Positive Cooperators

480. Declarations. 1. The one commanding (ordering) is here understood as he who induces someone to inflict damage on another in his name.

a. It makes no difference whether the mandatary undertakes the business to be done gratuitously or for payment, provided he acts in the name of the one mandating. In the same way it makes no difference whether the one mandating is a superior of the mandatary, who by his authority enjoins on him the business to be done, or is equal to the mandatary: for to the nature of mandate only this belongs, that the mandatary act in the name of the one mandating.

b. The one mandating is the principal and primary cause of the damage; the mandatary or executor is its instrumental and secondary cause.

2. In order that a mandate induce the obligation of restitution, it must be the true cause of the damage inflicted; but it is the cause of the damage inflicted if it truly influences the will of the mandatary.

a. Therefore approval or ratification of the damaging action made after execution is not a mandate; but approval or ratification made before execution is equivalent to mandate if it influences the damage.

Therefore if someone manifests to you his plan of inflicting damage on another in your favor, and you do not contradict it, you are bound to repair it when you can contradict without difficulty, because by tacitly approving you are considered to have influenced the damage; but if someone, without your knowledge, inflicts damage on another in your favor, you are not bound to repair it.¹

b. A mandate can be given in diverse ways: alpha. by reason of the mandate, either by entering a contract, whether gratuitous or onerous, or without a contract: by command, prayers, approval; beta. by reason of the mode, expressly or tacitly, as if someone by some sign shows that it will be pleasing to him if damage is inflicted.

¹ Cf. Vogler, n. 283.

481. The obligations of the one mandating toward the damaged person are contained in this principle: the one mandating must repair all damages which the mandatary inflicted by force of the mandate; for of these he himself is the efficacious cause. By force of the mandate are considered to be inflicted not only those damages which are expressly contained in the mandate, but also those which in executing the mandate could be avoided only with difficulty.

1. Damages which the mandatary inflicted from invincible error, not likewise damages which he inflicted from vincible error (which he could morally have avoided), the one mandating is bound to repair, because the mandate efficaciously influences the former, but not the latter.

2. Damages which the mandatary inflicts by exceeding the limits of the mandate, the mandatary is bound to repair, because he alone is their cause. Nor, if the one mandating afterward ratifies them, does he therefore become their efficacious cause.

To what is the one mandating bound if he revoked the mandate?

a. If the revocation of the mandate became known to the mandatary before its execution and the mandatary nevertheless inflicts damage, he is bound to nothing: for through revocation the influence of the one mandating on the damage ceases.

b. If the revocation of the mandate from any inculpable cause did not become known to the mandatary, whether because the messenger could not reach him on account of the shortness of time, or because by chance he was not brought, he is bound to repair the damage: for in fact the mandate is the cause of the damage.

c. If the revocation of the mandate did not become known to the mandatary because a free cause culpably impeded this, the one impeding is bound to repair the damage: for he exists as its cause.

482. The obligations of the one mandating toward the mandatary are contained in this: the one mandating must repair the damages occurring to the mandatary in execution of the mandate, of which he himself is the efficacious and unjust cause.

1. If by force, fraud, or grave fear he drove the mandatary to executing the mandate, he is bound to repair all damages occurring to him in the execution which he foresaw in some way, at least confusedly: for of these he himself is the efficacious and unjust cause; unjust indeed, because by compelling the mandatary by force he inflicted an injury on him; efficacious, because damages foreseen in some way follow per se from the mandate. But he is not bound to repair damages which he could not foresee, because of these he is only the cause per accidens.

Hence if one ordered by grave threats to commit theft is condemned to prison, the one mandating is bound to repair the damage arising from this: for this effect, as one not improbably connected with the action, follows from the action per se. But if the one ordered to commit theft falls from a horse and breaks an arm, the one mandating is not bound to repair the damage arising from this: for this effect, as connected with the action only by a possible nexus, follows from the action per accidens.

2. If the mandatary spontaneously or hired for payment undertakes the mandate, the one mandating is not bound to repair the damages occurring to him in the execution, because he himself is their cause neither unjust nor efficacious: for no injury is inflicted by the one mandating on the mandatary who freely undertook the action; moreover he himself is the cause of all effects of his action, which he freely undertook.

Note. One ordering, insofar as he is distinguished from one mandating, differs from him in two ways: a. the one ordering is the superior of the mandatary and by his authority enjoins the action on him; b. the one ordering is bound to repair to the mandatary all damages which he suffered in execution of the mandate and which the one ordering probably could foresee.

483. Prenotanda. The one counseling is said to be he who by his persuasion moves another to inflict damage on the neighbor.

a. The one counseling differs from the one mandating in that the mandatary acts in the name of the one mandating, but the executor of the counsel acts not in the name of the one counseling, but in his own name and ordinarily for his own utility; wherefore the one counseling, with relation to the executor, is a secondary cause of the damage, while the executor of the counsel is the primary cause of the same. Yet if the one counseling gives counsel solely for his own advantage, he is equated to one mandating and is the primary cause of the damage.

b. It belongs to the nature of counsel that it move the will of the executor as a moral cause to the damage. Counsel can be given in diverse ways: by suggesting reasons and motives, by prayers, exhortations, promises, flatteries, by showing the way and mode, etc.

c. Counsel is either impulsive, if it moves and determines another to inflict damage, or doctrinal, if it says an opinion concerning the goodness or malice, validity or invalidity of an action, for example, of a contract. Impulsive counsel is bare if it does not rest on motives but consists in exhortation alone; or clothed, if motives determining to harm are added, or if means of harming are suggested.

d. The distinction between bare and clothed counsel must be noted: bare counsel loses the character of a cause and the force of influencing the will of another by retraction, and becomes merely the occasion of the damage; but clothed counsel continues to influence even if it has been retracted, unless it is destroyed by contrary motives equally efficacious.

484. Obligations of the one counseling as to the counsel itself. He who gave an iniquitous counsel, whether he acted in good faith or bad faith, is bound from justice to retract it: for everyone is bound from justice to bring it about that from his action, whether formally or materially evil, damage not follow for another.

But if he cannot turn the executor away from inflicting damage, he is bound to warn the one to be damaged so that he may guard himself, if he can warn him without too great inconvenience; and indeed from justice, if he gave impulsive and clothed counsel, because he must impede, as much as he can, lest damage follow from his unjust action; and from charity, if he gave bare counsel, because he must avert the evil of the neighbor of which he himself is the occasion.

a. He who gave counsel in good faith and cannot retract it, or, once the retraction has been made, nevertheless cannot impede the damage, is bound to nothing further: for he is not a theologically culpable cause of the damage. But if he culpably neglects retraction, he is held for the damages.

b. If he gave counsel in bad faith and retracted it, one must distinguish: alpha. if the counsel is doctrinal, or impulsive and bare, the one counseling is not bound to repair damages nevertheless inflicted by the executor; for the force of the counsel, and therefore the cause of the damage, is taken away by the revocation itself. beta. If the counsel is impulsive and clothed, again one must distinguish. If the one counseling, in retracting the counsel, does not apply contrary motives at least equally efficacious, he must repair the damages, because his counsel truly remains the efficacious and theologically culpable cause of the damage. But if in the retraction he applies contrary motives at least equally efficacious, he can be excused from the obligation of restoring: for he who does not yield to motives of this kind is proved to act from his own malice, not from another's counsel.¹ Which motives for drawing another back from damaging are more efficacious depends on the quality of the person; but ordinarily in a Christian man the most efficacious motives are those which are sought from faith.

c. He who shows the damager the mode of inflicting damage which could not have been inflicted without that counsel, for example, the mode of committing theft which otherwise could not have been committed, is not excused from restitution by retraction: for in this case retraction is not efficacious unless the damager is impeded from inflicting damage or the one to be damaged is warned concerning the damage which threatens him.

¹ Ballerini-Palmieri III, n. 362.

485. Obligations toward the damaged person. The one counseling is bound to repair all damages which have been inflicted by the executor by force of the counsel: for of these he himself is the efficacious moral cause.

a. The one counseling is bound to nothing if the executor, already determined to inflict damage, would have inflicted the damage equally without the counsel, except in the case in which the damager is moved to inflict damage not by his own motives but by the motives of the one counseling.

b. If it is doubtful whether the counsel had influence on the executor, he is likewise bound to nothing, because the damage inflicted by the counsel is not established.¹

c. If the counsel certainly influenced the executor, he is bound to repair the whole damage: for he is an efficacious concause of the damage.

d. If the one counseling persuades a greater evil than otherwise would have been inflicted, he is bound only for the excess, because of this alone he is the efficacious cause.

e. If the one counseling suggests to an executor already determined to inflict damage another mode of inflicting damage, he is bound to restitution insofar as that mode increases the damage.

f. To what the one counseling a lesser evil is bound will be said below (n. 487).

¹ St. Alphonsus (n. 562) calls this opinion sufficiently probable.

486. Obligations toward the executor. The one counseling is not bound to compensate damages which the executor suffered in executing the counsel: for no injury is done to one knowing and willing. Yet in a twofold case he is bound to restitution toward the executor:

a. If by deceit, fraud, or lies he was the author to another that he inflict damage: in this case he must repair the damage to each, both to him to whom he fraudulently gave counsel and to him to whom by force of the counsel damage was inflicted.

b. If he who must give counsel from justice gave harmful counsel. He must give counsel from justice who by force of state or office is bound to it, as advocate, physician, counselor, confessor, as will appear more clearly from the things to be said below (n. 488).

487. It is asked to what he is bound who induces another, already determined to inflict damage, to inflict a lesser damage.

a. If there is question of damage to be inflicted on the same person, he is bound to nothing: for he who persuades one who is determined to take away one hundred from the same person to take away only twenty, not only does not act against justice, but exercises a good work, since he persuades the diminution of evil, which is good.

b. If there is question of damage to be inflicted on a different person, as if someone persuades one determined to take away one hundred from Cantius that he should rather take twenty from Cantianus, authors disagree. It seems that one must say he is bound to repair the damage, except in the case in which the injured person must consent to the damage to be inflicted on himself, or in which a lesser damage is not counseled to be inflicted on a determined person, as if one wishing to steal from a church is told that he should rather take elsewhere.¹

Namely, this counsel is licit and does not induce the obligation of restitution insofar as the other must consent to damage to be inflicted on himself; now if he to whom the damage was going to be inflicted (Cantius) would have fallen into extreme necessity because of this, another (Cantianus) is bound, if not to aid him, at least not to impede him providing for himself, and therefore to consent to the damage.

¹ Cf. Lugo, disp. 19, n. 44 ss.; Ballerini-Palmieri III, n. 365.

488. On doctrinal counsel. 1. He who is deputed by force of office to give counsels and with evil intention or from gravely culpable ignorance gave harmful counsel, must repair damages which arise from the evil counsel both to the one seeking counsel and to a third person, because the one seeking counsel has a strict right of demanding that he who must give counsels from office have due knowledge and apply moral diligence.

2. He who by reason of office is not bound to give counsels is not bound to repair damages which arise from evil counsel to him who seeks and accepts the counsel, unless he deceitfully affects knowledge: for the one seeking counsel cannot be reasonably unwilling concerning the counsel nor concerning the damage arising from it. But he must repair damages which arise from evil counsel to a third person, provided the one counseling knew his own ignorance and foresaw, at least confusedly, the damage going to follow: for the one counseling concurs positively in inflicting the damage, and the injured person does not consent to the damage.

489. Notion. The one consenting is said to be he who by external approval, vote, or sentence influences the damage of the neighbor; of this kind can be a sworn judge who with others gives sentence, a deputy who with others by his vote establishes a law, an elector who with others elects someone to an office or benefice.

The one consenting who by his consent does not influence the damage can sin against charity or even against justice affectively, but not effectively.

490. Obligations as to the consent itself. a. He who culpably gave consent for inflicting damage is bound to revoke it; if he does this before the damage has been inflicted, he is bound to nothing; but if he either has not done this or could not do it, he is held for the damage.

b. If in good faith he gave consent for inflicting damage, once the error has been detected he is bound to revoke it; if he has done this or could not do it, he is bound to nothing.

491. Obligations toward the damaged person. 1. The one consenting is bound to repair the damages into which the consent efficaciously influences; but it certainly efficaciously influences those damages for the infliction of which the consent is necessary.

Whether he who gives an unjust vote which is not necessary is bound to restitution.

a. Those who by agreement (for example, among the members of some faction), or at the same time (for example, by rising), or secretly (for example, by secret ballots) give a vote, all are equally bound to restitution. The reason for the first is that, once a conspiracy has been entered, each influences the vote of the others and therefore the damage; the reason for the second is that no one gave his vote earlier and no one later, and therefore all and each place one morally unified action for producing the effect, which therefore is attributed equally to each; the reason for the third is that it is unknown who was earlier or later, and therefore the effect is attributed equally to each, since each placed an action efficacious of itself of the effect.

Yet if even in secret voting it could be established that the vote of someone certainly did not influence the damage, he would be excused from restitution just as in voting which is made openly.¹

b. If they give a vote openly and successively, certainly the first, whose vote is necessary, are bound to repair the damage, even if they foresee that others will not be lacking who would vote in the same way: for these truly and in fact influence the damage.

c. Those who vote when the number necessary for deciding the matter has certainly already been completed are (at least probably) bound to nothing, because they no longer influence the damage already inflicted by others.

This opinion is called probable because there are some who think that in fact all votes influence the effect, because the matter is not decided, that is, the sentence is not fully given, unless when all votes have been given.

2. He who gives an unjust vote which is the sole means for impeding a greater damage is not bound to repair the damage; indeed he acts licitly if the thing to which he consents by his vote is not intrinsically evil, and if it is publicly known that this is done only to forestall a greater evil.

¹ Cf. Ballerini-Palmieri III, n. 366, 5.

492. 1. A flatterer is said to be he who by praising or blaming moves another to inflict damage on the neighbor. He ordinarily has influence on the damage itself where the other would not have inflicted the damage without the flattery.

2. The obligations of the flatterer are the same as those of the one counseling: for he gives, as it were, clothed counsel, whose motives are generally taken from a false concept of worldly glory.

a. In order that the flatterer be bound to restitution, it is required that he advert that by his praises or reproaches he exists as a cause of the damage; but it is not required that he himself intend the damage.

b. It is clear that the flatterer is bound to restitution not only if he exists as cause of the damage, but also if by praise or blame he is the cause why the damage inflicted is not repaired.

493. 1. One receiving or furnishing recourse is said to be he who knowingly cooperates in the damage of the neighbor by furnishing security to the damager. This can happen in two ways: either by receiving another's thing or by protecting the author of the damage.

It belongs to the nature of one receiving that by his manner of acting he influence the will of the damager and determine it either to inflict damage again or to retain the thing taken away.

a. Therefore these are not receivers: alpha. those who receive criminals at home as friends and blood-relatives, or by reason of office as innkeepers, or to avert grave damage from themselves; beta. those who defend thieves or criminals in judgment in those things in which they themselves could defend themselves.

b. But these are receivers: alpha. innkeepers who receive thieves into lodging and conceal them lest they be captured; beta. tavern-keepers who accept from sons under family power money or other things secretly taken from their parents; gamma. parents who do not impede the thefts of sons and in this way add courage to them for repeating thefts.

2. The receiver is bound to repair damages of which he himself is the efficient cause; therefore if the one furnishing recourse brought it about that damage was inflicted or that the thing taken away was retained.

494. The participant is twofold: a. a participant in the prey is he who receives part of the thing unjustly taken away; b. a participant in the action is he who assists the principal damager in the unjust action itself.

1. The participant in the prey must restore that which he unjustly accepted: for he is an unjust possessor of another's thing; but he has no other obligation.

2. The participant in the action must repair the damages of which he himself is the efficacious and culpable cause. Which these are must be determined from the principles established concerning cooperation (n. 118 s.). Therefore if the cooperation is licit, no obligation of restitution arises from it.

Whether it is licit, in order to avoid one's own damage, immediately to cooperate in an action damaging to another, is said elsewhere (n. 118).

I. In order that positive cooperators be held to restitution of the damage that followed, it is required: 1° that the cooperation was an efficacious cause, whether physical or moral, of the damage; 2° that it was an unjust cause of the damage; 3° that it was theologically culpable.

II. He who cooperated in damage is obligated to restitution, even if, failing him, another would have cooperated (St. Alphonsus, III, 562, at the end). He who cooperated only in part of the damage is held to restitution in proportion to that part; and this you should also apply to him who brought it about that a greater damage was inflicted.

III. A moral cause, for example one commanding, counseling, etc., in the case in which the author of the damage was already prepared for inflicting the damage, is bound thus:

1. If he in no way moved the author of the damage, he is not bound to restore, because in truth he exercised no influence, or cannot be called the cause of the damage (St. Alphonsus, III, 561).

2. If he only confirmed the author of the damage in his purpose, he is sufficiently probably immune from restitution, because it is denied not without foundation that he was an efficacious cause of the damage (cf. St. Alphonsus, loc. cit.).

3. If he only brought it about that the damage was inflicted sooner or in another way, he is sufficiently probably exempted from restitution, because he did not influence the substance of the damage (St. Alphonsus, III, 563).

With these things noted generally, we pass on to the individual cooperators.

What of the flatterer? - A flatterer is said to be one who by praising, flattering, or blaming moves another to inflict damage. He who has induced another to inflict damage, by proposing praise, or otherwise the disgrace that will follow, is held for the damages. For such cooperation has the character of counsel, since, namely, motives for acting, of themselves commonly efficacious, are proposed. Wherefore the flatterer is subject to altogether the same obligations as one counseling. - Those who represent to a man affected by injury the greatness of this injury in such a way that, moved by it, he takes revenge, are held to restoring, provided they adverted at least probably that damage would follow. But he is not held to restitution who approves or ratifies a deed already perpetrated, unless he is the cause why restitution is not made, or new damages are inflicted. L. 567.; St. Thomas, 2. 2, q. 62, a. 7.; E. M.

What of recourse, or of one harboring, or providing refuge?

One harboring, namely he who knowingly and freely provides refuge and security to a robber, is held for the damages arising from this. For in this way he efficaciously and unjustly determines, or makes firmer, the will of the thief in the purpose either of stealing, or of not restoring, or of stealing again. In like manner merchants, and especially innkeepers, and all others who receive stolen things, the thefts of sons of the household, servants, etc., or conceal them, or even are accustomed to claim them for themselves in payment for merchandise, drinking bouts, etc., are held to restitution. - Among those harboring are not to be counted those who receive at home friends or blood relatives who are malefactors; nor those who conceal them under hope of amendment, or show them the way by which they can flee, when they are sought for prison or for death. L. 568.; St. Thomas, 2. 2, q. 62, a. 7.; C. A. 1314.

What of one participating? - A participant is twofold: one in the prey, another in the damaging action. One participating in the prey is held to restitution of the part which he received and keeps with himself. For he is a possessor in bad faith of another's thing. One participating in the damaging action, or concurring with another, whether immediately or proximately, in physically inflicting damage, is held to restitution. For immediate cooperation, e.g., carrying off money together with a thief, helping him, is cooperation in the damage itself. But proximate cooperation is that which already begins to injure, e.g., breaking open the door of a house with a thief, and therefore contains injury and brings in the obligation of restitution; namely, unless fear of a graver evil excuses. One participating in the damaging action only mediately or remotely is excused from restitution. For mediate and remote cooperation contains no injury, and is forbidden by charity alone. Nor is it forbidden even by charity if the act in itself is not intrinsically evil, and one furnishes it to avoid grave damage. If the one inflicting damage would certainly have inflicted it in the same way without another's cooperation, the cooperator is excused from restitution, because cooperation is not understood if superfluous work is furnished; for instance, holding a ladder for one climbing, who without such help would have climbed well enough by himself. L. 563.; Billuart diss. 8, art. 13.; St. Thomas, 2. 2, q. 62, a. 7.; L. 571.; C. A. 1313.

673. • One commanding or mandating is said to be he who induces another to act, so that he may inflict damage on another in his name.

The one commanding is held to repair every damage commanded and inflicted by force of the mandate; but otherwise if he only approves damage done in his own name ¹. The reason is that in the former case, but not in the latter, he efficaciously influences the damage. But for this it is required that he acted as a true master, or that through force, fear, or authority, he morally compelled the mandatary ².

¹ Mere approval of the deed pertains nothing to the account of mandate, and accordingly he who merely approves what has already been done neither ought nor can be called one mandating.

² The Author seems to have taken mandate for a certain moral compulsion or necessity of acting imposed on another. But this is far distant from the notion of mandate, which by jurists and theologians is commonly defined as a contract of good faith, consisting in consent, by which a business is committed gratis to another who undertakes it. Therefore nothing pertains here to whether the one mandating is the Superior of the mandatary, or by any other title has authority over the mandatary as over a subject. But in the definition the word gratis is added, which indeed does not reject an honorarium or salary, but only a wage strictly taken, which would transfer mandate into a contract of hiring; although in delicts mandate is commonly taken more broadly, so that it embraces even hiring, for example, of an assassin for killing a third party.

674. Questions. - Q. 1. Whether one mandating is held to restitution if he revoked the mandate before the damage was inflicted?

Resp. Negatively, if the revocation becomes known to the mandatary before the execution of the mandate; but otherwise if it becomes known not at all or too late, because in the former case he does not influence the damage, but certainly does in the latter. - Thus Vogler with several others.

Q. 2. Whether the one mandating is held concerning the damages which occur to the mandatary in the execution of the mandate?

Resp. Lacroix affirms with others, because the one mandating, by ordering the damage, is judged to undertake in himself the obligation of keeping the mandatary unharmed. But this seems to have to be restricted to the case in which the one mandating compelled another by force or fear. For otherwise the mandatary seems spontaneously to have undertaken in himself the whole burden and its consequences; and unless a pact concerning indemnity preceded, the one mandating will be held only from a certain equity.

Q. 3. Whether the one mandating is held to repair damage which the executor from invincible error brought upon another?

Resp. Negatively. Because the true cause of the damage is the error of the mandatary ³. - Thus Vogler, n. 279, and others commonly.

³ Nevertheless one must except if perchance it was too difficult to avoid the error. For although all agree that the one mandating is not held concerning damages which the mandatary inflicted beyond the mandate, yet they limit this if it was within the power of the mandatary to keep the limits of the mandate. Therefore also in the case in which it was not morally possible to avoid the error, the error must be imputed to the one mandating. By mandating something illicit, says Perez in Lib. 4, C. Tit. 35, n. 7, someone seems to have mandated all things which could probably accompany it. Hence in C. fin. de Homic. in 6, he who mandated a beating is pronounced irregular if the mandatary, exceeding the limits of the mandate, mutilates or kills.

Q. 4. Whether a Superior, holding damage ratified, is to be compared with one mandating?

Resp. Negatively, if the ratification follows the execution of the damage, because then it cannot influence the damage. But otherwise if it precedes the damage, or regards the proposal of inflicting damage, and truly influences it. - Vogler, etc.

675. Resolutions. - 1. The one mandating is held to nothing if he revoked the mandate in time, although the mandatary, in order to receive the promised payment, pretended that he had not received the revocation before the damage was inflicted.

2. If it is established that the revocation of the mandate was not heard or understood by the mandatary on account of deafness or distraction, the one mandating is held to restitution, because the effect follows by force of the prior mandate. The same reason has force if the one mandating sends letters revoking the mandate, and these are intercepted by some chance. - Lugo. - Vogler, n. 273, 277.

3. He who induces another by prayers only to inflict damage on the neighbor, for his own, that is, the inducer's, utility, is compared with one mandating, although he does not command the damage by authority ⁴, because he is principally acting in the moral order. For the executor is not judged to act except in his place, and accordingly the one inducing to damage is judged to assume in himself every burden of reparation. - See Casus, n. 657.

⁴ We have already adverted that the authority of the one mandating pertains nothing to the account of mandate; for mandate means a contract by which someone freely assumes the burden of managing another's business, not the office of a subject who obeys a superior or master.

But he who induces another by prayers ought to be counted among counselors rather than among those mandating; and he who yields to prayers acts in his own name, not in the name of the one asking, although for this latter's utility. Therefore among cooperators he will occupy not the primary but the secondary place in order to the burden of restoring.

676. Principles. - I. One counseling sins against justice whenever knowingly and willingly he furnishes an iniquitous counsel by which another is efficaciously induced to inflict damage unjustly, because the damage is imputable to him. This is clear also from proposition 39 condemned by Innocent XI, which lies thus: He who moves or induces another to inflict grave damage on a third person is not held to restitution of that damage inflicted.

II. One counseling who in good faith gave damaging counsel, when the truth has been known, is held to retract it, and indeed from justice. This follows from what was said above concerning him who inculpably placed the cause of damage, n. 662. - Vogler, etc.

III. But one counseling is not held to restitution if the executor, without that counsel, would have inflicted the damage equally well and in the same way, because then the counsel did not efficaciously influence the damage. - St. Lig., n. 561.

677. Questions. - Q. 1. Whether one counseling is held to restitution who revokes his counsel before the execution of the damage?

Resp. 1. Negatively, if the counsel was bare, that is, simple, because through revocation the whole force of the counsel is removed. - Thus commonly.

Resp. 2. If the counsel was clothed, or resting on motives, it is controverted. Probably also negatively, provided other motives, at least equally efficacious, have been applied in the retraction ¹. - Thus Azor, etc., against others, whose sentence St. Lig. says is the more probable. Except if you have shown to a thief determined to inflict damage the way of entering a house, which otherwise he would not have found, or something similar; because your cooperation was then truly efficacious, especially if you foresaw that the thief would not change his depraved proposal; unless, however, you warned him to whom the damage is imminent, to which in the case you are held, as the Doctors apud St. Alphonsus, n. 559, judge ².

¹ Reasons sought from faith are most especially efficacious by their own nature; if the other pays no regard to them, he turns the whole cause of the damage back upon himself. Besides, although St. Alphonsus says the opposite opinion is more probable, nevertheless he admits that this one is sufficiently probable; and since some others, such as Laymann, have called this same opinion very probable, and others even most probable, such as Roncaglia apud St. Alph., Lib. 3, n. 559, surely an obligation of restoring ought not and cannot be imposed, especially because he who inflicted the damage has the most certain burden of restoring, and thus the damaged person has been sufficiently provided for.

² St. Alphonsus alleges the Salmanticenses and Sporer, who nevertheless (Tr. 4, Cap. 3, Sect. 1, n. 22) limits it: if without equal or greater damage the counselor can warn the one to be damaged concerning the imminent damage.

Q. 2. Whether one counseling the lesser evil for averting the greater is held to restitution?

Resp. Negatively, if it is a matter of the same person, because the counsel favors him, far from harming him; but otherwise according to many, if it is a matter of another person concerning whom the damager was not thinking, because this person is reasonably judged deservedly unwilling. - St. Lig., n. 565. Yet others hold the contrary, led by a sufficiently probable reason ³.

³ The reason is, says Vasquez (Op. De Scand., art. 1, dub. 2, n. 14), that this kind of counsel tends formally to this, that the greater sin not be committed; from which it happens that he from whom the robber steals what is lesser is not reasonably unwilling concerning him who furnished the counsel. And Turrianus (De Fid., Spe, etc., Disp. 95, dub. 6): To me it is more probable that such counsel is licit when by no other reason could someone be drawn back from committing that greater sin, because to counsel a lesser sin in this case is not evil. Then he upon whom injury is inflicted is not reasonably unwilling with respect to the counselor, because he only advised a lesser theft so that the robber would not commit a greater sin; yet he would be unwilling with respect to the robber. This observation of Turrianus indeed is most wise, namely that he who suffers damage has a just cause of complaint not against the one counseling the lesser damage, but only against the robber. And surely charity demands that to one willing to perpetrate evil I advise the lesser; and likewise charity requires that I rather impede the damage of him who would suffer more than of him who would suffer less. Therefore this latter cannot be reasonably unwilling with respect to him who manages the matter according to the norm of the precept of charity.

678. • Q. 3. Whether one knowingly counseling evil to another is held also concerning the damages which this latter has suffered in executing the depraved counsel?

Resp. Negatively, of itself. The reason is that he brought no injury upon him, since no injury is done to one knowing and willing. - Otherwise, however, if the one counseling so circumvented the executor with frauds or sophisms that this latter did not advert to the iniquity of the counsel.

Q. 4. Whether one counseling only the manner of an unjust action is held to restitution?

Resp. Negatively, if the manner is merely accidental, as commonly are circumstances of time, place, or means. But otherwise, if the manner in some way redounds to the substance, for example, if it increases the damage, etc. - St. Lig., n. 563.

Q. 5. Whether he is held to restitution who persuades that damage be inflicted sooner?

Resp. Negatively, if he is certain that the other is determined to evil and will not change his depraved mind; otherwise in the other hypothesis. - St. Lig., n. 563, etc.

679. • Q. 6. Whether one counseling is held to restitution primarily or only secondarily?

Resp. Of himself he is held only secondarily, because the executor is principally acting, as one who is judged to act in his own name and for his own utility ⁴.

⁴ It does not seem to pertain to the matter whether the executor acts for his own utility or another's.

Q. 7. Whether or how one giving harmful doctrinal counsel from gravely culpable ignorance is held to restitution?

Resp. 1. If the one giving counsel does this from his state or office, for example, an advocate, physician, Confessor, etc., he is held to restitution for the unjust damage which follows from his counsel, whether toward the one seeking counsel, or toward him against whom it is given. The reason is that society has a right that he have the knowledge suitable to his office. - Thus commonly.

Resp. 2. If the one counseling is not such a person who by reason of his office or state makes a show of skill, 1. he is not held toward the one seeking counsel unless from deceitful counsel, or unless he affects great skill which he lacks; 2. nevertheless he is obligated toward a third person who suffers damage thence, if he himself knew his own lack of skill and foresaw at least in a confused way that damage would follow. - St. Lig., n. 564, and others commonly.

680. Resolutions. - 1. Women, common people, and others generally whose insufficiency is known, and who do not deceitfully affect skill, are held to restore nothing to those who sought counsel from them. Yet they are held toward others to whom damage has been inflicted from their counsel, if they sufficiently foresaw that damage; for they are guilty when, by giving rash counsels in those matters which they do not know, they expose themselves to the danger of injuring an innocent person unwillingly. - St. Lig., ibid.

2. If by persuasion or exhortation you were the cause that a greater damage was inflicted than otherwise would have been inflicted, you are held only for the excess of damage. Hence if you persuaded a thief prepared of himself to steal 100 gold pieces that he should steal 200, more probably you contract only the obligation of restoring 100.

3. If two together counsel theft to Peter, who, induced by their counsel, steals, each is held to restitution; for although Peter would have stolen even with only one of them counseling, nevertheless in fact each influenced by his counsel, and by that very fact each was the cause of the theft. - St. Lig., n. 561. - Lugo, D. 19, n. 2.

4. If a thief orders me to show him my treasure, and I show the treasure of another, I am held to restore, because I am the cause of the damage; for the thief does not have a determined will to steal the treasure of another. - St. Lig., n. 565. ⁵.

⁵ St. Alphonsus in this place, namely Lib. 3, n. 565, has nothing concerning a special case of this kind, but only touches the general question, whether to a man prepared to inflict a greater damage one can advise a lesser even against another; which question the Author also touched above, n. 677, Q. 2. Therefore if the whole force of this fourth resolution depends on the principles laid down there beforehand, the things said there concerning the general question must be brought back to this special case.

5. One counseling is not exempted from the obligation of repairing the damage which he counseled, if the executor whom he warned to restore does not restore, because he efficaciously cooperated in the damage; but efficacious cooperation necessarily exacts efficacious reparation. For the damaged person must be made wholly unharmed. - See Casus, n. 662 and 665.

681. Principles. - I. One consenting is held to restitution whenever knowingly and freely he emits a vote or sentence on which directly depends the violation of another's right, that is, whenever he gives efficacious consent to the damage or injury of the neighbor. I said, efficacious consent, because if the consent did not efficaciously influence the injury, he would not be held to restitution, since he consented affectively indeed, but not effectively, to the harm; and likewise if, fraud or a special pact being excluded, by his vote he impeded another from the attainment of a good to which he had no right.

II. He is not held concerning the damage who authentically revokes a sentence or vote previously given before the wickedness is consummated; nor one voting in good faith, although when the error has been detected he is held from charity, indeed from justice, to revoke his vote, if by time it is licit for him to do this.

682. Questions. - Q. 1. Whether one consenting, who gives an unjust vote, is held to restitution if other votes already sufficient for the damage are not lacking?

516. Nine are commonly enumerated, comprehended in these verses:

Command, counsel, consent, flatterer, refuge,

Participant, silent, not opposing, not revealing.

Of these the first six are called positive, because they concur by action in inflicting damage; the latter three are called negative, because they concur in it by omission of an action owed from justice. - Concerning each we shall explain whether and by what reason they are bound to restitution.²

² St. Thomas (l. c.) briefly contracts this as follows: "It must however be known that five of the preceding always oblige to restitution: first, command, because he who commands is the principal mover, whence he is principally bound to restore; second, consent, in that, namely, without which robbery cannot be done; third, refuge, when namely someone is a receiver of robbers and furnishes patronage to them; fourth, participation, when namely someone participates in the crime of robbery and in the booty; fifth, he is bound who does not oppose, when he is bound to oppose... But in the other enumerated cases someone is not always obliged to restore: for counsel, or flattery, or something of this kind, is not always the efficacious cause of the ruin. Hence only then is the counselor, or flatterer, that is, adulator, bound to restitution, when it can probably be estimated that the unjust taking followed from causes of this kind."

310. Principle I. Those cooperating are bound to restitution insofar as they efficaciously influence the damage, because the whole obligation of making restitution arises from an influence upon damage (C. Civ., a. 1382; C. Pen., a. 59-63, a. 73); and therefore they are bound to the reparation of every and only that damage of which at some time they were the unjust, efficacious, and culpable cause (prop. 39 condemned by Innocent XI; Rom. I, 32). Whence:

1. To induce the obligation of restitution, it is not necessary that the act of cooperation be a condition sine qua non of the existence of the damage, so that, if the cooperation had been lacking, the damage would not have existed, but it suffices if the action of cooperating has an influence upon the effect produced. Therefore, from the fact that even without some cooperation the damage would have been inflicted by the executor, it does not follow that the cooperator is exempted from the obligation of making restitution.

Hence a) if two agree in cooperating, they are bound to restitution, even if with one alone acting the injustice would have been or would not have been committed;

b) a cooperator who in reality influences the injustice is not excused from the obligation of making restitution from the fact that, if he were lacking, others would have been cooperators.

2. On the contrary, a cooperator is not bound to restitution if in fact he does not influence the damage, although of itself his action was apt to produce this influence, for example, if he to whom he gave counsel of stealing was in no way moved by that counsel, since he was already determined to act by himself or by others: for then the counsel stands merely concomitantly; and although the one giving that counsel sinned against justice, nevertheless he inflicted no damage nor in fact cooperated in the damage, and therefore he is not bound to make restitution for anything.

From these things it follows: a) if one cooperating moves only to the mode of injustice, he is not bound to make restitution unless from this modality a new damage arises; in which case he is bound only for the excess of damage;

b) if someone by his vote concurs in damage to be unjustly inflicted, he is not bound to make restitution if his vote accedes to damage already caused by others, but he would be bound if sufficient votes of the others had not preceded.

3. He who by his cooperation contributes a concurrence not to the whole damage but to only part of the damage, by partiality of effect, is bound to restore only that part.

Thus he who, while others are already robbing or setting a house on fire, also steals something or sets another part on fire.

759. • One commanding or mandating is called he who induces another, whether by explicit or implicit command (for example by silence, which is equivalent to consent), as one set over him; or by force, threats, or prayers; or by express or tacit contract, to inflict damage in his name, that is, for his utility or favor (and thus he is distinguished from one counseling), upon another.

One commanding is bound to repair every damage commanded and inflicted by force of the mandate; otherwise, however, if he only ratifies damage already done. The reason is that in the former case, but not in the latter, he efficaciously influences the damage.

760. Questions. - Query 1° Is one mandating bound to restitution if he revoked the mandate before the damage was inflicted?

Resp. Negatively, if the revocation becomes known to the mandatary before execution of the mandate; otherwise, if for any cause whatever it does not become known at all or becomes known too late; because in this case, but not in that one, he influences the damage (n. 750. q. 4°).

Query 2° Is one mandating bound concerning damages which come to the mandatary in the execution of the mandate?

Resp. Affirmatively, if the one mandating compelled the other by fraud, force, or unjust fear, or if an agreement concerning indemnity preceded; but not even in this case is he bound concerning damages coming to the mandatary by his own fault or by accident (which no one furnishes), unless he also promised to furnish against accident. Otherwise, negatively.

Query 3° Is one mandating bound to repair damage which the executor from invincible error inflicted upon another?

Resp. Negatively, provided the error does not almost follow spontaneously from the mandate itself because of the difficulty of the thing commanded (Mar. p. 280. n. 86). The reason is that the true cause of the damage is the error of the mandatary, not the mandate.

761. • Query 4° Whether and when must one mandating also warn him whom he commanded to be harmed?

Resp. Negatively, at least from justice, if he has already efficaciously revoked the mandate. Otherwise affirmatively, provided a much greater inconvenience, for example danger to reputation or liberty, does not threaten him from the warning. For what removes the obligation of repairing damage also removes the obligation of guarding against it. But the obligation of furnishing for damage inflicted is to be fulfilled as soon as it can be. Mar. p. 279. n. 84.

One counseling is called he who by counsel, prayers, promises, suggestion of a motive, or showing of the way or means of harming has induced another to inflict damage.

762. Principles. - I. One counseling sins against justice as often as knowingly and willingly he furnishes unjust counsel by which another is efficaciously induced to inflict damage unjustly; because the damage is imputed also to him. It is established also from proposition 39 condemned by Innocent XI, p. XVI.

II. One counseling who in good faith gave damaging counsel, when the truth is known, is bound to retract it, and indeed from justice, whenever without equal damage to himself he can retract. This is clear from what was said n. 749. q. 3°.

III. But one counseling is not bound to restitution if the executor would, without that counsel, just as well and in the same way have inflicted the damage; because then the counsel did not efficaciously influence the damage. Otherwise, however, if the executor was moved at the same time by the counsel of the other, although the damage would have happened even without this counsel; for in fact he would truly be an efficacious concause.¹

763. Questions. - Query 1° Is one counseling bound to restitution who revokes his counsel before the execution of the damage?

Resp. 1° Negatively, if the counsel was naked, that is, simple, because through revocation the whole force of the counsel is taken away. - Thus commonly.

Resp. 2° If the counsel was clothed, or founded upon motives, it is controverted. According to S. Alph.², sufficiently probably also negatively, provided that in the retraction other motives have been employed, at least equally efficacious, for example of eternal salvation, against others, whose opinion he calls indeed more probable, yet not far more probable. Except if you showed to a thief determined to inflict damage the way of entering the house, which otherwise he would not have found, or something similar; because your cooperation then was truly efficacious, especially if you foresaw³ that the thief was not going to change his depraved purpose, unless nevertheless you warned him to whom damage threatens, to which in the case you are bound.³

Query 2° Is one counseling a lesser evil in order to avert a greater evil bound to restitution?

Resp. Negatively, if it is a question of the same person, because the counsel favors him; otherwise, however, if it is a question of another to whom otherwise damage would not have been inflicted. For this latter, outside the case in which he is bound from charity to undergo this damage (n. 279. 305. q. 1°), is judged reasonably unwilling.

764. • Query 3° Is one counseling evil to another who notices it bound also concerning the damages which this man has suffered by executing the depraved counsel?

Resp. Negatively, of itself. The reason is that he inflicted no injury upon him, since no injury is done to one knowing and willing. - It is otherwise, however, if the one counseling has so circumvented the executor with frauds or sophisms that this man did not notice the iniquity of the counsel.

Query 4° Is one counseling only the mode of an unjust action bound to restitution?

Resp. Negatively, if the mode is merely accidental, as are commonly the circumstances of time, place, and means. Otherwise, however, if the mode in some way redounds into the substance, for example if it increases the damage, etc.¹

Query 5° Is one persuading that damage be inflicted more quickly bound to restitution?

Resp. Negatively, if he is certain that the other is determined to evil and that he is not going to change his depraved mind; otherwise in the other hypothesis.²

765. • Query 6° Is one counseling bound to restitution primarily or only secondarily?

Resp. Of itself, he is bound only secondarily, because the executor is principally acting, as being one who is judged to act in his own name and for his own utility. But if the counsel is useful to the one counseling, this man will be bound primarily; otherwise if it is useful to the executor alone. But if it is useful to each, or if from the damage inflicted useful advantage came to neither, each will be bound according to proportion and in solidum.³

Query 7° Is one giving harmful DOCTRINAL counsel (or not only impulsive counsel) from gravely culpable ignorance bound to restitution, and how?

Resp. 1° If the one giving counsel does this from his state or office, for example an advocate, physician, confessor, etc., he is bound to restitution concerning the unjust damage which follows from his counsel, whether toward the one seeking counsel or toward him against whom it is given. The reason is that from a tacit contract the consulter has a strict right to the due knowledge and diligence of that man.

Resp. 2° If the one counseling is not such a person as by reason of his office or state professes skill, 1° he is not bound toward the one seeking counsel, unless from deceitful counsel, or unless he affects great skill which he lacks. 2° Nevertheless he is obligated toward a third person who suffers damage from this, if he himself knew his own lack of skill and foresaw, at least in confused manner, the damage to follow.⁴

766. Resolutions. - 1° Women, common people, and others generally, whose insufficiency is known, if they do not deceitfully affect skill, are bound to restore nothing to those who have sought counsel from them. Nevertheless they are bound toward others to whom damage has been inflicted from their counsel, if they sufficiently foresaw that damage; for they are guilty, when by giving rash counsels in those things which they do not know, they expose themselves to danger of injuring an unwilling innocent person.¹ - But what if someone through, for example, newspapers, or otherwise publicly, affects great skill in healing some disease, or attributes to some medicine, otherwise harmless, an almost extraordinary or more general power than it has? From custom those sayings do not obtain full faith, nor will he be guilty of injustice, unless he either lacks ordinary knowledge, or omits ordinary diligence, or because of falsely thought knowledge exacts a salary, or because of medicine not extraordinary exacts a price above the common one.

2° If by persuasion or exhortation you have been the cause that greater damage be inflicted than otherwise would have been inflicted, you are bound only concerning the excess of damage. Hence if to a thief separately determined of himself to steal $100 you persuaded him to steal 200, more probably you contract only the obligation of restoring 100.

3° If two together counsel theft to Peter, who, induced by their counsel, steals, each is bound to restitution; for although Peter would have stolen even if only one of them had counseled, nevertheless in fact each by his own counsel influenced it, and by that very fact each was the cause of the theft. - S. Alph.,² Lugo.³

4° Physicians, pleaders, confessors, and the rest who from office are counselors, only moderately learned, who in a difficult matter give counsel by which another is harmed, are bound to restore, even if they are not ignorant that they are unequal to solving, treating, etc. the more difficult cases. Likewise, even if they are equal to their office, if they treat difficult matters without a mature examination having been premised according to the gravity of the thing, provided that at least in confused manner they attended to the obligation of investigating the matter more thoroughly and to the damage that would arise from their negligence; because all these harm others by culpable ignorance.⁴

767. Principles. - I. One consenting is bound to restitution whenever knowingly and freely he either gives consent or carries a vote, by which he efficaciously influences the damage of another. I say: influences; because one who, seeing damage done or hearing that it has been done, only approves it, without moving another to harming, sins only internally against justice. I say: efficaciously; because if he did not efficaciously influence the injury, he would not be bound to restitution. Resolve the same if, fraud or special agreement being set aside, by his vote he impeded another from the obtaining of a good to which he had no right.

II. He is not bound concerning the damage who authentically revokes a sentence or vote previously given before the wickedness is consummated; nor one voting in good faith, although, as was said above n. 749. q. 3°, when the error is detected he is bound from justice to revoke his vote, if time permits him this and he can do it without grave inconvenience.

768. Questions. - Query 1° Is one consenting bound to restitution who gives an unjust vote if other votes already sufficient for the damage are not lacking?

Resp. 1° It is certain that all consenting are equally bound to restitution if they gave votes by agreement, since, after conspiracy has been entered into, there is one moral action of all. Likewise if they are carried secretly.

Resp. 2° It is also certain that all consenting contract the obligation of restoring when they carried the vote at the same time; because, since none was then earlier or later, the sentence resulting from the sum of the votes is deservedly attributed to the individual voters.

Resp. 3° It is likewise certain that those are not excused from restitution who first give a vote before the number has been completed, even if they foresee that others who consent will not be lacking, because they truly influence the damage. For although without them it was to be inflicted, nevertheless through them it is in fact partially inflicted. - Thus commonly. - Lugo.¹

Resp. 4° But whether, conspiracy and simultaneous collection of votes being set aside, the last voters can be excused from the obligation of restoring when the number of votes required for the definition of the business has already been fulfilled, is controverted. S. Alph.,² Lugo,³ and several others affirm, because voters of this kind are in no way the cause of the damage, since it had already been sufficiently prepared and determined by others. - I say: "for the definition of the business." For it would be otherwise if the vote were consultative, or (because by it the number of votes is increased) if it were foreseen to influence the sanctioning of an unjust thing which otherwise would be prohibited. (p) p. 475.

769. • Query 2° In doubt whether your vote was among the earlier and necessary ones for inflicting the damage, are you bound to restitution?

Resp. The true opinion, according to S. Alph.,¹ teaches that anyone is bound according to proportion; and when the others do not restore, that you are bound to the whole. The reason of the former is clear of itself. The reason of the latter is that by your vote at least you made worse the right which the injured party had of recovering from the other voters the damage inflicted. The case would be if the votes had been cast secretly.

Query 3° Do you contract the obligation of restoring if you do not cast a vote when you can cast it?

Resp. 1° Negatively, if the right of giving the vote was conceded to you for your mere favor or grace; because then you inflict no injury upon another.

Resp. 2° Affirmatively, if it would have to be given from office, and its omission was the efficacious cause of grave and unjust damage. - Lugo and others commonly. (l) p. 482.

770. • A flatterer is called one who by praising, flattering, whispering, censuring, or exaggerating injury moves another to causing damage. Concerning the flatterer these things must be held:

1° He who has induced another to inflict damage by proposing praise or otherwise ignominy to follow is bound concerning the damages. For such cooperation has the character of counsel, namely when motives for acting, of themselves commonly efficacious, are proposed. Wherefore the flatterer is subject to altogether the same obligations as one counseling, concerning which see above n. 762 and following.

2° Those who so represent to a man affected by injury the magnitude of this injury that he, being moved, takes revenge, are bound to restore, provided they noticed at least that damage would probably follow.

3° But he is not bound to restitution who approves or ratifies a deed already perpetrated, unless he is the cause why restitution is not made, or new damages are inflicted.²

104. Consent is sometimes taken for the approval of some deed. Thus, e.g., an irreligious man, hearing that iniquitous laws have been passed against the Church, exclaims: This has been done well. I plainly consent. Such consent of itself in no way flows into the damage inflicted; nevertheless per accidens it can cause unjust damaging, because iniquitous legislators, seeing the consent of the people, are made more courageous in establishing wicked laws and do not revoke iniquitous laws already passed. In the present place we speak of consent which of itself damages; and then the one consenting is said to be he who by his external approval, vote, or sentence truly and efficaciously cooperates in damage to the neighbor, e.g., a juror,⁴⁹ who with others issues an unjust sentence; a deputy who by his vote with others establishes an iniquitous law (e.g., concerning ecclesiastical goods to be seized); an elector who with others chooses someone unworthy for an office or benefice.

Here again the general principle announced above must be applied, namely, the one consenting is bound to reparation of the damage if he has truly, efficaciously, and formally cooperated by his consent in the damage. From this principle the following corollaries flow:

⁴⁹ Commonly, der Geschworene, le juré.

106. A flatterer or adulator is said to be he who, by praising, blaming, flattering, moves another to damaging.

Thus, e.g., he is a flatterer who mocks the patience of the injured person; who exaggerates the injury inflicted, saying repeatedly that things of this kind are not to be borne by a noble man; who describes the vileness of the offender, etc., and does all these things to instigate another to revenge. Likewise he is a flatterer who proclaims the utility of theft or damaging. Therefore he who by these or similar modes truly, efficaciously, and formally moves another to unjust damaging is bound to restitution. Nor is it necessary that he directly intend the damage; it is enough that he indirectly wills it, foreseeing that it will follow from his flattery. The things said above concerning the one counseling hold also concerning the flatterer, since he is nothing other than one counseling in a particular mode, namely by flattering, etc.; hence the flatterer is subject to the same obligations as the counselor, provided nevertheless that he truly flowed efficaciously into the damage of another.

Sometimes he who approves or praises an unjust work done is called a flatterer. It is plain that approval of this kind does not induce the obligation of repairing damage, unless nevertheless from it the damager was induced to new injuries or was instigated not to repair the injury already done.

107. The one providing recourse, or receiving, is he who provides refuge to an evildoer or thief as such,⁵¹ either a) so that he may escape safely from those pursuing, or b) so that he may be able to deposit stolen goods. I have said as such, because if he receives and favors him not as a thief or evildoer, but as a friend, or kinsman, or one worthy of mercy, he is not a receiver or one providing recourse. By deserved right receivers of evildoers of this kind are punished gravely by civil law; for they often cause greater damage than the evildoers or thieves themselves.⁵² But in the forum of conscience receivers are held to repairing damages, insofar as a) they render evildoers more secure for doing injuries, and b) they are the cause why the goods taken away are not restored. Receivers of this kind are especially several so-called "dealers in antiquities"⁵³ and dealers in old things,⁵⁴ who knowingly buy from servants, sons of families, and other men things taken away by theft. As to the mode of restitution, these receivers are to be treated like possessors in bad faith, or sometimes (if the thing bought is not certainly taken away by theft) like possessors in doubtful faith.⁵⁵

The one providing recourse not rarely also participates in the thing unjustly taken away. But then he is held to restitution not only as one providing recourse, but also as one participating in the prey; concerning this there will immediately be discussion.

⁵¹ Commonly Hehler, receleur, receiver of stolen goods.

⁵² Hence the common adage: "Without a receiver, no thief!" "If there were no receiver, there would be no thief."

⁵³ Altertumshändler, antiquaire.

⁵⁴ Althändler, Trödler, brocanteur.

⁵⁵ Cf. below n. 216 sqq.

108. The participant is twofold: a) a participant in the prey, who receives part of a thing unjustly taken away; b) a participant in the action, who helps another damager in an unjust action, e.g., by providing tools to a thief, by keeping watch, etc.

a) The participant in the prey ought to restore all those things which he himself received from the thief, unjustly taken away. Therefore he is to be treated as a possessor in bad, doubtful, or good faith.⁵⁶

b) The participant in an unjust action ought to repair the damages of which his own action is the efficacious and culpable cause. But it is altogether required that theological fault have been present; otherwise the obligation of restitution does not arise, and this especially if the cooperation was only material.⁵⁷ For the participant is excused from reparation of the damage caused, provided that the required conditions are present, namely 1. that the act not be intrinsically evil; 2. that it be elicited from a relatively grave cause; 3. that the good effect intended by the cooperator arise immediately from a good or at least indifferent cause.

In practice the quantity of reparation to be made is often determined with difficulty. Let this be the general rule: if the cooperation was so necessary that without it the damaging action would have been impossible, then the cooperator is held to repair the whole damage (in solidum).⁵⁸ But if even without the cooperation the damage would have been caused, the cooperator is held to repairing only a part of the damage, and indeed according to the quantity of influence.

Authors are accustomed here to raise the question whether those are excused from fault and restitution who, on account of fear of grave detriment, cooperate in an unjust damaging action. The solution of this question cannot be given otherwise than by recurring to the principles concerning the indirect voluntary. But difficulty exists in the right application of those principles. Authors teach rather commonly: 1. that it is never lawful immediately and positively to cooperate in the unjust killing of another; 2. that it is never lawful immediately to cooperate in the unjust grave wounding of another. But if it is a question of damaging in goods of fortune, then authors do not agree. All indeed concede that remote cooperation in damaging is licit, provided that a proportionately grave cause is present. Thus, e.g., on account of fear of death or of another very grave evil, it is lawful to hold a ladder for a thief climbing up, to hand over to him the keys for opening a chest, to carry away prey already taken, and similar things.⁵⁹ Billuart⁶⁰ and the Salmanticenses⁶¹ teach that proximate cooperation in unjust damaging is illicit and intrinsically evil; on the other hand, St. Antoninus,⁶² Sporer,⁶³ St. Alphonsus,⁶⁴ Lehmkuhl,⁶⁵ and several others teach that from a very grave cause, e.g., fear of death, it is licit, and indeed rightly. For the taking away or damaging of another's thing is not unjust except insofar as the owner is reasonably unwilling. But the owner is not reasonably unwilling if I, placed in very grave necessity, cause him damage in fortune, especially if I have the intention of repairing this damage according to my powers.⁶⁶ Cf. the things said above, n. 87, concerning great goods of another to be taken away in extreme necessity.

⁵⁶ Cf. below n. 209 sqq.

⁵⁷ Cf. the things said above (I, n. 52 and 618) concerning the indirect voluntary and cooperation.

⁵⁸ What restitution in solidum is, cf. below n. 223.

⁵⁹ Cf. Billuart, De iure et iust. diss. 8, a. 13, § 6, dico 2.

⁶⁰ L. c. dico 1.

⁶¹ Curs. Theol. mor. tr. 21 de praec. decal. c. 8, n. 75, where the opposite opinion previously exhibited is revoked.

⁶² Summ. theol. P. 2, tit. 1, c. 12.

⁶³ De iust. tr. 4, c. 3, n. 41 and 42.

⁶⁴ Theol. mor. l. 3, n. 571.

⁶⁵ Theol. mor. I, n. 1205.

⁶⁶ Cf. St. Alphonsus, Theol. mor. l. 3, n. 571.

§ II

The individual modes are expounded.

COMMANDING

One commanding or mandating is called he who, on account of his own advantage or in favor of himself, moves another by command, prayers, or other means to inflicting damage on someone. It is said on account of his own advantage, because in this the one mandating differs from the one counseling; for where there is a mandate, the executor acts in the name and in favor of the one mandating, but where there is counsel, he acts in his own name and in favor of himself or of some other third party. Hence it is not necessary that the one mandating be the superior of the mandatary. - Cf. Carrière, vol. 3, n. 1168. - Ballerini, note (b), p. 573.

I say. The one mandating is held to repairing every damage which is inflicted by force of the mandate, because he himself is the principal cause, morally indeed but efficaciously, moving another to harm; and since otherwise he is supposed formally unjust, it follows that all the conditions of unjust damaging are verified in him.

You Will Resolve. - 1st. The one mandating is not held to restitution if he revoked the mandate before the damage was inflicted and the revocation became known to the mandatary before execution of the mandate; because then he does not flow into the damage.

2nd. But if the one mandating did not revoke the mandate, even if he retracted the depraved will, or indeed revoked it, but not in time, or finally if it is clear that the revocation made in time was not heard or understood by the mandatary on account of deafness or distraction, he will be held to restitution, because the damage follows by force of the prior mandate.

I say. Whoever has given unjust counsel to another is held to retract it, whether knowingly and willingly he offered it or in good faith; otherwise he will be held to repairing all damages which will follow by force of his counsel. The reason for the first is that, when unjust counsel has been given, its retraction is the only way of repairing injured justice. But the reason for the second is that damages which follow by force of the counsel must be imputed to the one counseling as to the true and efficacious cause.

You Will Resolve. - 1st. The one counseling is not held to restitution if the executor would equally well and in the same way have inflicted the damage without the counsel given, because then the damage is not the effect of the counsel. Cf. St. Alphonsus, n. 561.

2nd. Nor is he held to restitution if he fully revoked the counsel before execution, whether the counsel was bare or clothed, or supported by motives. Nevertheless in this last case it is necessary that in the retraction he apply other motives at least equally efficacious. Cf. St. Alphonsus, n. 559.

3rd. If two at the same time counsel theft to someone who, induced by their counsel, steals, each is held to restitution; for although, even with only one counseling, the theft would have been perpetrated, nevertheless in fact each by his own counsel exerted influence, and by that very fact each was the cause of the theft. - Cf. St. Alphonsus, n. 561. - Lugo, disp. 19, n. 2.

4th. Although the one counseling is held to restitution only secondarily, because the executor is held primarily, since he acts in his own name, nevertheless he is not exempted from the obligation of repairing the damage which he counseled, if the executor, whom he warned to restore, does not restore. The reason is that he efficaciously cooperated in the damage; but efficacious cooperation necessarily requires efficacious reparation.

Question. Whether, or in what manner, one giving harmful doctrinal counsel from gravely culpable ignorance is held to restitution?

Resp. If the one giving counsel does this from his state or office, for example, an advocate, physician, confessor, etc., he is held to restitution for the unjust damage which follows from his counsel, whether toward the one seeking counsel or toward him against whom it is given. The reason is that society has the right that he have knowledge suited to his office. But if the one counseling is not such a person, who by reason of his office or state professes skill, 1st, he is not held toward the one seeking counsel, unless he acts from deceitful counsel, or unless he affects great skill which he lacks; 2nd, nevertheless he is obligated toward a third person, who suffers damage from it, if he himself knew his own lack of skill and foresaw at least confusedly that damage would follow. - Cf. St. Alphonsus, n. 564.

I say. The one consenting is held to restitution as often as knowingly and freely he issues a vote or sentence, upon which the violation of another's strict right directly depends, that is, as often as he gives efficacious consent to the damage or injury of the neighbor. The reason is that then he himself is the true, efficacious, and unjust cause of another's damage.

You Will Resolve. - 1st. He is not held to restitution who by his vote impedes another from obtaining a good to which he had no right, yet with fraud or special pact excluded; because in this case, but not in the other, a strict right would be violated.

2nd. He is not held for damage who authentically revokes a vote previously given, before the wickedness is consummated; nor the one voting in good faith, although this latter, when the error has been detected, is held from justice to revoke his vote. The reason is that the former does not exert influence efficaciously and the latter does not exert influence unjustly.

3rd. He is held for damage who abstains from casting a vote which from office would have to be given, and whose omission would be the efficacious cause of unjust damage; but not he who abstains from giving a vote from mere benevolence and concerning a thing not owed to another.

Question. Whether the one consenting, who gives an unjust vote, is held to restitution if there are not lacking other votes already sufficient for the damage?

Resp. It is certain, 1st, that all those consenting are equally held to restitution if by agreement they gave votes; since, when a conspiracy has been entered upon, there is one moral action of all. - It is certain, 2nd, that all those consenting contract the obligation of restoring when they have cast the vote at the same time; because, since no one then was prior or posterior, the sentence resulting from the sum of the votes is deservedly attributed to each of those voting. It is certain, 3rd, that those are not to be excused from restitution who first give a vote before the number is completed, even if they foresee that others who consent will not be lacking, because they truly exert influence on the damage; for although without them it would have been inflicted, nevertheless through them it is partially inflicted in fact.

But whether, conspiracy and simultaneous casting of votes being excluded, the last voters can be excused from the obligation of restoring when the number of votes required for the determination of the matter has already been completed, is controverted. Several grave theologians affirm, because voters of this sort are in no way the cause of the damage, since it was already sufficiently prepared and determined by others. Others deny, because since a sentence is never judged perfect unless it is concluded through the casting of all votes, the last no less than the first exert influence on the unjust sentence. - Cf. St. Alphonsus, n. 566. - Lugo, disp. 19, n. 17. - Vogler, n. 302.

A flatterer is called one who by praising, flattering, or blaming moves another to damaging. Concerning the flatterer these things are to be held:

1st. He who induced another to inflicting damage by proposing praise, or otherwise disgrace, that would follow, is held for the damages. For such cooperation has itself in the manner of counsel, since motives for acting commonly efficacious of themselves are proposed.

2nd. Those who so represent to a man affected by injury the magnitude of this injury that, moved by it, he takes vengeance, are held to restoring, provided they adverted at least probably that damage would follow.

3rd. But he is not held to restitution who approves or ratifies a crime already perpetrated, unless he is the cause why restitution is not made or new damages are inflicted. - Cf. St. Alphonsus, n. 567.

A receiver, or one providing refuge, is he who knowingly and freely provides security to a robber or another damager. Concerning him these things must be established:

1st. One receiving is held for damages coming from his manner of acting. For one providing security efficaciously and unjustly determines the will of the thief, or makes it firmer, in the purpose either of stealing or of not restoring or of stealing again.

2nd. Likewise merchants and especially innkeepers are held to restitution who accept stolen goods of sons of families, servants, etc., or hide them, or even claim them for themselves as the price of merchandise, drinking-bouts, etc.

3rd. Among those receiving are not to be reckoned those who receive at home friends or blood-relatives who are evildoers; nor those who hide them under hope of amendment, or show them the way by which they can flee, when they are sought for prison or for death. Cf. St. Alphonsus, n. 568.

A participant is twofold: one in the booty, another in the damaging action.

I say. A participant in the booty is held to restoring only that part which he accepted and retains in his possession, because only as to that is he compared to the thief. But a participant in the damaging action is held for the whole as often as his cooperation truly exerted influence on the substance of the damage and cannot be excused from formal sin; because then his action will be truly, efficaciously, and unjustly damaging. Cf. St. Alphonsus, n. 571. - Billuart, dissert. 8, art. 13. - Carrière, n. 1197.

You Will Resolve. - 1st. He is not held to restitution who from so grave a fear cooperates with respect to damage in the goods of fortune, whether the cooperation is mediate or immediate, so that the damage inflicted upon the neighbor is much less than that which threatens you and of such a nature that the neighbor must then be judged not to be reasonably unwilling. - I said with respect to damage in the goods of fortune, because as to the goods of life, the owner must always necessarily be unwilling. Cf. St. Alphonsus, n. 571.

2nd. Merchants who sell weapons indiscriminately are not held to restitution, even if they know that some in general will abuse them; because since the necessity of carrying on trade excuses them from sin, necessarily it also excuses them from the obligation of restoring. But if they foresee specifically that some are proximately about to abuse the aforesaid weapons, they cannot sell them on account of ordinary gain, but a grave cause is required, according as the hope of preventing the abuse is greater or less. Cf. Vogler, n. 315.

XIV. Consent bringing in the debt of restitution is not a mere complacency in another's evil; but it is a cause efficaciously flowing into the evil to be made good. You subscribe to an unjust suit, you give your vote for an unjust war, for a theft, for a homicide to be perpetrated, for an unworthy master to be elected: you are subject to restitution of the loss that followed — when nevertheless your vote is necessary for the passing of the sentence, for the election of the unworthy man, and so forth. For if without your vote the sentence, the election, and the like was already concluded, then your vote does not flow into the effect: therefore you are free from restitution, but not from sin. If nevertheless you should give your vote first, although you foresaw that all the rest would give their votes, then you would be liable to restitution, because in truth your vote flowed into the evil. Wherefore in practice scarcely anyone is free who subscribes to an unjust sentence, or who gives his vote for an unworthy man, from restitution: because it can rarely be established whether the votes of the rest are antecedent or subsequent. Wherefore let each beware of this danger.

XVI. Harbouring signifies the receivers of thieves and malefactors, to whom they afford refuge, security, and opportunity for committing evil, all of whom are liable to restitution. Those who after evils committed receive malefactors under the title of mercy, that they may help them to take flight, are free from the burden of restitution.

XVII. Partaking is he who takes something of the plunder, or confers some aid to the committing of the evil. Wherefore a partaker is said to be either of the unjust action or of the thing received. Partakers of the unjust action are called all who concur to the evil: as smiths by fabricating false keys, watchers keeping guard that robbers may steal in safety, those who move ladders for entering houses, those who keep, hide, or sell things taken away by theft in the robbers' name, or themselves buy them. All these are held to restitution.