cause. In the same way, if a crowd damage the property of an obnoxious political opponent, individuals who formed the crowd will only be obliged to make good the damage which they severally caused. Similarly, if injustice be done by picketing in a strike, the leaders will be bound to make reparation for all the injuries inflicted; the men who take part in it may be excused if they contribute their quota.

What is the quantity to be restored? - As much must be restored as the other has been injured. The reason is that by force of commutative justice equality must be preserved, and when injured it must be repaired. But it is not repaired unless an equation is made between what was taken away and what is returned. Hence, if someone is damaged because that which he actually had is taken away from him, such damage is always to be restored according to the recompense of an equal thing. But if someone has been damaged by being impeded from acquiring what he was on the way to having, it is not necessary to recompense such damage equally, because it is less to have something virtually than to have it actually; but recompense is to be made according to the condition of persons and affairs. L. 614.; St. Thomas, 2. 2, q. 62, a. 1, 3, 4, 5.; C. A. 1323, 1411, 1412.; C. B. 249 seqq., 272.

What is solidarity? Solidarity, or the obligation of restoring in solidum, is the burden incumbent of repairing the whole damage inflicted. For the reason for restoring, or repairing damage, is because one was the cause of the damage. Therefore he who was only partially the cause of the damage is held only to a partial restitution or reparation of the damage, namely in that part in which he himself was the cause of the damage, whether he himself alone injured, or whether others also partially injured separately from him, and then each one is held for the damage inflicted by himself. But he who was the cause of the whole damage must repair the whole damage. Therefore, in order that one be obliged in solidum to restitution or reparation of damage, he ought to have been the efficacious cause of the whole damage. But if only he himself is the efficacious cause of the whole damage, he indeed is held in solidum or to repairing the whole damage by himself alone, but with no solidarity with others. But if, together with other cooperators, he was the cause of the whole damage, then solidarity with others is present, and together with others he is held in solidum to repairing the whole damage. Together with other cooperators; nevertheless, if several, but separately one from another, were an adequate cause of the whole damage, each is held to repairing the whole damage, which however is to be divided equally among all if all restore; and so also all are held in solidum. But if one placed an inadequate cause of damage, e.g., wounded an ox non-lethally, and another an adequate cause by killing the ox, the former is held concerning the wounded ox, the latter concerning the killed one; the former concerning the damage inflicted by himself, the latter concerning the whole, or in solidum. - C. A. 1391, 1302.; C. B. 840.

When is someone the total cause of damage? - Someone can be the total cause of damage either morally, by moving others to inflict damage, or physically, by inflicting and executing the damage, C. A. 1301. Someone is the physical total cause of damage when he places an action necessary and sufficient for the whole effect, as if someone fires upon another in order to kill him; when he places an action sufficient, although not necessary, actually influencing the whole effect, as when two at once fire upon another and kill him; when he places an action indeed insufficient, but necessary, as if four cannot carry away a beam, a fifth approaches, and they carry it away.

The reason is that in all these cases one influences the whole damage by his action. Someone likewise is the moral cause of the whole damage when by mandate, counsel, etc., he moves by an influence necessary and sufficient for inflicting the whole damage; when, together with another or with others acting morally, he concurs by a moral influence of itself sufficient for the whole effect, although not necessary, yet actually influencing the whole effect, as if several are at once commanding, counseling, etc., and any one of them by his mandate, counsel, etc., suffices for the execution of the whole effect, and actually moves efficaciously to that execution; when he concurs toward the whole effect by an influence necessary, although not sufficient, as if someone shows the sole way of executing the thing.

The reason likewise is that in these cases one morally influences the whole effect. Someone is the cause of the whole damage, whether physical or moral, in the case of a common conspiracy, although he concurs toward the damage by only a partial influence. For with a moral conspiracy and unity of several among themselves standing, each one participates in the influence of the others, and so becomes the cause of the whole.

Someone is not the cause of the whole damage, whether physical or moral, if he is not sufficient for the whole effect, nor is necessary for it, because without him the whole effect would still follow; as if four carry away a beam, and a fifth approaches, helping them, with the case of conspiracy excluded, since the other approaching has an influence merely partial, and since no conspiracy is present, he is not morally joined to the others.

But the question is whether one is the cause of the whole damage who influences it by an influence sufficient for the whole damage, but not necessary, with the case nevertheless excluded that he influences at once together with others; e.g., if someone, without any conspiracy with others, sets fire to another's house, which others had already set on fire, gives counsel already given by others, etc. Others probably affirm, because since the influence is sufficient for the whole damage, then he is the cause of the whole damage, since he influences the whole. Others more probably deny, because since that influence is not necessary for the whole damage, and is added to another influence, the influence in reality is only partial in the whole damage, which would nonetheless have occurred without such concurrence. L. 579.

Whether you are held in solidum in doubt whether you influenced the whole damage? Resp. Negatively, because a certain burden cannot be imposed for an uncertain obligation. L. 577. Cf. C. A. 1303.

Whether you are held in solidum in doubt whether others restored their part pro rata? Resp. More probably negatively, if, after diligent inquiry has been made, the doubt perseveres, because a cooperator is held to nothing besides his own part, except in the defect of another; and if there is doubt about that defect, there is doubt about the obligation.

694. • The quantity of restitution must be measured from the quantity of the thing accepted, or from the quantity of damage inflicted, or of influence upon the injury of the neighbor.

Since special difficulties occur concerning solidarity alone, concerning it alone we will treat specially.

Definition. Solidarity, or the obligation of restoring in solidum, is the burden incumbent on each cooperator of repairing the whole damage inflicted.

Division. A twofold solidarity is distinguished, namely: 1. absolute, which has place when someone is held to repair the whole damage; 2. conditioned, when individual cooperators are held to restore for other cooperators who are lacking.

695. Principles. - I. Any one of the cooperators efficaciously concurring in the damage, so that this whole damage can be morally ascribed to him, is held to restitution in solidum, that is, in full, either absolutely, or at least conditionally. The reason is that each is an efficacious and unjust cause of the whole damage, and consequently must repair the whole. - Vogler, n. 342, and others commonly.

II. But to some cooperator the whole damage can certainly be ascribed in a twofold case, namely: 1. whenever his cooperation is necessary, although not sufficient, for inflicting the whole damage; for example, if you furnish a vote necessary for an unjust sentence; 2. whenever the cooperation is done from an efficacious conspiracy by which the damagers so efficaciously excite themselves to the damage that, if each one did not concur, the damage would not occur. - St. Lig., n. 579. - Lugo...

III. Whoever is the principal cause of the damage is held to restore in solidum absolutely; but the other equal cooperators, or secondary causes, are held only conditionally. The reason is that the principal agent, such as one mandating, a leader, etc., by the very fact undertakes in himself absolutely the whole burden of repairing the damage, since he himself inflicts it primarily and uses the others only as instruments for damaging the neighbor. But who ought to be called the principal cause will be said below, n. 702. But as regards secondary causes, St. Lig., Hom. apost., n. 54, deservedly warns that in practice it is rarely expedient to warn the unlearned or oblige them to repair the whole damage, although they are certainly held in solidum; because they do not easily persuade themselves that they are held to restore even the part taken away or destroyed by others.

696. Questions. - Q. 1. Whether you are held IN SOLIDUM in doubt whether you influenced the whole damage?

Resp. More probably negatively with the common sentence, because a certain burden cannot be imposed for an uncertain obligation. - St. Lig., n. 579, etc.

Q. 2. Whether you are held IN SOLIDUM in doubt whether the others restored their part pro rata?

Resp. More probably negatively, if after diligent inquiry the doubt perseveres, because a cooperator is not held to anything beyond his own part except in the defect of another; and if there is doubt concerning that defect, there is doubt concerning the obligation. - Roncaglia, Salmant., etc., against others.

Q. 3. Whether an obligation of restoring IN SOLIDUM is given where cooperation indeed influenced the whole damage of an individual thing, but is not of itself sufficient, nor necessary, nor proceeded from strict conspiracy; for example, if four carry off a beam which three would also have carried off?

Resp. Negatively, because since the whole reason of the obligation is influence upon the damage, it ought not be greater than the influence itself. On the other hand, he who would concur in a part of the damage, although with others he would concur in the whole damage ¹, surely would not be held to restore the whole; therefore, by parity, he who concurs partially in individual damage is held only partially to the reparation of the damage, because he posited a partial cause. - Lugo, D. 19, n. 82. - Vogler, n. 343. - St. Lig. says this is probable, n. 579.

¹ The sense is: if someone by his work concurs only in part of the damage, for example, of the devastation of a garden, but concurs with others in the whole damage to the extent that the remaining part of the garden had already been devastated by others, but he destroys what he finds left intact by them; this person surely is not held to repair except the part of the damage of which he was the author.

697. • Q. 4. Whether you are held IN SOLIDUM if your action indeed was sufficient for inflicting the whole damage, but by no means necessary, nor proceeded from conspiracy; for example, if you set fire to another's house together with several others?

Resp. It is controverted. Not a few probably, indeed also more probably, affirm it, because where your action was sufficient for the damaging effect, in reality the whole damage must be morally ascribed to you and to each of the others. Roncaglia, Salmant., etc. - But others probably deny it, because although the damaging action was sufficient for the whole damage, nevertheless it had only a partial influence on it, since it was neither necessary, nor common with the others from conspiracy. Therefore he is not the moral cause of the whole damage. Nor does it matter that it is a matter of an individual thing, because the cooperation does not extend to the whole damage. Yet understand this whenever without your concurrence the damage nevertheless would have occurred; for otherwise even your action would have to be called necessary to it. - Sporer. - Navarr., etc. - St. Lig., n. 579 and Hom. apost., n. 55, holds each sentence probable.

698. Resolutions. - 1. If one of the cooperators has repaired the whole damage, the others are freed from every debt toward the creditor; but he who restored the whole has recourse against the other damagers equally obligated, as clear reason demonstrates ².

² This resolution is to be understood of those cooperators of whom each is held for his own rate. See the things to be said below in article III.

2. If to a thief who on account of efficacious motives is now wholly determined to steal, you suggest a new motive which adds a stimulus to him, you are not held, if the other cooperators are lacking, to repair the whole damage, because your motive did not influence the substance of the damage.

3. Indeed probably for the same reason you ought to refund nothing from justice if you only induce another to inflict damage somewhat sooner or more briskly. - See Casus, n. 693.

2. Quid et quantum? What is to be restored and how much? The answer to this question, broadly speaking, is: Everything a man unjustly possesses must be restored to the rightful owner, and all damage unjustly inflicted upon another must be repaired. If restitution cannot be made in full, it should be made as fully as possible, even if the person obliged to make it has to limit his expenses to the necessaries of life. He should further endeavor to advance the interests of his victim to the best of his ability, avert injury from his property and pray God to bless him.

In addition to material and temporary, spiritual damage must likewise be repaired. In cases where the positive law requires less than the law of conscience, he who is bound to make restitution should not be satisfied with complying with the demands of the law, and if the law imposes more onerous duties than conscience, he must comply with the former, at least after judgment has been rendered in court (post iudicis sententiam). Note, however, that when a judicial sentence imposes more than the moral law of nature requires, the party entitled to restitution should not insist on the plus, especially if the other party is poor.³

³ Noldin, II, pp. 520 sqq.; Tanquerey, III, pp. 234 sqq.; Slater, I, pp. 426 sqq.

326. General principle. - Restitution is to be made in that mode by which violated justice is repaired to equality, that is, in a mode apt that the thing arrive into the hands of the owner or creditor: for then the end is attained, namely equality. Therefore no special mode is prescribed, but it can be done:

a) openly, or also secretly and with the owner unaware; unless, however, scandal given by the injury must be repaired, namely, if restitution is owed from a public delict, or in restitution of reputation publicly injured and therefore to be publicly repaired;

b) immediately by oneself, or mediately through another worthy of faith. To this office a confessor is sometimes chosen by the penitent, who can accept, provided he acts prudently lest the seal be injured or other inconveniences arise. To avoid this he will be able to restore through the mediation of another priest or to transmit money from another place; and also to render the penitent more certain or to obtain testimony concerning the restitution made, so that every suspicion may thus be avoided;

c) directly, under the very form of restitution, or indirectly under the species of labor spontaneously and gratuitously undertaken for the utility of the owner, or of thrift, or of a truly useful donation, in which case, however, the debtor should take care lest the creditor repay another gift of almost equal value.

327. Questions. - A. What if the owner to whom restitution has been made under the species of donation again himself repays a gift to the one restoring?

R. 1) If it is established that the restitution made was the sole motive cause of this donation, the gift cannot be kept, because there is no donation which is made from error concerning the chief motive of the donation;

2. if it is established or deservedly presumed that the owner would have conferred that gift even without that restitution, the gift can be kept, although that restitution moved him somewhat to the gift;

3. sometimes, even if the gift cannot per se be kept, the debtor is excused from restoring it, for example, if the thing given is of slight value or cannot be returned without offense to the giver; yet generally the value of the gift can be restored secretly.

R. If someone has an express and in every way complete will of donating, then by the donation the obligation of restoring is not extinguished; otherwise, as prevailing, the will of implicitly restoring can be considered, because he is judged to have willed to pay debts before lavishing gifts, whence he also probably would have had this will explicitly if he had been conscious of the obligation of restoring.

Whence, if restitution is to be made to the poor, a great part of the alms given can be considered as restitution, provided they were donated not before but after the obligation was contracted.

328. In what way must those things be restored which have been taken away from the State or municipality?

If a legal and sufficiently safe mode is prescribed, so that what is restored certainly reaches the public treasury, that mode is to be employed.

But if a legal mode is not prescribed, but is sufficiently safe, it can be employed.¹ Or it can be done directly in another way through official administrators or prefects of taxes, provided enough care is taken that they do not retain it for themselves, for example, by warning several.

¹ In Belgium a mode was indicated, although not prescribed, by the letters of the minister of the treasury, 10 Mar. 1837: "The payments (of voluntary restitutions) will be received at the registration offices... The receiver will deliver to the person who makes the payment a receipt in triplicate... One... will be preserved by the person who has made the payment. The other two will be transmitted by him, one to the ministry of finances, the second to the Director of registration."

It can also be done indirectly, by destroying titles of public debt issued by the State or municipality, or postal tickets, provided that they belong to the government; but not by destroying bank notes, because they are only protected by the State.

Some say that restitution can be made to those who have been unjustly injured in goods by the civil power, such as religious or Catholic schools; but that means is not expedient because it easily exposes one to illusion, and because such injustice ought to be altogether undoubted toward a determinate institute, nor ought the injustice to have been condoned.

Others say that it can be made to the poor, whom it belongs to public society to assist; but that does not seem probable, because society satisfies this obligation in other ways, nor does it belong to private persons to dispose of public goods by private authority. Whence this means could not be employed unless no other way lies open by which restitution can safely be able to reach the public treasury.

St. Alphonsus, III, 579; ed. G., II, p. 71; Laymann, l. 3, s. 5, tr. 2, c. 6; Salmant., tr. 13, c. 1; Noldin, II, n. 498; Aertnys, tr. VII, n. 335, and other cited authors.

Since several damagers can act either separately, each his own thing, or jointly, and some can influence the damage more or less than others, hence from such order and measure of influence, the order and measure of restitution is to be derived. To explain this we shall treat: 1. of the measure of restitution to be assigned to each damager; - 2. of the order to be observed among those who must restore. But the order of those to whom restitution must be made will be described in the following chapter.

990. Things to be noted beforehand. The measure of restitution, with respect to each damaged person, we already know from the preceding chapter, where it was said that damage must be repaired according to equality. - Here the measure must be determined with respect to each damager, when several have concurred, by diverse influence, in the same damage.

I. There is a threefold genus of cooperators: 1. There are given cooperators of whom one is the principal cause of the damage, while the others are his instruments. 2. There are given cooperators who are concauses of the whole damage, who produce the whole damage equally efficaciously, whether because conspiracy preceded, or because each necessarily needed the help of another, or finally because each sufficiently concurred in the whole damage, for example two counselors. 3. Finally there are given cooperators who separately, independently from others, effect this or that, from which the whole damage arises.

II. The measure of restitution is twofold: for some are said to be obligated in solidum, others simply pro rata.

1. The obligation of restoring in solidum, or solidarity, is the burden lying upon individual cooperators of repairing the whole damage inflicted; and it is subdistinguished. For it is a) either absolute, if someone is held alone to repair the whole damage, without having the right of recompensing himself from the other cooperators; b) or conditioned, if each one indeed is held, unless others refund their part, to restore the whole, but with the right of recompensing himself from these. Hence such a one is said to be obligated pro rata and in solidum.

2. The obligation of restoring simply pro rata is the burden lying upon each one of repairing only that part of the damage which corresponds to his cooperation.

991. PRINCIPLES. I. Whoever was the principal cause of the whole damage is held to restitution in solidum absolutely. 1. In solidum, because he was the cause of the whole damage. 2. Absolutely, because the other cooperators were only his instruments, and whatever was done by them was done in the name and for the favor of that one. Thus all (III, 580, 4).

Hence, for example, a thief who calls others to carry away stolen things and uses them as instruments is held to restore in solidum absolutely. Say the same of one mandating. See nevertheless n. 995, 3.

992. II. Any one of the equally principal cooperators, concurring efficaciously in the whole damage, is held to restitution in solidum conditionally. 1. In solidum, because the whole damage must be ascribed to his action. 2. Conditionally, because, from the hypothesis, the same damage must also be ascribed to other concauses (III, 579).

Hence, if two robbers inflict two equally lethal wounds, or despoil another, yet so that one does not suffice for completing the work, each is held in solidum conditionally to restoring (cf. Ami du Cl., 1911, p. 202). - Likewise, he who furnished a suffrage necessary for an unjust sentence. Cf. Gury, I, 695; German Code, 830, 840; Austrian, 1301-1304.

993. III. Those who separately, without conspiracy and without mutual aid, have contributed to inflicting the same damage are held individually for the pro rata part of cooperation. The reason is that none of them was the efficacious cause of the whole damage. - Hence, if several, without mutual help or motion, concur in stealing a treasure, in stripping a vineyard, each of them is held only pro rata (Praxis Conf., 44).

994. Questions. QUAER. 1. To what is an unjust cooperator held, if without conspiracy he concurs in an individual or undivided damage, for example in burning a house?

Resp. 1. If he concurs in the whole damage totally, or with total influence, namely so that without his work the damage would not have happened, he is certainly held to the whole, that is, pro rata and in solidum; even if, if he had failed, another certainly would have furnished the same work. Thus commonly with Lessius; because he was held from justice both not to place a partial cause of damage, and to deny his concurrence for impeding the whole damage.

2. If he concurs partially, or with partial influence, namely so that, if he had failed, the whole effect would still have been placed by other concauses, he is held only for his pro rata part. The reason is that in such a case, although the whole damage proceeded from him and the concauses indivisibly and by one action, nevertheless from individual persons it proceeded only partially; hence the whole damage is by no means to be imputed to individual persons. Thus probably Navarrus, Lugo, and others, against others who think that they are held in solidum conditionally (III, 579; Crolly, III, 1054).

QUAER. 2. Whether one is held in solidum, in doubt whether he was the cause of the whole damage?

Resp. With the common opinion: He is not held except to his part; because a certain burden, namely of restoring the whole, cannot be imposed for an uncertain obligation. - Except, unless by his action he rendered the matter uncertain (cf. n. 963, q. 2).

QUAER. 3. Whether, in the case of conditioned solidarity, he who doubts whether others have restored their part is held to restore the whole?

Resp. Affirmatively; because, in the case, the right of the owner of recovering the whole possesses; and the obligation of rendering him unharmed holds the guilty person until the latter has proved, or has been morally certain, that full payment has been made. Cf. n. 947.

PRACTICAL RULES. "The uneducated, especially those who are of a conscience little fearful, can with difficulty be persuaded to restore what has been accepted by others; and on the contrary, the owners themselves are content with their portion, for this very reason, that if someone were obligated to the whole, he would easily omit restoring, not to say what the others accepted, but even what he himself accepted" (III, 579). Therefore let the confessor exhort each of these to restore what he owes, without explaining the quantity, remitting himself to the dictate of that one's conscience. Cf. Praxis Conf., n. 44; H. Ap., X, 54. See the things already said in n. 929.

This question is closely connected with the preceding one. For to one knowing in what measure he ought to restore, it immediately comes to be inquired whether another, who cooperated with him in inflicting damage, is held to restore before him, or after him, or equally with him.

995. PRINCIPLES. I. The order of restitution follows the degrees of concurrence, if the cooperators have concurred in the damage in a different degree; for example, if one mandated, another counseled, another executed. Thus commonly (III, 580; cf. Lugo, disp. 19, s. 4).

Now the degrees are the following:

1. The first place is held by the unjust detainer of another's thing; for the thing cries out for the owner. If he consumed the thing in good faith, he is held to nothing, except insofar as he has become richer; if he consumed it in bad or doubtful faith, he is held to restore its whole price, because "he is regarded as possessor who by fraud has ceased to possess" (Rule 36, in the Sext). Here the things determined in nn. 935-948 have force.

2. When the unjust detainer fails, likewise if it is a question of mere damage, the one mandating is held, because he is the principal author of the damage. - The same must be said of one counseling who persuaded another to inflict damage for his favor, or who induced him into invincible error; for he is equated with one mandating.

3. The executor is held, under which name also comes a participant in the crime, for example an adulterer consenting because of fear; the reason is that the executor, as one physically influencing the damage and acting also in his own name, is the principal cause of the damage after the one mandating; therefore he must precede the one counseling properly so called and the others.

4. Other positive causes are held, such as those giving counsel for the favor of another, etc. But among these there is no order, because there is no subordination; for the one counseling does not act through the one consenting, nor the one consenting through the flatterer or receiver. Therefore the whole primary damage cannot be imputed to any one (cf. 996).

5. Negative causes are held, namely in the defect of all those positively cooperating. But among these also no order is to be assigned, because none of these causes is the instrument of another. Yet from contract he is held before the others to whom care of the thing was specially committed. Cf. Lehmkuhl, I, n. 1210.

996. II. Cooperators who have concurred in the same degree must restore indiscriminately, for example two mandating, two consenting. Yet attention must be paid to the measure of influence or efficacy which each contributed to perpetrating the injustice (III, 581).

From these things you will deduce: 1. If the principal cause, or cause of a superior degree, has restored or obtained condonation, the secondary causes which come in an inferior degree are held to nothing.

2. If one of the secondary or subaltern causes has restored or obtained condonation, the superior cause is not for that reason freed; for this cause must make unharmed either the inferior cause which has already restored, or the owner who condoned to the inferior cause.

3. If one of the causes obligated pro rata and in solidum has restored the whole, the others are held to refund their parts to him. If any of them cannot or will not restore, his part must be returned by the rest. - If he has obtained condonation, the other causes of the same degree are not for that reason freed, unless the condonation was altogether full, or can deservedly be presumed such.

It must be noted "that if a creditor promises to one of the debtors equally principal that he will not molest him, he is judged to remit that one's part; for if he were to exact the whole from the others, that one would be compelled by them to restitution, and thus the promise would be vain" (III, 581; cf. Laymann, l. III, tr. 2, c. 6, nn. 3-5).

777. • The quantity of restitution must be measured from the quantity of the thing accepted, or from the quantity of the damage inflicted, or from the influence upon the injury of the neighbor.

Since special difficulties occur concerning solidarity alone, we shall treat specially of it alone.

Definition. - Solidarity, or the obligation of restoring in solidum, is the burden incumbent upon the individual cooperators of repairing the whole damage inflicted.

Division. - A twofold solidarity is distinguished, namely 1° absolute, which has place when someone is bound to repair the whole damage; 2° conditioned, when individual cooperators are bound to restore for other failing cooperators.

778. Principles. - I. Any one of the cooperators concurring efficaciously toward damage, so that this whole can morally be ascribed to him, is bound to restitution in solidum, that is, integrally, whether absolutely or at least conditionally. The reason is that each one is the efficacious and unjust cause of the whole damage, and therefore must repair the whole. - Vogler² and others commonly.

II. But the whole damage can certainly be ascribed to some cooperator in a twofold case, namely 1° as often as his cooperation is necessary, although not sufficient, for inflicting the whole damage; for example, if you furnish a vote necessary for an unjust sentence; 2° as often as cooperation is done from an efficacious conspiracy by which the damagers so efficaciously excite themselves to the damage that, if individuals did not concur, the damage would not happen.¹

III. Whoever is the principal cause of damage is bound to restore in solidum absolutely; but the other equal cooperators, or secondary causes, are bound only conditionally. The reason is that the principal agent, such as one mandating, a leader, etc., by the fact itself takes upon himself absolutely the whole burden of repairing the damage, since he himself inflicts it primarily, and does not use others except as instruments for damaging the neighbor. But who must be called the principal cause will be said below.

But as to secondary causes, S. Alph.² rightly warns that in practice it is rarely expedient to warn the uneducated or oblige them to repair the whole damage, although they are certainly bound in solidum; because, he says, "with difficulty do these persuade themselves that they are bound to restore the part taken by their companions. Indeed, it can be sufficiently presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken by them, since otherwise it is greatly to be feared that they restore nothing if they are obligated to the whole."

"Hence it is," the Holy Doctor continues,³ "that the confessor should exhort any one of those men (especially if he is of a conscience little meticulous) that he restore what he owes, without explaining the quantity, but remitting it to the dictate of his conscience."

779. Questions. - Query 1° Are you bound IN SOLIDUM in doubt whether you influenced the whole damage?

Resp. More probably negatively with the common opinion, because a certain burden cannot be imposed for an uncertain obligation.⁴

Query 2° Are you bound IN SOLIDUM in doubt whether the others restored their part according to proportion?

Resp. The opinion denying this is by no means approved by S. Alph.⁵ In negative doubt I think that others must be presumed to have satisfied their debt.

Query 3° Is there given an obligation of restoring IN SOLIDUM where cooperation indeed influences the whole damage of an indivisible thing, but is not of itself sufficient, nor necessary, nor proceeds from strict conspiracy; for example if four carry away a beam which even three would have carried away?

Resp. Probably negatively, because, since the whole reason of obligation is influence upon the damage, that ought not to be greater than the influence itself. From elsewhere, if someone by his work concurs only to part of the damage, for example of the devastation of a garden, but concurs with others to the whole damage so far as the remaining part of the garden had already been devastated by others, and he destroys what he found left whole by them, this man certainly is not bound to repair except the part of the damage of which he was the author. Therefore, by parity, one who concurs partially toward indivisible damage is bound only partially to the reparation of the damage, because he placed a partial cause.¹ - Lugo.²

780. • Query 4° Are you bound IN SOLIDUM if your action was indeed sufficient for inflicting the whole damage, but in no way necessary, nor proceeded from conspiracy; for example if you set fire to another's house at the same time with several others?

Resp. It is controverted. Not a few affirm probably, indeed also more probably, because where your action was sufficient for the damaging effect, in reality the whole damage must be ascribed morally to you and to the individual others. Roncaglia, Sanchez, Salmant., etc. - But others deny probably, because, although the damaging action was sufficient for the whole damage, nevertheless it did not have anything but a partial influence upon it, since it was neither necessary nor common with others from conspiracy. Therefore it is not the moral cause of the whole damage. Nor does it matter that it is a question of an indivisible thing, because the cooperation is not extended to the whole damage. Yet understand this whenever without your concurrence the damage would nevertheless have happened; otherwise even your action would have to be called necessary for it. - Sporer, Navar., etc. - S. Alph.³ has each opinion as probable.

781. Resolutions. - 1° If one of the cooperators has repaired the whole damage, the others are freed from every debt toward the creditor; but he who restored the whole has recourse against the other damagers equally obligated, or such that each is bound according to his proportion, as reason plainly demonstrates.

2° If to a thief who, on account of efficacious motives, is already altogether determined to steal, you suggest a new motive which adds stimulus to him, you are not bound, when the other cooperators fail, to repair the whole damage, because your motive did not influence the substance of the damage.

3° Indeed probably, on account of the same reason, you ought to repay nothing from justice, if you only induce another to inflict damage somewhat more quickly or more readily.

The quantity of restitution must be measured from the quantity of the thing accepted, or from the quantity of the damage inflicted, or of the influence upon the injury of the neighbor. Since special difficulties occur concerning solidarity alone, we shall treat specially of that alone.

Solidarity, or the obligation of restoring in solidum, is the burden incumbent on individual cooperators of repairing the whole damage inflicted. A twofold kind is distinguished: namely absolute, which has place when someone is held to repairing the whole damage; and conditioned, when individual cooperators are held to restore for other cooperators who fail.

I say 1st. Anyone from the cooperators efficaciously concurring to damage, so that this whole damage can morally be ascribed to him, is held to restitution in solidum, that is, in its entirety, whether absolutely or at least conditionally. The reason is that anyone is the efficacious and unjust cause of the whole damage, and therefore must repair the whole. - And we say that the whole damage certainly can be ascribed to some cooperator in a twofold case, namely: 1st, as often as his cooperation is necessary, although not sufficient for inflicting the whole damage; 2nd, as often as cooperation is made from an efficacious conspiracy, by which the damagers so efficaciously excite themselves to the damage that, if individuals did not concur, the damage would not occur. Cf. St. Alphonsus, n. 579. - Vogler, n. 342.

I say 2nd. Whoever is the principal cause of the damage is held to restore in solidum absolutely; but the rest of the equal cooperators or secondary causes are held only conditionally. The reason is that the principal agent, as the one mandating, the leader, etc., by that fact absolutely takes upon himself the whole burden of repairing the damage, since he primarily inflicts it and does not use others except as instruments for damaging the neighbor.

Question 1. Whether there is an obligation of restoring in solidum, where cooperation indeed exerted influence on the whole damage of an indivisible thing, but of itself is not sufficient nor necessary, nor proceeds from strict conspiracy; for example, if four carry away a beam which three also would have carried away?

Resp. Negatively, because, since the whole reason of the obligation is influence on the damage, that obligation ought not to be greater than the influence itself. Moreover, one who concurred to a part of divisible damage, although with others he concurred to the whole damage insofar as the part contributes to completing the whole, certainly would not be held to restoring the whole; therefore, by parity, he who concurs partially to indivisible damage is held only partially to the reparation of the damage, because he placed a partial cause. Cf. St. Alphonsus, n. 579. - Lugo, disp. 19, n. 83. - Vogler, n. 343.

Question 2. Whether you are held in solidum if your action was indeed sufficient for inflicting the whole damage, but in no way necessary, nor did it proceed from conspiracy; for example, if you applied fire to another's house together with several others?

Resp. Negatively, at least probably, and the reason is that, although the damaging action was sufficient for the whole damage, nevertheless it had only a partial influence upon it, since it was neither necessary nor common with others from conspiracy. Therefore it is not the moral cause of the whole damage. Nor does it matter that it is a question of an indivisible thing, because the cooperation is not extended to the whole damage. Nevertheless understand this as often as without your concurrence the damage nevertheless would have occurred; otherwise even your action would have to be called necessary to it. - Cf. St. Alphonsus, n. 679; and Hom. Ap., n. 55.

Here one must altogether advert to the warning of St. Alphonsus, namely: in practice it is rarely expedient that the obligation of repairing the whole damage be manifested to the unlearned, although they are certainly held in solidum, provided however that they have damaged only as secondary causes. The reason is that an obligation of this sort cannot easily be persuaded to the unlearned. - Cf. St. Alphonsus, Hom. Ap., n. 54.

I ASSERT first, that restitution of Arithmetic equality is owed from Commutative Justice. So D. Thom. art. 3. and commonly. It is clear from the nature of Commutative Justice, as Tannerus notes disput. 4. quaest. 6. dubio 14.

BUT this equality must be computed not only according to the present goods that have been taken away, but also according to those which existed in potentiality after the expenses were reckoned, such as the trampling of the seeds of a field; or the taking away of a merchant's horse, by which he earned his living at the Fairs. See Valentia quaest. 6. puncto 6. Caietanum V. Restitutio. Navar. manual. cap. 17. num. 27.

BUT restitution can further be imposed from Vindictive Justice. So D. Thom. art. 3. and commonly all others with D. Bonavent. in the places to be cited.

THUS in Exodi 22. it was enacted that he who had stolen an Ox or a Sheep, and killed or sold it, should restore five Oxen for one Ox and four Sheep for one sheep. To this David alluded, Reg. 2. cap. 12: He shall restore the sheep fourfold, and Zachaeus, Lucae 19: If I have defrauded anyone of anything, I restore fourfold, as the holy Doctor observes on this passage, noting that this was not necessary for Commutative Justice, as is clear; nor for Vindictive Justice, which is not to be fulfilled except after the sentence of the Judge, as the cited Doctors commonly teach, Tract. de Legibus, disput. 5. quaest. 7. et seq. Hence he concludes that it was rather an act of liberality.

AND in Diaetastit. 2. cap. 4. he admonishes that restitution is like a Phlebotomy, that is, an evacuation of blood, which is necessary for certain infirmities, because: Sin is not remitted unless what was taken away is restored, from D. Augustino epist. 54. and the example of Zachaeus adduced there. This Phlebotomy Zachaeus was performing when he said: If I have defrauded anyone of anything, I restore fourfold; but would that Usurers would repay only the principal in like manner.

MOREOVER Caspensis notes, disp. 1. sect. 11. that the quantity of the thing intended in restitution must be considered in the better state in which the owner would have used it; so that if you have wheat in the month of August and you withhold it until the month of May, at which time its owner would have sold it more dearly, you are bound to restore the greater price, because the thing always remained under the right of its owner, who would have used that wheat at a more profitable time. But if it is uncertain at what time he would have sold it (says Caspensis), the middle price must be restored. Likewise, if the thing unjustly suffers damage in the hands of the one retaining it, the loss will have to be restored, which was not receivable in the hands of the owner.