Juridical Fault; Likewise on a Contract or Law Intervening

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

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

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

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

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

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

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

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

Whether there is an obligation of restitution from contract? Restitution is the restoration of damage given. But damage is said from taking away. Wherefore restitution properly supposes something taken away and as it were diminished from our things. Hence the things which someone owes to another precisely by force of contract or quasi-contract, e.g., by force of sale, purchase, mutuum, commodatum, etc., he does not restore, but renders, as though giving back. Nevertheless, as restitution truly belongs by nature and by law, so also it can belong by pact. And thus, if a borrower by evil deceit broke vessels lent to him, by natural right he is held to restitution.

If by civil fault he did not guard them and lost them, by civil right he is held to restitution. If he took a fortuitous event upon himself, he is also held to restitution, not from natural or civil right, but from pact. Likewise someone is held to restitution and compensation of damages from pact when it is not fulfilled, or if he is constituted in delay. And the same obligation of restitution arises from quasi-contract: "as Princes, who are bound to preserve justice in the land, if robbers increase through their defect, are held to restitution; because the revenues which they have are as it were stipends instituted for this, that they preserve justice in the land." St. Thomas, 2. 2, q. 62, a. 7. - C. I. 1218 ff.; C. A. 919, 1295; Inst. l. 3, t. 14.

Whether theological fault is required to induce the obligation of restitution for damage inflicted on another's thing, which was detained from some contract, e.g., of commodatum, deposit, lease, etc.; or whether juridical fault suffices? - There is a twofold probable opinion in this matter, one affirming, the other denying, concerning which we have already spoken in n. 1072.

Whether theological fault is also required for the obligation of restitution because of damage inflicted on another in fulfilling an office, or in observing a quasi-contract, e.g., if a physician from inculpable error furnished a harmful remedy to the sick person? - Resp. Affirmatively, more probably. The reason is 1. because the obligation of restoring because 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 agreement of the parties. 2. Because such an obligation would be harmful to the public good; for from it upright and God-fearing men would be kept away from undertaking the affairs of others, as well as from public offices. - Except nevertheless: 1. If someone undertaking some office expressly promises that he will employ such diligence; for thus he is obliged from special pact, especially if for this reason he accepts a greater stipend. 2. When he tacitly promised such diligence, e.g., by boasting that he is better and more learned than others, and thus preventing the other from seeking one more learned or more diligent; for thus he deceived the other, and consequently is held to the damage following from his ignorance or negligence, even if this in itself was not theologically gravely culpable. Cf. 1072; Ithur., Cas. 27, n. 20; Gousset 923; C. A. 1299, 1300, 1306; Inst. l. 4, t. 3, §§ 6, 7.

What is owed by reason of delay? If the obligation is in a certain sum of money to be handed over, which was not handed over at its own time, legal interest must be paid from the day on which the debtor is in delay, without the creditor being bound to prove the damages which he suffered, C. I. 1231; C. A. 1333. Indeed, from the day of judicial petition, or of special agreement entered into after the time of restitution has elapsed, interest of interest is owed. C. I. 1232. Cf. here 1105, 1106; C. A. 1335. If the matter of the contract is not money, but another thing, and the debtor is in delay in handing over the thing, the thing remains at his danger, although before the delay it was at the danger of the creditor. C. I. 1219. If compensation of damages has been determined by agreement, one must stand by it, C. I. 1230. Otherwise, with deceit not intervening, only damages are to be compensated which were foreseen, or could have been foreseen at the time of the contract, C. I. 1228. But with deceit intervening, all damages must be compensated which directly and immediately come from the unperformed fulfillment of the obligation, C. I. 1229. - C. A. 912, 913, 1324, 1333; L. 704.

Whether there is an obligation of restitution from the sentence of a judge? There is no doubt that an obligation of restoring is present from the juridical sentence of a judge. This is established 1. from the common opinion of theologians; 2. because civil power also, when it legitimately commands, has the force of obliging in conscience. But the civil magistrate commands legitimately, whether according to law he imposes a fine to be paid, or also according to the same law settles lawsuits regarding property. Therefore. But that these laws are just is clear again 1. from the common authority of theologians; 2. from the fact that among all civil nations these laws have flourished and do flourish; 3. because these laws are especially necessary for the right rule of civil society and its common good, whence civil authority can in no way lack the moral faculty of making such laws. L. 631, 641, 711, 927; St. Thomas, 2. 2, q. 62, a. 3; q. 66, a. 5, ad 1.

Whether there is an obligation of restitution from law? There is likewise no doubt, as is established from what has just been said, that an obligation of restoring is present immediately from the law itself, even with no juridical sentence of a judge

Whether in the remaining laws, while juridical fault stands, someone is bound to restitution before the sentence of the judge, and after it can compensate himself? - St. Alphonsus, 554, speaks of juridical fault, whether it alone, without theological fault, suffices for imposing restitution, and says: "Those laws which in certain cases altogether command restitution indeed oblige, even if sin is absent, but not before the sentence of the judge." But one condemned by a judge "to repair damage because of juridical fault can by no means compensate himself for such reparation, because the sentence of the judge for the internal forum also stands by the one suffering damage." Ithur., Cas. 27, n. 4.

Civil fault is justly restrained, because it is a matter of avoiding common danger of damage. - Therefore, although an owner is not bound to repair damages inflicted on a neighbor by his animals without his theological fault before the sentence of the judge, nevertheless he is bound after the sentence, nor can he thereafter secretly compensate himself. - Hence also "although precisely for life, member, killing, there is no obligation of restoring, nevertheless through the sentence of the judge the one injuring is compelled to satisfy for the injury." L. 631. - If in order to avoid damage, damage is caused to another, compensation is owed to him by him in whose favor that damage was inflicted. Thus according to C. L. 2396 seq.; C. A. 1320 ff.; C. I. 1154, 1155; C. H. 1905 ff.; C. L. 2394, 2395; Inst. l. 4, t. 3, 5.

"Whether he who by frauds or lies, or false witnesses, prevents goods from being applied to the treasury which because of a crime, e.g., of a toll not paid or another, would be assigned to the treasury, is bound to restitution? - Resp. With Lessius... and others very commonly, that after sentence he is certainly bound; but otherwise before sentence, because before sentence the treasury has acquired no right to the penalty, which is not owed except after sentence; or because at least this right of the treasury to penalties is commonly accepted thus." L. 583. But cf. here 1367.

intervening. Consequently, civil law produces such an effect of restitution to be made in only a twofold case:

1. When by the fact itself it transfers ownership, as are the laws of prescription.

2. When again by the fact itself it impedes transfer of ownership, as are laws invalidating contracts by the fact itself, and laws decreeing the legal price of merchandise. Wherefore in no way is someone bound to a fine or to restitution before the condemnatory sentence of the judge, or at least a declaratory one, if the law is penal, or merely prohibitive but not invalidating, or even invalidating, but only by right, not by the fact itself.

1. Crepinius, a son under paternal power, by feasts, drinkings, games, held in a tavern with many other unruly youths, contracts many debts with Medardus the tavern-keeper. Grifinus gives surety for Crepinius. Hence, when Medardus could obtain payment of the debts neither from Crepinius nor from his father, he demands it from Grifinus.

Q. 1. Does an obligation of restitution arise from contract? — 2. What as to the Case?

R. To the 1st. Affirmatively. For this is deduced from the very notion of restitution. For through a contract another already has either a right in a thing or a right to a thing.

And if through restitution that which is his own must be rendered to another, it is plain that restitution must be made not only when another’s thing is held against the other’s will, as in theft and rapine, but also when it is held through his will, as in a loan for consumption or a deposit, or another contract. S. Th. 2.2. q. 62. a. 1.

To the 2nd. Since the debts contracted by Crepinius, a son under paternal power, did not yield to his advantage and utility, but to his damage and grave harm, Crepinius can invoke the sentence of a judge and not pay the debts. Let Medardus impute it to himself and to his own fraud that he contracted with a son under paternal power, supplying to him the occasion of so many vices. I. M. 667, 953. Nor truly is the father of Crepinius held to paying the debts. For he furnished no consent in contracting those debts; and so he is held neither by positive law nor by natural law. Nor is the father of Crepinius held to paying those debts if he himself administers the son’s goods. For the son himself cannot reclaim those goods except after majority, and the son then will be able to invoke the sentence of the judge. G. 586, 287, 771. — Grifinus is nevertheless held to paying the aforesaid debts by reason of the suretyship made. For although it was made for a minor, nevertheless it is valid both by natural law and by positive law. I. M. 1266.

2. Benignus, a bishop, administrator of a pious legacy of Masses, prudently doubting nothing concerning restitution, gave to Fidelis, a most faithful parish priest, as a loan the sum of 10,000 lire. After a week Fidelis suddenly dies. The sum lent is not found, nor any document of it; whence the heirs do not acknowledge it. Nor truly can Benignus bring forward any document. For on the same night on which Fidelis was dying, robbers carried away with them from the episcopal palace the chest with the money and papers of the whole episcopal administration. Did Benignus commit theft, and is he held to restitution?

R. To the 1st. Benignus did not commit theft. For theft is the hidden taking away of another’s thing, the owner being reasonably unwilling. But there was no hidden offering [printed: oblatio] of another’s thing, nor could the owner in that loan be reasonably unwilling, since no danger in it was prudently foreseen, and since Benignus certainly had to invest that money in some way, so that from the fruits Masses would be celebrated.

To the 2nd. Certainly all theological fault was lacking in Benignus. Wherefore from this head he would certainly be held to nothing. By reason of administration and quasi-contract he would indeed be held from juridical fault to restitution or compensation. But before the sentence of a judge, and in the forum of conscience, the matter is at least controverted among the doctors, and so the obligation is doubtful, and practically none. Besides, juridical fault is not established in the Case; for the loss of that sum is in truth owed to no negligence, but to a fortuitous event. Wherefore Benignus is held to nothing. The thing perishes to its owner. Nevertheless, since there is question of the celebration of Masses, and compensation as to them can easily be made through the Supreme Pontiff, supplying from the treasury of the Church, it seems that it should indeed be sought from the Supreme Pontiff. — I. M. 1072, 1077, 1118, 1389, 1393.

3. Durandus by a defamatory pamphlet defamed Guibertus the advocate. Recourse having been made to the judge, Guibertus obtained a sentence fully favoring him, and condemning Durandus to pay 50,000 lire to the same Guibertus as compensation for injured reputation and for repairing the damage inflicted. Durandus refuses to pay this sum, saying that the sentence is unjust and does not obligate him in conscience, because reputation is not compensated by money; because the damage inflicted on Guibertus, a middling lawyer, cannot be estimated as so much; because finally he himself took nothing away from Guibertus.

Q. What as to the Case?

R. Durandus is held to pay the whole sum of 50,000 lire to Guibertus by force of the just sentence of the judge. Although it is controverted whether, by the rigor of strict commutative justice, compensation is given between goods of a diverse order, e.g., between reputation and money, because between diverse goods there cannot be an equalizing of thing to thing; nevertheless there is no doubt that the aforesaid recompense can be given, by reason at least of natural equity, and by reason of a penalty inflicted by the legitimate authority of the judge. Wherefore from this head there is no doubt that the sentence of the judge was altogether just and obligating in conscience. I. M. 1324. “It must be said,” says S. Th. 2.2. q. 62. a. 2 ad 1, “that in those things in which an equivalent cannot be recompensed, it suffices that there be recompensed there what is possible.... And therefore when that which has been taken away is not restorable by something equal, recompense such as is possible must be made; as when someone has taken away a limb from someone, he ought to recompense him either in money, or in some honor, the condition of both persons being considered, according to the judgment of a good man.” And in the same place, ad 2, “It must be said,” says the Holy Doctor, “that someone can take away reputation from another in three ways. In one way by speaking truth and justly, as when someone reveals someone’s crime, with due order being observed; and then he is not held to restitution of reputation. In another way by speaking falsely and unjustly; and then he is held to restore reputation by confessing that he spoke falsely. In a third way by speaking truth, but unjustly, as when someone reveals the crime of another against due order; and then he is held to restitution of reputation as much as he can, nevertheless without a lie, as by saying that he spoke badly, or that he unjustly defamed him; or if he cannot restore reputation, he ought otherwise to recompense him.” Wherefore again the sentence of the judge from this head must be held as altogether just and obligating.

Nor truly is Durandus’s other reason valid, namely that the reputation of Guibertus cannot be estimated as so much. For first, judgment in this matter certainly does not pertain to Durandus, but to the judge. Besides, although the aforesaid reputation of Guibertus perhaps is not to be estimated as so much in itself, nevertheless after the sentence of the judge Durandus is held to recompense and pay so much. For,

“when someone unjustly accepts another’s thing, two things are to be considered there; one of which is the inequality on the part of the thing, which sometimes is without injustice, as is plain in loans for consumption; but the other is the fault of injustice, which can be present even with equality of the thing, as when someone intends to inflict violence, but does not prevail. Therefore as to the first, a remedy is applied through restitution, insofar as equality is repaired through it; for which it suffices that he restore as much as he had of another’s. But as to the fault, a remedy is applied through a penalty, the infliction of which pertains to the judge; and therefore, before he is condemned by a judge, he is not held to restore more than he accepted; but after he has been condemned, he is held to pay the penalty.” S. Th. 2.2. q. 62. a. 3. Therefore the judge, by condemning, can justly command that something more be paid in place of amends or penalty, which nevertheless was not owed before someone was condemned. S. Th. l. c. ad 3. Therefore the sentence of the judge in the Case is just also from this other head, and obligating in conscience, although it is true that in itself the reputation of a middling advocate is not worth so much.

Finally, that which Durandus asserts in the last place is also false, namely that he himself took nothing away. He certainly took away reputation; and, reputation having been taken away, he inflicted damage, and grave damage, on Guibertus. But whoever damages someone takes away from him that in which he damages him; and damage unjustly inflicted must be compensated from strict justice.

4. Ioannes in France legitimately contracted marriage in the face of the Church with Ioanna, from whom he had one only son, to whom by testament he left his whole rich inheritance. After the death of Ioannes it is learned that his marriage with Ioanna had been null, on account of the fourth degree of consanguinity, which nevertheless had always previously been unknown by both spouses. Hence the blood-relatives of Ioannes, in order that they themselves may receive the inheritance, strive altogether to exclude from it the only son of Ioannes, as illegitimate and born from an invalid contract of marriage.

Q. What as to the Case?

R. Since the marriage of Ioannes and Ioanna, although invalid, nevertheless was contracted in good faith and indeed by both spouses, both by Canon Law and by Civil Law the offspring is held as legitimate, and so has every right to the paternal inheritance, nor can he be driven away from it. And this is valid even if before the death of Ioannes himself the marriage had been declared null. But the offspring succeeds in the Case as altogether legitimate, by hereditary right, into the paternal goods, indeed even into the goods of the collateral relatives of the father or mother. C. Cum inter 2. Qui filii sint legitimi; French Civil Code art. 201, 202; Schmalzgr. l. 4. tit. 17. n. 11 seqq.; Toullier Il Dir. Civ. Franc. l. 1. tit. 5. n. 666.

I. On Delict. ¹ 1. Civil delict must be carefully distinguished from penal or criminal delict. Penal delict is defined by canon 2195, § 1: "An external and morally imputable violation of a law, to which a sanction has been added." The sanction can be defined either perfectly, as if for theft a penalty of six months' prison is established, or less perfectly, as if, for the various circumstances of the case, the penalty is permitted to be determined by the judge between a maximum and minimum limit; and it can also, at least in the canonical forum, be fully committed to the judgment of the judge, as when it is said: "let him be punished with suitable penalties." - Concerning penal delict, this holds: no penalty without law. According to this, the Code, c. 6, 5°, declared abrogated all penalties of which no mention is had in the Code.

2. But civil delict is every illicit and damaging fact committed with the intention of harming.

An illicit fact is required, because "no one seems to act by deceit who uses his own right" [Law 55, Dig. De regulis iuris (L, 17)].

A fact can be damaging because of emergent damage, or a positive detriment by which someone begins to have less than he had; and because of ceasing gain, by which someone has less than he would have had without the illicit fact.

Damage can be of the material order, whether it affects a thing or the body, so that it is estimable by a price, and it can be of a superior order, in reputation, in the soul, in affections, etc. It is certain that every economic damage is at least to be compensated with money. Sometimes also damage of a superior order can be repaired in its own order: disease by recovered health, reputation by an efficacious retraction. But does moral damage, as such, give place to pecuniary reparation? The matter is not so settled among jurists. Yet tribunals are accustomed also to establish that certain moneys are to be paid for damages of the body itself as such, or for damages of the moral order.

The intention of harming supposes a voluntary fact commanded by a deceitful or malicious will.

But reparation of damages on account of delict can be sought either from a contentious tribunal, and then as the principal object of the suit, or also from a criminal tribunal, as an accessory of the criminal process. By the name civil party in a criminal cause is called the private person who seeks such reparation of damages.

II. On Quasi-Delict. Quasi-delict excludes the intention of harming, but arises from necessary diligence (positive or negative) having been omitted, which, had it been applied, the damage would not have been inflicted.

Diligence is imposed either immediately concerning the very things to be preserved, or concerning animate causes which can beget damage: animals, children, persons whose labor had been hired.

The quasi-delict itself supposes a fact voluntary in this sense, that by greater caution or attention the damage could have been avoided. But defect of advertence does not take away quasi-delict.

¹ On the whole argument of this chapter, cf. Pacifici Mazzoni IV, p. 218 ff., 344 ff.; and Colin et Capitant, II, 360-403.

III. On Fault to Be Furnished. 1. Fault is distinguished as theological and juridical. Theological fault is the sin itself by which God is offended; juridical fault consists in the omission of diligence due according to the laws. This fault can be broad or gross: omission of common diligence, i.e. the diligence customarily applied by all; slight: omission of the diligence which an alert man is accustomed to apply, which can be divided into slight fault in the abstract and in the concrete, according as abstraction is made from the person who is blamed or not; very slight: omission of exquisite diligence.

A distinction of grades of this kind is found in every law. Thus, in England, Slater, A manual, I, 409, alleging Chitty, The Laws of Contracts, distinguishes ordinary neglect, gross neglect, slight neglect.

From delict or quasi-delict, the furnishing of very slight fault is owed. From contract the general rule is that slight fault in the abstract is furnished. This obligation is increased or diminished according as the contract is in favor of the debtor or of the creditor, or according as the contract itself has been imposed by necessity: as in a "miserable" deposit, i.e. one which had to be made from an unforeseen event.

In the Canadian Code Q., a contract never imposes more than the diligence of a good father of a family.

A fortuitous case is not furnished of itself, unless a delict has intervened, or the debtor has been in delay (German Code, 287). The German Code treats this argument more fully than the rest, arts. 276-292 and 823-853. Cf. also Swiss Code of Obligations, arts. 41-61.

In the canonical forum, a fortuitous case is not furnished; however, the imputation of omitted diligence is committed to the prudent judgment of the judge (c. 2203, § 2), almost as in art. 43 of the Swiss Code of Obligations. At the same time, however, even in ecclesiastical matter, just civil laws concerning contracts are to be observed. Therefore an ecclesiastical judge will be able and obliged to urge those laws.

In the forum of conscience this perpetual rule can be proposed: before the sentence of the judge, a grave obligation of furnishing fault requires, besides grave matter, grave theological fault, unless the furnishing of a fortuitous case or of slight fault has been formally promised. But the gravity itself of fault in a contract depends on the diligence which, expressly or tacitly, greater or lesser according to the various contract, was promised, and on its voluntary omission in more or less notable matter. But the diligence which is imposed by civil law is not yet judged to have been promised by the parties. The circumstances are to be consulted. And in general, if, conscious of danger, in dangerous actions you omit that diligence of precaution which men of the same condition are commonly accustomed to have, you sin gravely (unless perhaps you had already determined to receive the damages upon yourself) and are held for the damages which follow. In doubt concerning fault, you are not held.

After the sentence of the judge, the money which has been imposed on account of mere juridical fault is owed in conscience, provided this fault at least has truly been committed.

Therefore, if in fact the diligence was applied for whose omission someone has been condemned to repair damages, that sentence, inasmuch as it is founded in an error of fact, begets no obligation of conscience, so that after its coerced execution there is place for occult compensation.

I. Civil delict is an illicit and damaging fact committed with the intention of harming; quasi-delict is the same fact, without the intention of harming, committed with juridical fault.

II. Fault to be furnished. According as exquisite diligence, or that of an alert man, or common diligence is required, the fault to be furnished is called very slight, slight, gross.

Damages of omitted or delayed execution, or of another's damaged thing, in the internal forum, always, before the sentence of the judge, are estimated according to theological fault: this must be grave in order that a grave obligation, even in grave matter, arise; but in the external civil forum, they are estimated according to juridical fault, or the omission of diligence which positive law imposes.

From delict or quasi-delict, very slight fault is juridically to be furnished. A fortuitous case is generally not furnished.

In the canonical forum, imputation is made according to the prudent estimation of the judge, unless the civil law itself must be applied.

1° : In commodato, the receiver is held for damage arising from light and lightest fault, but not from a fortuitous event. In precario, he is held from gross fault only. But in contracts which are for the utility of giver and receiver together, as in hiring, he is held from light fault.

So it is, not indeed from the nature of the thing, because, standing in the law of nature, no one from strict justice is bound to employ greater diligence in preserving the things of another than the owner himself would employ, but from the disposition of law both canonical and civil in many places.

And these laws seem to bind in the forum of conscience before the sentence of the judge ; because that obligation of restoring in these contracts seems not so much a punishment as a condition attached to them by the statutes of the laws. Nor should they be said to be founded upon a false presumption of fraud, but rather upon natural equity and honesty.

You will ask whether he who sends back by a messenger a thing hired, or lent for use, or deposited, is held to restitution or payment if the thing perish through the fault of the messenger.

I answer with Silvius, with a distinction. If the messenger was commonly held to be trustworthy, he is not bound, because he is not at fault. If the messenger was not commonly held to be trustworthy, he is bound, because he is at fault.

Nor is it similar concerning him who would send back a thing loaned mutuum ; because the thing loaned mutuum belongs to the borrower so long as it has not reached the lender³⁵⁷ . Whence, although it perish without the fault of the borrower, it perishes to himself as owner. But a thing lent for use³⁵⁸ , hired, or deposited, belongs to the lender for use, the hirer, or the depositor, and not to the bailee for use, the lessee, or the depositary. Whence, if it perish without his fault, he is held to nothing, and the thing perishes to its owner. ³⁵⁷ Hoc intelligitur de rebus usu consumptibilibus. Cfr. Cod. civ. Gall., art. 1893. ³⁵⁸ Ibid., art. 1876.

I say 2° : Those who act from quasi-contract, or from office, such as tutors, judges, advocates, physicians, surgeons, etc., do not seem to be held for damage arising from any juridical fault whatever, unless it be at the same time theological : because either there are no laws which clearly decree this concerning those offices, as we said holds for true and open contracts; or, if there are, they do not seem received in practice with respect to the forum of conscience; for this the common sense of men persuades. For there is no one, or scarcely anyone, who thinks that a physician, surgeon, advocate, tutor, and their like, are held in conscience and before God to restitution, if they have not sinned in conscience and before God. And indeed, if matters stood otherwise, who, though most vigilant and most expert, would wish to discharge these offices, since it often happens that some light or lightest juridical fault creeps in upon the most vigilant and most expert through inadvertence or natural forgetfulness, or some other case, on account of which they would be held to restore, although they were before God without fault?

Moreover, I confess that those who render service under office for pay are bound by the strict law of nature to employ greater diligence than those who serve gratuitously out of charity, and if they voluntarily omit it, they sin before God and are held to restitution.

VII. QUESTION IV. What kind of fault of injustice brings in the debt of restitution? ANSWER. One fault of injustice is theological, another juridical. A theological fault is a sin either mortal or venial. A juridical, or civil, fault is the omission of the due diligence by which a man is bound to know, to beware, to provide, or to do something, whence a loss follows. Whether this fault contain malice or not is not attended to. It is threefold: grave, slight, and very slight. Grave is the omission of that diligence which prudent men of the same profession are commonly wont to use. This fault is called also most grave, as is manifest fraud — say, when the keeper of another's thing sleeps, or feigns to sleep; and graver, which is presumed fraud, as when a man knowing and able to hinder does not hinder. Slight fault is the omission of that diligence which the more prudent are wont to use. Very slight fault is the omission of that diligence which the most careful men use. This juridical fault is sometimes conjoined with, sometimes separated from, the theological fault.

IX. QUESTION V. Does theological fault alone bring in the debt of restitution? ANSWER. Outside an office or a contract, theological fault alone, not interior but exterior, brings in the debt of restitution, because theological fault alone injures another's right. And so if the juridical fault be separated from the theological fault, it does not bring in the debt of restitution, unless a peculiar contract intervene. From a slight theological fault a slight, from a grave a grave obligation of restitution arises; sometimes nevertheless a slight exterior fault conjoined with an interior will of harming can bring in a grave obligation of restoring. An advocate uses all the diligence to which by force of his office he is held, and which diligent professors of this art are wont to use, but was unwilling to use greater diligence, out of hatred and inward envy against his client, that loss might thence follow to him: although this exterior omission be slight, yet conjoined with an inward depraved affection of harming, it can bring forth a debt of restitution. Read Vol. VII, Book I, dissertation 2, chapter 5, no. 8.

X. QUESTION VI. Whether the professors of any art are bound to restitution for a slight or a very slight fault? ANSWER. It has already been said that no one outside an office or a contract is held to restitution for a slight or very slight juridical fault, when the theological fault is removed. Now it is asked whether craftsmen, physicians, advocates, and such as these, who exercise their arts for an agreed price, are bound to restore on account of a slight or a very slight fault? The common opinion denies it. Since the aforesaid are bound neither from the thing received nor from unjust acceptance: because unjust acceptance is not found without a grave fault joined to a theological fault; nor finally from contract, because none of the said persons obliges himself to exercise his art with greater diligence than prudent men of the same professions are wont to use. From a grave juridical fault alone, therefore, conjoined with a theological fault, does the debt of restitution arise in them. If nevertheless the aforesaid should promise greater diligence than the rest of the professors are wont to use, then they would be held more or less, according to the diversity of circumstances, to restitution for a slight or a very slight fault.

XI. QUESTION VII. What juridical fault is required in a contract, that it may bring in the debt of restitution? ANSWER. The first opinion teaches that one is held to restitution for a slight or a very slight fault, if the contract turn to your advantage alone, as in a loan for use, and the thing perish or be made worse. And this is the disposition of law, Digest, book 13, title 6, law 18: In things lent for use such diligence is to be furnished as each most diligent father of a family uses toward his own affairs. This disposition is congruous with natural equity, namely that he who uses another's thing gratis should use the highest diligence in its custody. For unless you be most diligent in this contract, when will you ever be so? Common sense itself dictates that a borrower be bound to greater diligence than the rest. If therefore the rest are held for a grave fault … … here he will be bound for a slight or a very slight fault. An exception is precarium, in which he who receives is held only for fraud or for grave fault; since the lord can at any time demand back a thing granted on sufferance. If the contract be useful to both parties, as the contract of letting, of hiring, of pledge, each is subject to restitution for grave and slight fault, but not for very slight. If the contract turn to the advantage of the giver alone, as happens in a deposit, he who receives is held to restitution for grave fault and fraud only.