495. Prenotanda. Negative cooperators are said to be those who do not impede the damage of the neighbor which they are bound from justice to impede. Three are numbered: the silent, the one not opposing, the one not manifesting.

a. The silent one is said to be he who before the damaging does not impede the damage, for example, does not deter thieves by a shout, does not warn concerning the damage to be inflicted.

b. The one not opposing is said to be he who, while the damage is being inflicted, does not impede it, for example, does not defend the thing or turn away the damaging action, as a guard who does not drive away a thief.

c. The one not manifesting is said to be he who after the damaging does not reveal the damage inflicted either to superiors or to the damaged person, so that the damage may be repaired.

496. Their obligation. Those who are bound from justice to impede damage and do not impede it, when they can do so without grave inconvenience, must repair the damage inflicted.

a. If there is question of restitution because of damage not impeded, first of all one must investigate whether he who did not impede the damage was bound to impede it from justice or from another virtue.

All are bound from charity to impede the damages of others by both moral and physical influence if they easily can, and this in two ways: both so that the damager may be turned away from sin, and so that evil may be forestalled from the one to be damaged.

Those on whom the office of superior rests are bound by a special obligation, which arises from superiority, to avert damages from their subjects. Thus a father, who must procure the good of his children from piety, is bound from piety both to turn his son away from inflicting damage on others and to impede others from harming his son; a prince, who must procure the common good from legal justice, of itself is bound from legal justice to forestall that someone inflict damage on the community over which he presides. Yet the condition itself of superior does not of itself oblige from commutative justice to preventing damages, whether those inflicted on subjects or those inflicted by subjects, unless superiors are obligated to this by a special office.

b. Only he who is bound from commutative justice to impede damage and does not impede it must repair it. But those are bound from commutative justice who are bound by force of an explicit contract or by force of office or implicit contract.

alpha. Damage inflicted by a son who does not yet have the use of reason, with theological fault supposed, the father is bound to repair before the sentence of a judge, because he must watch over sons not yet having the use of reason from justice. But damage inflicted by a son who already has the use of reason the father is not bound to repair, because he must watch over sons having the use of reason only from piety; the son will repair it as soon as he can. Yet after the sentence of a judge such damage too must be repaired, provided it was truly inflicted, because a law cannot be called unjust which incites parents and superiors to greater care and vigilance. The same must be said if a father catches his son inflicting damage and is silent in those circumstances in which silence is equivalent to approval. But in this case by his consent he cooperates positively.

There are some who oblige parents to repair damage inflicted by sons not yet having the use of reason, even if it was done without theological fault of the parents. Yet rightly they are held immune from the obligation of restitution if the damage was inflicted although the parents watched over their children with ordinary diligence.¹

beta. He who, asked by a thief, is silent, is not bound to restore; indeed neither is he bound to restitution who, in order to be silent, received money from the thief, unless he must shout from office. But if he receives money to watch whether someone is coming, he is held for the damage, because he cooperates positively in the theft.

gamma. Guards of vineyards and forests who do not impede acts of damaging or do not denounce the damagers are bound to repair the damages inflicted by them, unless the owner can be considered less unwilling, as if there is question of things of less moment, or if something is permitted to the poor. But they are not bound to compensate the fine, because they were hired only to avert damages from the owners.

The same must be said of overseers of customs duties who permit duties to be defrauded or do not denounce those defrauding, unless there is question of things of less moment, or of things for which from usage the tax is not usually exacted so precisely. Yet they are not bound to restore penal fines nor the price which they received from the defrauders so that they would permit the defrauding.

delta. The owner is bound to repair damage inflicted by his animals, and indeed before the sentence of a judge if with grave theological fault he neglected custody of them; but if theological fault did not intervene, after the sentence of a judge, provided the damage was truly inflicted. Here it must be noted that the owner culpably neglects the custody of animals even when he knowingly places over them an unfit or negligent guard.²

c. But he is not bound to impede damages with grave inconvenience, because of itself no one, by entering a contract or undertaking an office, is considered to obligate himself to this.

Whether he who does not cast a vote is bound to restitution when there is question of damage to be inflicted on another.

He is not bound to restitution if by his vote he cannot impede the damage, because no one is held for damage inflicted by another which he himself cannot impede. If by his vote he could have impeded the damage, one must distinguish: if the damage which arises from omission of the vote he is bound to impede from commutative justice, he must repair it; but if he is bound to impede the damage only from another title, whether from charity or from legal or distributive justice, by omission of the vote he will sin against that virtue which obliges him to vote, but he is not bound to restitution.

He is bound to give his vote from commutative justice who from office must protect the rights of the damaged person and therefore from office must impede his damages. In order that in a particular case the obligation of restitution be present, it is required in addition that he who must vote from office was bound to be present at the voting, or culpably was absent from it, and that he foresaw that damage would arise from the omitted voting.

¹ C.A. Section 1309 agrees.

² G.A. Sections 1299, 1315, 1320.

497. Obligation of the confessor. From these things the obligations of the confessor are now gathered without difficulty, when he either obliges a penitent to make restitution to which he is not bound, or frees him from making restitution to which he is bound. For a. the confessor with respect to the penitent must be considered as one counseling, who furnishes doctrinal counsel; b. moreover the confessor must give sound counsels not only from charity, but also from office and therefore from justice in those things which concern the spiritual good of the penitent; c. but in those things which pertain to the temporal good of the penitent, insofar as he is confessor, he has no obligation of justice. Therefore:

alpha. The confessor who with grave fault positively frees from making restitution a penitent who must restore is himself bound to restitution toward the third person, because by his counsel he is the efficacious moral cause of the damage which the third person suffers.

beta. The confessor who with grave fault induces a penitent who need not restore to restore is bound to restitution toward the penitent, because he is the efficacious moral cause of the damage which the penitent suffers.

gamma. The confessor who culpably does not warn concerning error a penitent falsely thinking himself bound to restitution is not bound to repair the damage which the penitent restoring suffers: for the confessor is indeed bound from justice to impede spiritual damages, but not temporal damages of his penitent. Yet if the silence of the confessor would deservedly be taken by the penitent for an affirmation of the obligation of restoring, the confessor would certainly be bound to repair the damage.

b. He who culpably does not warn the penitent concerning making restitution and thus is the cause why damage is not repaired to the injured owner is not bound to restitution, because he is not obligated from office to forestall the temporal damages of others.¹

Article Seventh. On Restitution to Be Made by Cooperators

Concerning restitution to be made when several concur in inflicting the same damage, it is asked: a. what or how much; b. in what order the individuals must restore.

¹ Cf. De sacramentis^3, n. 420.

I. Negative cooperators are: 1° the silent one; 2° the one not opposing; 3° the one not manifesting. The silent one is said to be he who by speaking or warning does not prevent damage to be inflicted. The one not opposing is he who does not impede the damage that is being inflicted or omits to procure restitution to be made. The one not manifesting is he who does not denounce damage that has been inflicted (St. Thomas, II-II, q. 62, a. 1; St. Alphonsus, III, 573).

II. The requisites in order that negative cooperators be held to restore are:

1. That they ought by strictly so-called justice to have prevented the damage. Now an obligation of strictly so-called justice arises from a contract, whether express or tacit.

By express contract there are bound, for example, keepers of woods, of hunts, administrators of the goods of an institute, etc.

A tacit contract is contained in the acceptance of an imposed office which, by reason of the remuneration annexed to it, is also considered a benefit; but not in the acceptance of an office which lacks the character of a benefit, as the office of parents or of the Superior of a religious house (St. Alphonsus, III, 360, but doubt 1°). By contract, at least tacit, there are bound, for example, officials of the police, who must provide for the safety of citizens, customs guards, etc., as will be explained more below.

2. That they could have prevented the damage without grave inconvenience. I said without grave inconvenience, because commonly contracts are not entered into with a greater burden, nor do offices carry a greater burden with them.

3. That with theological fault they did not impede the damage, according to what was said in n. 995 (St. Alphonsus, III, 573; cf. St. Thomas, II-II, q. 62, a. 7).

Corollary I. By force of natural law, owners, likewise parents or tutors, are bound to restore damages inflicted by their things which cannot govern themselves - for example by animals, by children lacking the use of reason - on account of culpable negligence; namely, by justice they are bound with moral diligence to prevent the said things from harming others.

Corollary II. By force of civil law, even if theological fault is lacking and merely juridical fault is had, commonly these are bound: 1° parents or tutors for damage inflicted by minor children living in the same household; 2° teachers and craftsmen for harm done by pupils or servants during the time in which they are under their custody; 3° masters for damage inflicted by animals, etc. Nevertheless, the law does not bind except after the sentence of a judge (n. 1009).

Corollary III. Guards of taxes who connive with those defrauding are bound to restore the value of the taxes to be paid. It is disputed whether they must also restore the fine which those defrauding, if denounced, would have had to pay. Now with St. Alphonsus (IV, 237) and others we deny, because a fine has the character of a penalty; but a penalty, of course after the sentence of a judge, is to be borne by the delinquent, not by another.

Objection. He who unjustly impedes another from obtaining a good is bound to restitution. But guards, by not denouncing those defrauding taxes, act unjustly, and therefore unjustly impede the treasury from obtaining a good, in the case from receiving a fine.

Response. He who unjustly impedes another from obtaining a good is bound to restitution if that good has the character of a penalty: I deny, because the penalty is to be borne by the delinquent himself, condemnation having been posited.

Keepers of woods, of hunts, etc., are bound to restore the damages that followed for the owner from their omission (St. Alphonsus, III, 573). "Nevertheless, the damage must be of great moment, and the owner rationally unwilling. Hence the keeper will not be bound to restore if he permits a poor person to take something away; or if the one defrauding were of such condition that he prudently presumed the owner, if he knew, would give him the faculty or would afterward ratify it; or finally, if by custom or by the patience of the Government knowing and dissimulating, it had been received that they should perform the office not so severely and with so great a burden."¹

Corollary IV. Deputies who, by not casting a vote, are the cause that an unjust law is adopted are bound to restore damages that will follow from it for citizens; not so electors who, by neglecting to elect, are the cause why an unjust deputy is elected. The reason for the former is that deputies are bound to cast a vote from an office to which remuneration is annexed. The latter must be admitted for the contrary reason.

Corollary V. Servants who culpably did not prevent damage to the master are bound to restore if there is question of a thing specially committed to them. If there is discussion of other things, they are not bound to restore damages inflicted by fellow servants, because to prevent hatreds, the prevention of damages of this sort is not considered included in the contract (St. Alphonsus, III, 344). As regards damages inflicted by outsiders, there is dispute. Some affirm, because by the very fact that they are taken into the household, they are considered to have undertaken that burden. But that is today called into doubt in law, because servants are no longer accustomed to obligate themselves beyond the limits of the works assigned. Nevertheless, attention should be paid to circumstances, which sometimes are such that the aforesaid burden is considered to have been undertaken; this can easily happen, for example, if a servant is hired by a widow.

Corollary VI. A confessor who - even culpably - merely omits to warn a penitent about restitution to be made is not held by the obligation of restitution, neither with respect to the injured person, nor with respect to the penitent who perhaps suffers damage from the omitted warning. The reason is that the confessor is not bound by justice to warn the penitent. It must be said otherwise, however, if the confessor expressly or equivalently - for example if, when questioned, he is silent or dissimulates, although the reason for being silent or dissimulating is lacking - exempts the penitent from restitution (St. Alphonsus, VI, 621).

Corollary VII. A witness, even though legitimately interrogated, who does not manifest what he knows is not bound to restore, because he is not bound by justice to open the truth. The same must be said of a witness who falsely says or swears that he knows nothing, because, although he thus says or swears, nevertheless he did not by an unjust means impede someone from obtaining a good; since even in the case he impeded someone from acquiring a good not precisely by that lie or perjury, but by opening nothing, which is not unjust (St. Alphonsus, IV, 270).

¹ Aertnys-Damen, II, n. 786.

536. (A) Notion. There are three negative cooperators: the silent, the one not opposing, the one not revealing. (a) The silent person is he who, before damage is inflicted, does not impede it, at least by warning, when he can and ought; e.g., the guard of a house who, when the thief arrives, does not cry out. (b) The one not opposing is he who, while evil is being inflicted, does not impede it, when he is bound to this, e.g., soldiers who do not prohibit an unjust aggressor from killing an innocent man. (c) The one not revealing is he who, after damage has been inflicted, does not denounce the damager, when he can and ought to furnish this; e.g., customs guards who say nothing about those who defraud taxes.

537. (B) General principle: Negative cooperators must restore when these two things concur: namely when 1. from justice (i.e., from office or from pact) they are bound to impede the damage; and 2. they can impede it without a graver inconvenience.

For, if they are bound not from justice, but only from charity or another virtue, they indeed sin against these virtues, but not against justice, and therefore they are not bound to restitution. - Now from justice those must impede damage who obligated themselves to this by some pact, or contract, whether explicit or implicit, or who undertook a function, or office, by force of which they are bound to prohibit damage: for there is then a quasi-contract.

Moreover all these are not judged to obligate themselves to impeding damage with the greatest inconvenience to themselves, e.g., with danger to life, unless the public good is in question, which sometimes demands the sacrifice of one's own life.

538. (C) Principal applications: - (a) A confessor who, even from grave negligence, neglects to warn the penitent about making restitution is not bound to restitution, unless his silence is equivalent to positive counsel, e.g., if the penitent asked the confessor to warn him concerning the duty of restoring; for the confessor, by force of his function, is indeed bound to provide for the spiritual good of the penitent, but not to guard against the temporal damage of others. - But if he knowingly gave a false response, he is bound to restitution as one counseling from office.¹

¹ Concerning this the matter is treated more fully in the Treatise on Penance, n. 415-416.

539. (b) Parents, or superiors, who suffer damage to be inflicted upon the neighbor by children or subjects, must restore: when by their silence they moved the children or subjects to inflicting damage; or when the children are not yet masters of themselves. - Otherwise, by natural law, they are not bound to restitution; for from office they indeed have care of their own, but are not bound to protect the goods of others. But civil law proceeds further in many regions at least.

540. (c) The owner is bound to repair damage inflicted by animals of which he has ownership, or use, or custody, when it was caused by his grave negligence; for upon him is incumbent the care of watching lest they harm others.

(d) Servants who are hired as guards of things, e.g., guards of houses, vineyards, and forests, are bound to repair damage inflicted upon those things which have been committed to their care; for by contract they obligated themselves to averting this damage. - As regards servants who did not explicitly undertake such a burden, it is controverted whether, by not impeding damages inflicted by strangers, they are bound to restitution; many indeed affirm, because, by entering the household, they are judged implicitly to undertake the obligation of defending domestic goods against strangers;¹ yet not a few authors, especially modern ones, probably deny this, because, according to our customs, servants obligate themselves in justice to nothing except faithfully carrying out the special function committed to them. - In practice, attention must be paid to the usage and customs of places, and also to the psychological dispositions of servants; nevertheless, according to all, from charity they are bound to impede this damage.

¹ It is said against strangers; for unless from special office they preside over the whole house, they are not judged to obligate themselves to protecting the goods of the master against other servants: for this would be too odious.

(e) Customs guards who from grave negligence do not collect taxes are bound to restitution, because by force of their function they must collect these at the opportune time, and denounce those defrauding them, unless the question concerns things of lesser moment, for which tribute is not usually rigorously exacted.

541. (f) On which occasion it is asked whether he is bound to restitution who received money from a thief in order not to denounce the guilty person. - If the question concerns him who is bound from office to denounce, he must restore to the injured owner, because he truly is an unjust cooperator; - the same must be said if the money accepted is stolen, because then he is a receiver; - outside these cases, it is controverted: some deny with Lugo,² because then charity indeed is injured, but not justice; others affirm,³ because to receive money and be silent in this case is nothing other than to furnish help and security to the thief. We embrace this latter opinion as more probable, consonant with natural equity and the public good. But restitution must be made not to the thief, but to the injured owner or to the magistrates.

² Lugo, disp. XIX, n. 102; Genicot, n. 547.

³ Crolly, t. III, n. 703.

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.

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.

Negative cooperators are those who do not prevent the damage of the neighbor when from office they are held to prevent it. They are commonly called the mute one, the one not opposing, the one not revealing. 1st. The mute one is he who does not speak, does not cry out, does not warn beforehand the one to be damaged, while by office or contract he is held to this. 2nd. The one not opposing is called he who, while damage is being inflicted, does not oppose, does not guard the thing, although he ought to perform this from justice. 3rd. The one not revealing is called he who, after damage has been inflicted, does not denounce the damager to the injured owner or superior, although from office and thus from justice he ought to denounce. Moreover the same principles and the same moral applications suit all these.

I say. By reason of damage not prevented, all and only those are obligated to restitution who from office were held to prevent it. All indeed, because, the office being supposed, there already exists a contract or quasi-contract which obligates from justice; but only those, because, the office failing, the whole force of obligation is from charity. But it is further necessary, for imposing the burden of restitution, that those who from office are held to prevent damage be able to prevent it without grave burden, because neither a contract nor positive law is accustomed, at least for the most part, to obligate with grave inconvenience. - Cf. St. Alphonsus, n. 573.

Question 1. Whether guards, for example, of woods, etc., are held to repair damage inflicted upon the owners?

Resp. Affirmatively; if by reason of their negligence and dissimulation the profit of the owner ceases, they are held to compensating the profit ceasing and the damage emerging. - Lugo, disp. 37, sect. 8.

Question 2. Whether the same are held to restore the price which perchance they accepted for dissimulating?

Resp. They are not held after the fact, neither to those from whom they accepted, nor to the owner: not to those, as we saw before when speaking of acceptance for an evil thing; not to the owner, because that is not taken away from the owner. They must make good to him the detriment which he has suffered, not the price which is handed over for the detriment. - Lugo, ibid.

You Will Resolve. - 1st. Servants are not held to restitution, at least probably, when through fault they do not prevent damages inflicted upon the master, because they are not hired except for labor and for general assistance. Nevertheless, except those who are placed over the keeping of a special thing and conduct themselves negatively while they see damage being inflicted on it. Cf. St. Alphonsus, on the fourth precept of the Decalogue, n. 344. - Ballerini, note (a), p. 582, note (b), p. 582, and note (a), p. 583.

2nd. A superior is not held, at least as to the internal forum, to repairing damage inflicted by his subjects, even if by not preventing the damage he sinned gravely. The reason is that the quality of superior by itself does not suffice for someone to be constituted as quasi-sponsor for the damages of subjects. Nevertheless, except if his silence is equivalent to a positive impulse. I said as to the internal forum, for as regards the external forum and precisely concerning servants according to our law, the superior is held if either expressly or implicitly he wills or approves the damage inflicted by the servant. But he is judged to will this damage when the servant causes it under his immediate supervision or from natural and culpable negligence known to the master himself. Cf. St. Alphonsus, n. 578. - Kent, Comment., vol. 2, part 4, lect. 32, n. 259.

3rd. For the same reason neither a husband nor a father is held for damages inflicted by a wife or by minor children. But in the external forum they are sometimes held; but in what cases and by what reason, you may see in Kent, Comment., vol. 2, lect. 28 and 29.

SILENT, NOT HINDERING, NOT DISCLOSING

I. These three concur to damage negatively only, inasmuch as they do not impede it when they can and ought to impede it; whence it comes that the damage is imputed to them.

The silent one is he who holds his peace when he could and ought to speak, forbidding the thief, dissuading him, reproaching him, crying out, etc., lest he do damage, or that damage inflicted be repaired.

The non-hindering one is he who, when he could and ought to impede the damage by bodily aid, or procure its restitution, omits to do so.

The non-disclosing one is he who, when he could and ought, does not denounce, does not uncover the wrongdoer, whether before the deed, that he may be impeded, or after, that reparation be made.

Therefore the silent one omits verbal effort toward the damager ; the non-hindering one, bodily effort toward the same; the non-disclosing one, verbal effort toward the magistrates or owners damaged or about to be damaged.

II. That these three, while they do not impede damage, be held to its restitution, three things are required : first, that they have culpably omitted to impede it; second, that they could have impeded it without grave loss to themselves; third, that they be bound to impede it from justice ⁴⁰⁵ . ⁴⁰⁵ Here q. 62, a. 7, c et ad 3.

III. Those indeed are bound to impede from justice who are bound from contract or quasi-contract, that is, from office : for he who takes up an office implicitly obliges himself to render the things which belong to that office.

Hence you will infer that guards of cities, fields, vineyards, forests, rivers, tolls, customs dues, are held to restitution of the dues or of damage inflicted in fields, forests, etc., while they do not impede thieves, plunderers, defrauders, etc.

As to payment of the fine which the damagers would pay if denounced or caught, it is probable the guards are not bound to it while they do not denounce or apprehend the damagers; because guards are not bound from justice to accuse for this end, that the state or owner grow rich from fines, but that the thief pay the dues and damages be impeded. Therefore. — Proof of the antecedent. Their office is not, nor are they constituted for this, that they procure fines, but that they receive the dues and that the things committed to them be kept whole. Therefore.

It is confirmed. Fines are not imposed that the state or owner grow rich from them, but that laws be kept and subjects held to duty. For pecuniary fines are imposed for no other reason than corporal ones, for example imprisonment, exile, the galleys. In these, however, only the reason of the law to be kept is attended to. Therefore also in those. Therefore guards are not constituted that the state or owner derive advantage from fines. If however through their silence or negligence the defrauding of dues or the damaging of things committed to them is increased, they are bound to some restitution, according to the judgment of a prudent man.

You will ask whether a witness who, legitimately interrogated by a judge, holds his peace and refuses to bear testimony, is held for the damage which follows from his silence.

I answer, more probably negative, with Bannez, Silvius, Lessius, etc.; because the command of a judge or superior does not impose an obligation of commutative justice, but only of legal obedience. Whence the witness by holding his peace does not sin against commutative justice, but only against legal obedience. Nor does it stand in the way that judge or superior intends to impose on him the office of testifying, because such a one does not accept it.

But the obligation of commutative justice, especially in our free acts, arises rather from the acceptance of the obligated party than from imposition by a superior, inasmuch as by accepting he promises and binds himself; otherwise, if he does not accept.

The same, for the same reason, seems to be said of him who, a monitory having been promulgated to reveal a crime, does not reveal it. But again of this below, while we treat of the injustice of a witness.

IV. It is asked 1° specially whether a confessor who through ignorance or gravely culpable negligence does not enjoin restitution upon a penitent who is bound thereto makes himself liable to this restitution.

I suppose that, if the penitent asking whether he ought to restore, the confessor answered nothing, he himself would certainly be held to restore, because one silent in these circumstances holds himself not merely negatively toward non-restitution, but is reckoned to concur positively to it, as persuading or consenting; for then the common saying is verified : « He who is silent seems to consent. » The question therefore concerns the confessor who holds himself merely negatively by silence.

I answer. It is more probable that the confessor, qua such, whether he have care of souls from office or not, is not bound in the case proposed to restitution. So of our authors Ledesma, Serra ; among foreigners, Valencia, Sa, Laymann, Sporer, Daelman, etc., against Navarro, Silvius, the author of the Supplement of Tournely, etc.

Proof 1°. The confessor is bound first from office to admonish the penitent concerning the obligation of restoring with respect to spiritual things only, not with respect to temporal things, whether of the penitent himself or of another third party ; for that office is wholly spiritual. Therefore, while he omits to admonish, he violates justice with respect to temporal things not at all, but with respect to spiritual things only. But violation of justice alone induces the obligation of restoring, and consequently the confessor is bound to repair spiritual damages, if they follow from his silence, not temporal ones.

Proof 2°. Given that the confessor, by virtue of administration of the sacrament of Penance, is bound from justice with respect to the temporal good too of the penitent; nevertheless this obligation is not extended to the temporal good of another third party, with whom by virtue of this very administration precisely he entered into no pact nor any convention, even tacit ⁴⁰⁶ . Therefore, omitting to admonish, he will indeed sin against the justice owed his penitent, but not against this third party. — I subsume. But restitution is owed to him toward whom justice is owed and with respect to whom it is violated. Therefore. ⁴⁰⁶ S. Lig., lib. IV, n. 578.

That third party has indeed a right that the penitent restore to him, but he has no strict right that the confessor, qua such, admonish the penitent in this matter, since by virtue of his office he did not bind himself thereto ; as though the confessor by reason of administering the sacrament of Penance were ex officio procurator of the temporal goods of anyone whatever.

[It is asked 2° whether a superior is held to repair damage inflicted by his subjects.

I answer 1°. He is bound in the external forum, unless he prove he could not have forestalled the damage. So by Roman law and commonly by present civil law ⁴⁰⁷ . In Gallican law express mention is made : 1° of the father, and after his decease, of the mother, relative to minor children dwelling with them ; 2° of the master or commander, relative to servants and agents ; 3° of the teacher and craftsman, relative to disciples and apprentices. If no theological fault has been committed by the superior, he is not bound to reparation until after sentence of the judge, if recourse is given him against the damager, who in conscience ought to make him whole if he can. ⁴⁰⁷ Cod. civ., art. 1384.

I answer 2°. In the internal forum he is not bound for the damage of the superior unless he commit theological fault against justice with respect to the injured person, that is, unless his silence or tolerance was morally equivalent to positive impulse.

The reason is that the superior, although he ought rightly govern his subjects, is not bound from justice to watch over the temporal goods of others ⁴⁰⁸ .] ⁴⁰⁸ Goiset, n. 963 et 964 ; Gury, n. 692.

[It is asked 3° whether servants are held to restitution for not impeding damages inflicted upon their masters.

I answer 1° affirmative, if the matter concerns goods specially committed to them; for they are bound by contract.

I answer 2° probably affirmative, when the damage is inflicted by strangers, even upon goods not specially committed to them ⁴⁰⁹ . This seems to arise from quasi-contract; for masters reasonably hold their servants as set against such plundering of their goods. Several also say servants are then bound in solidum if several were similarly negligent herein ⁴¹⁰ . ⁴⁰⁹ S. Lig., lib. IV, n. 344. ⁴¹⁰ Id., ibid.

I answer 3° negative, more probably, against certain ones, if the damages be inflicted by fellow-servants ; because servants are not hired that they watch over one another.]

XVIII. QUESTION VII. What of those who negatively cooperate in another's evil, as are the silent, the non-opposing, the non-disclosing? ANSWER. These three indirectly cooperate in the committing of another's evil, namely by not crying out, by not hindering, by not disclosing, when they could and are bound in justice. These are held to restitution. Now they are bound in justice who are appointed to it either by office or by contract. Bound to restitution therefore are governors, public ministers, physicians, surgeons, guardians, curators, keepers, who do not hinder an evil which by their office they ought to hinder; shipmasters who do not hinder the sinking of the ship; fathers of families who do not oppose the dissoluteness of their sons; commanders of war who do not draw back their soldiers from unjust plunderings; princes who do not, so far as they can, hinder homicides, robberies, and monopolies.