Negative co-operation (silence, not preventing)

On account of one’s office, or in virtue of a special contract, there is sometimes a special obligation to prevent injury being done to others, and if the obligation be not fulfilled, there is negative co-operation in the injury inflicted. Apart from such special office or contract we are bound in charity to prevent injury to others as far as we can, but not in justice. This negative co-operation may be committed by concealment of injustice which has been done, as when a servant conceals thefts committed against his master’s property which has been entrusted to his care. It may be committed by silence, as when a policeman accepts hush money to say nothing about a robbery. It may also be committed if one whose duty it is to protect another’s rights or property neglects that duty and allows them to be injured. On account of defence of an unjust act which has already been done there will not arise an obligation to make restitution, unless such defence was the cause why restitution was not made for the crime defended. All approbation and defence of wrongdoing is nevertheless sinful. One who culpably neglects to prevent his animals from doing harm to his neighbour is bound to make restitution.

Sometimes these negative co-operators are excused from performing their strict duty on account of the very serious inconvenience to which it would subject them, and which they are not presumed to have obliged themselves to undergo. In such cases they will be excused from making restitution for injuries which they did not prevent.

What of the silent one, the one not preventing, the one not revealing, or of negative cooperators? Negative cooperators are those who do not impede the damage of neighbor, when from pact or from office they are held to impede it. They are commonly called the silent one, the one not preventing, the one not revealing. The silent one is he who does not speak, does not cry out, does not forewarn the one to be damaged, while he is held to this from office or contract. One not preventing is said to be he who, while damage is being inflicted, does not resist, does not guard the thing, although he ought to furnish this from justice. One not revealing is called he who, after damage has been inflicted, does not denounce the damager to the injured owner, or to a superior, although from office and therefore from justice he ought to denounce him.

No one by reason of damage not impeded is held to restitution unless he is held from justice to impede it; for he who is not bound to impede damage from justice is obliged from charity alone, the violation of which does not oblige to restitution. All who are obliged from contract, or from office, to impede the damage of another, if they culpably neglect this, are held to restoring; for they ought from justice to impede damage. Therefore, if they omit it, they sin against justice, and consequently are obliged to repair damages. In order that one cooperating negatively be held to restitution, it is necessary that he could have impeded the damage without grave inconvenience; because neither a contract nor positive law is usually accustomed to oblige, at least for the most part, with a grave burden. Nor likewise is he held who does not prohibit, because he would attempt this in vain. Here belong those who hire out their work to others for impeding damage, such as guards of fields, forests, etc. Those also are held to compensation of damage who ought to be over others in some office, if those others cause damage in it, so long as they remain under their vigilance; those who choose and admit incapable or dishonest persons in the management of some business, for by that very fact they assume upon themselves the damages which those persons can inflict in exercising that office; those who inhabit buildings, if someone from their household under their custody, e.g., if a boy not yet having attained the use of reason, throws something into the public way with damage to passers-by; those who do not impede the damage of others from their own thing, e.g., from their animal running through another's field and doing pauperies, from their buildings collapsed by ruin, etc. For from commutative justice each one is obliged that damage not be inflicted on others through his things just as through his actions. Namely these are held from quasi-contract, from quasi-delict. C. I. 1151. seqq.; C. G. 1328. seqq.; C. A. 1309, 1320.; C. L. 2380, seq. 2394. seqq.; C. B. 831, 839, 841.; L. 573.; St. Thomas, 2. 2, q. 62, a. 7.; Cf. 683. "Pauperies is damage given without injury of the doer; for an animal, which lacks sense, cannot have done injury." L. Si quadrupes 1. Si quadrupes pauperiem fecisse dicatur Dig.

Whether a confessor is held to restitution if, from grave negligence or ignorance, he omitted to admonish a penitent concerning restitution to be made? Resp. More probably negatively. For although from office the confessor is held to instruct the penitent well, and therefore sins gravely if he omits this when it is necessary, nevertheless he is not held to this from an obligation toward a third party. Except if the silence of the confessor is equivalent to positive approval, e.g., if, having been questioned, he avoids an answer in such a way that the absence of obligation is suggested to the penitent. L. 578.

Whether a counselor is held to restitution if, through omission of a vote, he did not oppose an unjust sentence? Resp. Affirmatively, if he ought to cast a vote from office, because an office is to be fulfilled from justice, at least commonly speaking, and with a just cause excluded, and unless one sees that he will accomplish nothing by his vote. Resp. Negatively, if he has the right of voting from mere privilege, or from mere favor; or if he could cast a vote only from mere charity; for then he can omit the vote without injustice. Lugo d. 19, n. 61 seq.; L. 574.

Whether he is held to restitution who accepted money from a thief in order to be silent, if he ought not from office to cry out? Resp. More probably negatively, at least of itself. The reason is that he could be silent at the prayers of the thief without injustice, since he is not held from justice to cry out. Therefore, by parity, he can be silent on account of gifts promised or handed over without injustice. But it would have to be said otherwise if he accepted money in order to observe whether anyone was coming; because then he would cooperate positively in the theft. L. 571.

Whether guards not denouncing damagers are held to compensate all damages and also to pay the fine? Resp. to the 1st: Affirmatively, of itself, because they are appointed to impede damages. Except if there is question of things of lighter moment, for which, from custom and the presumed will of the owner, secret admonition suffices. Resp. to the 2nd: More probably negatively, on account of the contrary practice, with which common sense agrees. But the reason is that, unless something else was expressly agreed, these men hire out their work that the owners not be affected by damage, not that they become richer. The same is to be said of a judge not exacting a punitive fine. For the judge is held to this by reason of vindicative justice, not to enriching another or the treasury, which is altogether accidental. Nevertheless, if a denunciation of the damager has been made before the judge, he is held to punishing and to procuring reparation of the damage. L. H. A. tr. 12, n. 73. Cf. here 1394.

109. Notions. Negative cooperators are those who do not impede damage to the neighbor, although they are held to this from justice. Three modes of this cooperation are assigned, which indeed are materially, but not formally, diverse, namely "mute, not hindering, not manifesting."

a) He is called mute who does not speak before the damaging, and does not forewarn the person to be damaged, when he is held to this from office or contract; e.g., a guard who, when a thief is coming, does not shout and does not warn the owner.⁶⁷

b) He is not hindering who, while damage is being inflicted, does not oppose it, although he is held to this from justice; e.g., a forest guard who does not prevent wood from being cut unjustly.

c) He is called not manifesting who, after damage has been inflicted, does not denounce the damager either to the injured owner or to a superior, although from office he is held to this; e.g., the same forest guard, who indeed knows well the thieves of the wood, but does not denounce them to the public authority.

Principle. Those who from commutative justice are held to impede damage, and do not impede it when they can without grave inconvenience, are held to repair the damage inflicted.⁶⁸

The reason is that in this culpable omission all the conditions of unjust damaging are had; for it is truly, efficaciously, and formally unjust. But it is said: "who from commutative justice are held to impede damage"; for if there is only an obligation of charity, obedience, or another virtue, there is indeed sin, but no obligation of reparation arises. Now those ought to impede damage from commutative justice who have obliged themselves to this by some explicit or implicit contract. An implicit contract is had in the free undertaking of any duty or office. Then it is said: "when they can without grave inconvenience"; for no one is judged to oblige himself to preventing the damage of another with great inconvenience of his own, unless this is contained explicitly in the contract.

⁶⁷ Billuart, l. c. § 7, explains the three negative modes otherwise, saying: "The mute omits verbal labor toward the damager; the one not hindering, bodily labor toward the same; the one not manifesting, verbal labor toward magistrates or toward owners damaged or to be damaged."

⁶⁸ Cf. St. Thomas, S. theol. 2, 2, q. 62, a. 7; IV dist. 15, q. 1, a. 5, solut. 3.

110. Corollaries. 1. A confessor who, even from culpable negligence, omits to warn a penitent concerning restitution to be made, of himself is not held to reparation of the damage which arises from this silence for the legitimate owner. The reason is that the confessor by force of his office is not constituted for protecting the temporal goods either of his penitent or of others. Nevertheless such a confessor administers the sacrament badly and therefore sins; indeed, if his silence is equivalent to positive approval, and especially if the penitent expressly asked concerning the obligation of restitution, then the confessor is the efficacious cause of the damage and is bound to restitution.⁶⁹

2. A servant who does not avert damage from the master's goods specially committed to him is bound to restitution. But when it is a question of other goods of the master not specially committed to his care, many think that servants from justice ought to impede damage which is inflicted by outsiders, but not damage which is inflicted by a domestic person, e.g., by sons of the family or by a fellow servant.⁷⁰ Others, however, probably deny both and acknowledge only an obligation of charity. Yet this obligation of charity can easily be grave both toward the master and toward the evildoer; servants maintaining deep silence concerning the thefts of sons of families should be mindful of this obligation.

3. Parents or superiors who freely permit sons or subjects to inflict damage upon a neighbor indeed sin, but are not bound to reparation of the damage. The reason is that the quality of parent or superior of itself is not sufficient that someone be constituted as a kind of sponsor for the damages of subjects. Nevertheless parents and superiors ought to repair damage of this kind, 1) if the sentence of a civil judge has condemned them on account of juridical fault committed, for such a sentence is just; 2) if that silence is rather to be compared to positive influence and is held as counsel or excitation; 3) if the damage inflicted was by a child before the use of reason, i.e., before the first seven-year period was completed, because if parents or superiors culpably do not impede such damage, they injure commutative justice.

4. Guards of customs, forests, fields, etc., are bound to reparation of notable damage inflicted, if they permit the damagers to go away unpunished; but if it is a question of damages of lesser moment, they ought not to exercise the greatest rigor toward the damagers, both because otherwise they would procure greater inconveniences for themselves and others, and because this is the reasonably presumed will of the injured owner.

5. He who has accepted money from a thief or other damager for desisting from denunciation⁷¹ is certainly bound to reparation, if from office he ought to denounce; he is also certainly bound to return money perhaps coming from the theft itself. But outside these cases it is controverted. Some deny,⁷² because then justice is not injured, but only charity; others affirm,⁷³ because to accept money and be silent in this case is nothing other than to provide help and security to the thief. The second opinion seems truer, if the money is provided before the theft or damage is to be committed; on the other hand, the first opinion is truer and safe in practice, if the money is provided to him who, after the theft or damage has been perpetrated, learned this by chance. But always (although he does not sin against justice) he who receives money for concealing the theft or damage caused acts badly, because it is a disgraceful contract, and because he exposes himself to great infamy and dangers, if his foul mode of acting is discovered.

⁶⁹ St. Alphonsus, Theol. mor. l. 3, n. 528.

⁷⁰ St. Alphonsus, l. c. n. 344.

⁷¹ Commonly Schweigegeld, hush-money, pot de vin.

⁷² Lugo, De iust. et iure disp. 19, n. 102; Lehmkuhl, Theol. mor. I, n. 1208; Génicot, Theol. mor. I, n. 574, Quaer. V.

⁷³ Tanquerey, De virt. iust. n. 541; Crolly, De iure et iust. III, n. 703.

316. Negative cooperators: the silent, the non-obstructing, the non-manifesting. - The silent one (niet berispen) is one who, before damage has been inflicted, is silent, when by word or sign, by shouting, reproving, warning, forbidding, he can and ought to impede it, as a leader of soldiers being silent when he sees damage to be inflicted by the soldiers, a guard of a house who, when a thief approaches, does not shout. - The non-obstructing one (niet beletten) is one who, while damage is being inflicted, does not impede it, when he is bound to this, as officers who do not prohibit an unjust aggressor from killing an innocent man, guards who do not drive thieves away, an advocate who according to his office does not defend his client, a magistrate who permits crimes to rage. - The non-manifesting one (niet overdragen) is one who, after damage has been inflicted, does not denounce the malefactor, while he can and ought to furnish this, as guards of a house who do not warn the owner concerning a theft committed, guards of taxes who say nothing about those things which defraud taxes.

Negative cooperators must restore when 1) from commutative justice or from office or pact, they are bound to impede damage, and 2) they can impede it reasonably without graver inconvenience, and 3) in fact they do not impede it.

It is necessary a) that they can and ought to impede it, otherwise cooperation is not voluntary and culpable; b) that, though they can, in fact they do not impede it, otherwise cooperation is not efficacious; c) that they are bound from commutative justice, and not from charity alone, piety, or legal justice, otherwise cooperation is not strictly unjust nor does it induce an obligation of restoring, since commutative justice alone obligates to restitution. But this obligation of justice can arise from an explicit or implicit pact or contract by which they freely undertook it, as with guards of forests or taxes, or from an office undertaken by force of which they are bound to prohibit damage, as with military leaders, tutors, judges. Yet these regularly are not bound to impede damage with graver inconvenience to themselves, say with danger of life: for no one is judged to wish to obligate himself when this cannot be done without grave detriment to himself, unless this was brought into the pact explicitly or implicitly, or unless it is necessary for the public good, as with soldiers.

Negative cooperators are and are bound to restitution:

1. Public officials upon whom, from a special office, it is incumbent to watch over public tranquility or the indemnity of citizens, as to damages which, because of culpable negligence, they do not avert from citizens.

2. Tutors and administrators of goods who do not impede damages impending over pupils, minors, and others whose goods they administer.

3. Counselors, electors, deputies, etc., who, abstaining from a vote from grave fault, do not impede a wicked sentence, election, law, if from special office they are bound to avert the damage following therefrom.

4. Guards of mountains, vineyards, forests, fields, fishponds, etc., who from grave negligence do not impede damages or do not manifest those done, unless they are of lesser moment, or the consent of the owner can be presumed, or they are permitted in a certain measure by legitimate custom; likewise prefects of taxes who permit these to be defrauded or do not denounce those defrauding them, unless in matters of lesser moment, or in those for which by received usage the tax is not customarily exacted so rigorously. - Nevertheless they are not bound to pay fines not yet imposed, to which those damaging or defrauding would have been condemned, because the treasury does not have a right to them except after the sentence of a judge.

5. Servants who, in those goods which are committed to their special care or custody, do not impede thefts or damages, whether inflicted by domestics or fellow servants or by strangers, because they are bound to guard those goods from contract and therefore from justice; but not as to other goods not specially committed to them, for they do not seem bound to guard these, whether against fellow servants or even against strangers, except from charity.

6. Owners who from grave negligence do not impede damages inflicted by animals of which they have ownership or custody; but if there is present only juridical fault, they are not bound except after the sentence of a judge.

7. In the same way, fathers of families who do not impede damages inflicted by sons who are not yet masters of themselves; but parents, teachers, superiors are not bound to restore damages of sons or subjects who have sufficient use of reason, because from the office of justice they are not bound to protect the goods of others. Unless their silence were equivalent to approval or protection and positively moved to inflicting damage: for then they would be bound as those consenting or counseling, or as patronizing or furnishing recourse. But if by civil law they are sometimes more obligated, or on account of juridical fault, as to these they are not bound in conscience except after the sentence of a judge.

8. Generally, he who culpably impedes a neighbor wishing legitimately to avert damage, if he has used an unjust way, or if the other ought from justice to avert the damage; but not a confessor who from grave negligence merely omits warning the penitent concerning restitution to be made or concerning injury not to be inflicted, because, by force of his office, the confessor is bound from justice to provide for the spiritual good of the penitent, but not to avert the temporal damage of others, although he can be bound to this from charity. Unless the silence in the circumstances is equivalent to positive counsel, just as also when the confessor gives a positive unjust response: for then he is a positive cooperator and is bound as a counselor from office.

It should be noted that he who has accepted money for not denouncing is bound to restitution, both if the money is stolen, in which case he is one receiving, and if he ought to denounce from office, in which case he is a negative cooperator; but not if he is not bound from justice to denounce, because just as he can be silent because of the prayers alone of the thief without injustice, so he can do the same because of gifts. Unless, however, in this way he would furnish greater security to the one damaging, as can more easily happen if the money was accepted before the damage is inflicted: for in this case he would be a positive cooperator after the manner of one patronizing or furnishing recourse.