Order among co-operators

When several have co-operated in some act of injustice for which they are bound to make restitution there may be question as to who is primarily bound, and whether the others are excused if he repairs the damage. The answer to such questions will be clear from what follows.

When those who co-operated in injustice are only bound to restore ratably, no order need be observed among them. Each must fulfil his obligation independently of the others and restore his share. Even if they are bound jointly and severally to make restitution, but all co-operated in the unjust act in the same way—as, e.g., by conspiracy and mutual help— the question of order will not arise. Each and all are bound to restore their quota, and in default of any, the rest are equally bound to indemnify the injured person. If this has been done, those who indemnified the injured party will have a claim against the defaulters.

If, however, those who are guilty of an injustice in common co-operated in it in different ways and degrees, so that, for example, one gave the command, others executed it, and others who were bound to prevent it neglected to do so, then it is plain that all are not equally primary causes of the injustice, nor are all equally bound to make restitution. In such cases the co-operators are bound to make restitution in the following order: (a) If anyone has the property of the injured person he must restore it, for res clamat domino.

(b) One who co-operates by command is the principal cause of the injury; the rest merely act in his name and for his advantage, so that he is primarily bound to make good the damage done.

(c) Thirdly, those who inflicted the damage will be bound to make it good. (d) Then others who co-operated positively by advice, consent, or flattery, will be bound. (e) Finally, those who co-operated negatively.

If the primary causes of the injustice make restitution, the rest will be free, whereas if the secondary causes who merely acted for others restore to the injured party, the primary causes will thereafter be bound to make restitution to them.

What order is to be observed as regards cooperators? Cooperators in the damage of another are either held to restitution for a proportional part, or are held to restitution in solidum, namely each one to restoring the whole. If the first, no order necessarily has to be observed among them. If the second, order among them necessarily has to be observed. For then the obligation of restoring in solidum is an obligation by which one is held to restore or repair the whole damage inflicted by several, when several concurred together to inflict the whole damage. Therefore it is altogether necessary that order be observed. For he who has suffered damage has a right only to one integral restitution or reparation of the damage. Therefore several damagers cannot be obliged in solidum absolutely, but only conditionally, namely if others who are held prior do not pay; or if others who are held at once together do not pay. L. 579.; St. Thomas, 2. 2, q. 62, a. 6 ad 3.; a. 7 ad 2.

What order is to be observed as regards cooperators obliged in solidum? - If cooperators concur by a diverse species or grade of cooperation, then in the first place the principal causes of the damage are held; so that there is held: 1. The possessor of the thing, in individual form or in its equivalent, indeed even if he unjustly destroyed the thing without becoming richer from it. 2. The one commanding; yet if the one commanding was the principal cause both of the taking away of the thing and of its destruction, or only of its destruction, then he is held in the first place, as the principal damager. 3. The executor, namely the mere executor of the damage inflicted, as an instrumental cause.

But in the second place secondary causes are held; so that there are held 1. the remaining positive cooperators; 2. negative cooperators. The reason is that each one is held to restitution according as he influences the damage of another. Positive, secondary causes, such as one counseling, consenting, praising, participating, since some are not subordinated to others, are held equally, in the same place, yet more or less according to greater or lesser influence, if there is question of restitution for a proportional part. Among negative causes those are held first which influenced the damage more immediately and more. And so the guard is held first concerning the fire of a forest, then the steward. L. 560, 580.; St. Thomas, 2. 2, q. 62, a. 7.; C. A. 1301, 1302, 1304, 1312.

Resolutions: Secondary causes are held to nothing if the principal cause has restored or has obtained remission of the debt. For secondary causes are held only in the defect of the principal cause. But when the principal ceases, the accessory ceases. Hence, if one of the secondary causes restores, the principal cause is held to make it harmless; likewise, if a secondary cause is freed by the creditor, the principal cause is not therefore freed. For the obligation of the latter is independent of the obligation of the former. St. Thomas, 2. 2, q. 62, a. 6 ad 2, a. 7 ad 2.

What order is to be observed as regards several equal cooperators? - If cooperators concur in the damage of another by the same species of cooperation, or by the same grade of cooperation, then each equally ought to restore in solidum, yet conditionally, without any determined order; for none of them, as more influencing the damage of another, took upon himself a greater burden of reparation. But it is said conditionally, namely if the other cooperators do not restore, or no one pays in solidum. But all are held absolutely to satisfy for a proportional part, since all equally concur in another's damage.

Resolutions: If one of the causes equally obliged has restored the whole debt, the others are held to pay back to him the part which he also gave for them, and each is held for his own part. For in regard to him the reason for restitution in solidum does not press; since each one is not the cause why he first restored the whole and the others do not restore. But if several from causes of this kind equally obliged were to restore, and one could not or would not restore his part, the others would have to divide it among themselves. If the creditor remits his debt to one of the debtors equally obliged, he is judged to remit to the others that one's part; for if he exacted the whole from the others, they would compel him to restitution, and so the remission would be frustrated. L. 581. But the others are still held to restoring their own part, unless the condonation was altogether full, or is deservedly presumed to be such. - From C. I. 1281.; C. G. 1285., remission made to one solidary co-debtor frees all the others entirely, unless the creditor expressly reserves to himself rights against them. Likewise from C. I. 1195, 1196.; C. G. 1210, 1211., a creditor who consents to the division of a debt for one of his debtors preserves against the others a solidary action, with that part of the debtor whom he freed from solidarity deducted, according to C. G.; and without it being deducted, according to C. I., since the matter was done among others. Moreover, a creditor who receives from one the portion offered by him without any protest tacitly remits to him the solidary obligation. And if for ten continuous years he receives this portion, he will no longer be able to act for the solidary obligation.

Whether the executor is held prior to one counseling for making restitution? - Resp. "If the counsel is useful to the one furnishing it, he himself is held first; otherwise, if it is useful to the executor alone. But if it is useful to each, each is held pro rata; and I think the same if no utility came to either from the damage inflicted. But in the defect of the other, that one is held in solidum." L. 560.

Yet it must be noted that although the unlearned are held in solidum, it is rarely expedient to oblige them to the whole, since they will with difficulty persuade themselves that they are held to restoring the part taken away by their associates. Indeed it can be sufficiently presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them, since otherwise there is great reason to fear that they would restore nothing if they were obliged to the whole." L. 579, 580.; Gousset 977.

317. Principle II. Cooperators simultaneously inflicting damage on someone can often be bound to integral restitution in solidum or solidarily, so that one, in default of another, must restore the whole. - This solidarity is the obligation incumbent upon individual cooperators, in default of the others, of repairing the whole damage which was inflicted by several together; yet by this law, that if reparation has been made by one, the others are no longer bound toward the injured party, with recourse nevertheless preserved for the one restoring against those who are obligated equally or before him. Now:

I. Individual cooperators are bound to restitution in solidum whenever they have had an influence upon the whole damage, so that the whole can be morally attributed to each one. For each one is bound to repair the whole damage of which he is the truly unjust, efficacious, and culpable cause.

But such are:

1. He who was the principal cause of the whole damage, as a mandator, or a thief who sought others as associates for taking away a stolen thing: "principally," says St. Thomas, a. 7, ad 2, "he is bound to restore who is principal in the deed."

2. Those each of whom was a necessary cause for inflicting the whole damage, as those giving a vote without which an unjust sentence is impossible, or two thieves taking away another's thing which one alone could not have taken away: physically indeed they cause partially, but morally the whole proceeds from each. So also those who ought from justice to avert the whole damage, and while they can, do not impede it; because morally they are accounted a necessary cause.

3. Those who, from a common conspiracy properly so called, were the cause of the whole damage, whether by mutual persuasion, by entering upon a plan, by common abstention, etc., as robbers who enter upon a plan of killing an enemy or plundering a house, and mutually incite themselves to this, or guards who agree about not impeding an injury: for they are the moral cause of the whole damage; but not those who without mutual influence simultaneously inflict damage, for example, set fire to the same house, or sink a ship, or snatch away the goods of the same person, because their influence is only partial.

4. Also those each of whom was a sufficient cause of the whole damage, as if two, discharging a firearm at the same instant, inflict a lethal wound on the same person, or, simultaneously giving evil counsel, move an agent to a damaging which the counsel of one would sufficiently have provoked.

II. On the contrary, cooperators are not bound in solidum to restitution, but only according to the proportion of influence, whose damaging action a) was neither necessary, b) nor sufficient, c) nor proceeding from conspiracy. For they are only the cause of part of the damage.

Thus he who, as a soldier in war, while others are doing damage, also caused some damages, is bound to repair only the part of the damage which he himself inflicted; or he who, while two are perpetrating theft in a house, comes up as a third and also steals; or he who sets fire to buildings which others have already efficaciously burned.

318. Principle III. Order among cooperators is to be observed, whether they caused the damage in the same grade or in a diverse grade. Hence there is a twofold rule:

I. If cooperators have concurred in the damage in the same grade and mode, each is equally and indiscriminately bound to restore, each one his own part, and if someone does not restore, those who are bound in solidum must restore this part proportionately.

Thus if of five all are equally mandators, or counselors, or participants, and the damage is 5000 fr., each one is bound to restore 1000 fr.; but if one does not restore, the others besides must each pay 250 fr., but they have recourse against him who did not pay his part.

II. If cooperators have concurred in the damage in a diverse grade, ordinarily they are bound in this order: 1. he who now detains another's thing; 2. the mandator; 3. the executor; 4. the other positive cooperators; 5. negative cooperators. - It is said: ordinarily, for exceptionally the order can be somewhat inverted. The principle is: he ought to restore first who in fact principally or more greatly influences.

Therefore 1) he who detains the thing, or the participant in the thing, is bound to restitution: he is bound by title of the thing received, which is the greatest obligation of all, because the thing cries out for its owner; but if the thing now does not exist, he is judged the detainer who before the others had profit from it, or who, after he detained it in his own name, unjustly consumed it; - 2) the mandator, who is the principal cause comparatively to the executors; to whom the counselor is equated a) if he induced the other into invincible error, for example, the one mandating him; b) if the damage following from the counsel was useful to him, the counselor, and not to the executor; - 3) the executor, who is principal in the deed, and after the mandator has the chief parts; but if among several executors one is principal, who acts in his own name and mandates the others, he is bound before the rest, not so if he acts in the name of all the others; - 4) the other positive cooperators, among whom of themselves there is no order, because there is no principal cause, so that they are bound equally; unless they are per accidens subordinated among themselves, for example, one persuading one person to persuade another; - 5) finally negative cooperators, who of themselves are accustomed to influence less than the others; among whom nevertheless perhaps he is bound first who is more strictly obligated to avert the damage.

Thence the corollary follows: if the superior damagers restore, the inferior are liberated; but on the contrary, if the inferior restore, the superior are not liberated; thus:

a) If the principal cause has restored or has obtained condonation from the legitimate owner, all secondary causes are now bound to nothing; on the contrary if a secondary cause has restored or obtained condonation of his part, the principal cause is not therefore liberated, nor are the other secondary causes for their part.³

³ Yet see C. C., art. 1284 and 1285.

b) If one of the secondary causes has restored, the principal cause is bound to recompense him; and if this one fails, the other secondary causes are bound to compensate him according to the proportional part.

c) If one of the negative causes has restored, the positive cooperators according to order are bound to restore the whole to him; and if they fail, the other negative causes are bound to pay him their part.

When the detainer restores, the others are bound to nothing; when the mandator restores, the detainer must restore to him; when the principal executor restores, first the detainer, and in his default the mandator, must compensate the executor; when a secondary positive cooperator restores, first the detainer, then the mandator, third the principal executor, is bound to restore the whole, and in their default, the other positive cooperators for a proportional part; when a negative cooperator restores, the positive cooperators are to restore in the same order; but if these fail, the other negative ones, their part.

324. Principles. - 1. If the debtor can certainly satisfy all debts, no order is to be observed, provided that payment is made to each at the due time.

2. If he cannot pay all, but some must be without payment totally or partially, and therefore he makes a cession of goods, the order prescribed by law is to be observed, at least from the moment at which the cession is juridically declared:

a) Real debts are to be preferred to personal debts. Whence another's things: stolen, deposited, leased, lent, found, etc., if they still exist in themselves, must be restored whole to the owner, because the thing cries out for its owner, who has in it an absolute right in the thing; on the contrary, if the thing exists only in an equivalent.

b) Among personal debts, before all come privileged debts which from a special reason are to be preferred to the rest, for example, judicial and funeral expenses according to the condition of the deceased; the stipends of physicians and all expenses made in the last illness and the wages of servants (for a year); debts for food (for six months), and many others according to the order established by law.¹

¹ A thing sold, the price not having been paid, can be reclaimed within 8 days from delivery, and if it is not reclaimed, the price will be privileged (a. 2102; a. 20 § 5, Belgian law of 16 Dec. 1851).

c) Then come hypothecary debts, to which also there is given a right in the thing, but conditioned; they are to be paid according to the order of inscription, so that those come first which were inscribed first, which in our law is understood according to the day, in accordance with what is to be said in n. 609.

d) Afterward all merely chirographary and common debts, which are equal by law: in these, however, debts from an onerous title are to be paid before debts from a gratuitous title, if this can be done conveniently and without injury to a third party; likewise certain debts are to be preferred to uncertain debts; but not debts to the poor.

These things are to be understood thus: to those who come in the first place satisfaction must be made integrally before creditors of the following order receive anything; but to those who come in the same order, payment is to be made to each for a proportional part proportioned to the debt. Whence if payment is made in another order with notable damage to other creditors, restitution is owed to these who have been damaged.

3. Before a cession of goods has been made, another's things which cry out for their owner always excepted, per se no order is to be observed among creditors; nevertheless, privileged creditors, those prior in time, or those asking first, if they ask legitimately, can be preferred.

325. What things must be observed in conscience concerning the order of debts?

R. 1) After a cession of goods: the prescriptions of civil law, as determinative of the right of property, obligate in conscience even before the sentence of a judge.

2. Before cession, in many regions it is established by civil law that a payment made is invalid not only after the juridical declaration of cession, but also within a few days before this declaration, lest, namely, the debtor unjustly favor certain creditors before others. This also holds in conscience, at least after the sentence of a judge.

Thus according to the French and Belgian Code, payments made within ten days.

3. Outside the cases determined by law, a creditor who knows the debtor to be unequal to paying all can exact by legitimate means that which is owed to him: for laws profit the vigilant. Nor is the debtor prohibited from satisfying the creditor asking first, even if he foresees that others will suffer damage therefrom, provided that the fixed time at which the debt is to be paid is already present: for then the creditor has a strict right to the thing owed.

4. A debtor who, knowing himself to be unequal to paying all, without a just legal or moral cause offers to one an integral payment or a greater payment than that which the others equal in law will have, sins against charity, and more probably against justice, because he injures the right of the others that satisfaction be made to them at least for a proportional part. Besides, here there is not parity with the preceding case: a) because the creditor asking does not have to watch over the goods of the rest, but the debtor must watch that all his creditors receive the proportional part; b) if the matter is now public, the law ought not to favor some, because vigilance is now lacking.

For assigning the order of restitution in solidum among cooperators in damage to another, one must consider whether any one of them is the principal or primary cause of the damage; whether secondary or subordinate; whether, finally, collateral or equal. For cooperators can concur in damage either in the same mode or degree, or in a diverse mode. These things having been noted:

I say. If all have concurred in the same mode, each must equally restore in solidum conditionally, without any determined order, because none of them assumed greater danger. I said conditionally, that is, when the rest of the cooperators would not restore, or no one would pay in solidum. But if they concur in a diverse mode, you will again distinguish: for restitution must be made either from theft or from mere damage. If from theft, in the first place the possessor is held, who has the thing in individual form or in equivalent, or who unjustly consumed it; then the one mandating, or the robber if the one mandating is lacking; in the third place the rest of the positive cooperators are held; finally the negative cooperators. But if from damage, the one mandating is held first, when there was one; for he is the principal cause; secondly the executor, even when he acted in the name of some one mandating, because relatively to the others, according to the common opinion, he is the principal cause; then the rest of the positive cooperators; finally the negative cooperators. - Cf. St. Alphonsus, n. 580; and Hom. Ap., n. 60. - Vogler, n. 361.

You Will Resolve. - 1st. Secondary causes are held to nothing if the principal cause has restored or obtained remission of the debt; for secondary causes are held only in defect of the principal cause. - Cf. St. Alphonsus, n. 581.

2nd. If one of the less principal causes restores, the principal cause is held to make him indemnified, because the less principal cause acquires the right of the creditor against the principal. - Cf. St. Alphonsus, ibid.

3rd. If the creditor releases a secondary cause from the obligation, for that reason the principal cause is not freed, because the obligation of the principal cause is independent of the obligation of the secondary cause. Indeed, although the creditor remits to one of the secondary causes, for that reason the other secondary causes are not free from the obligation of restoring their part, unless the condonation was altogether full, or can deservedly be presumed such. - Cf. St. Alphonsus, ibid.