Restitution for Cooperation in Injustice

Aurelius, a bookkeeper for a certain merchant, writes the books of merchandise and commerce, recording daily in them what is given and received, expenses made, sales, and other contracts. Hence Aurelius knows well that the merchant, who before him and before others simulates by every art that he is an altogether honest man and merchant, proceeds, on the contrary, often with bad faith and fraud, deceives buyers and defrauds partners in commerce. It is indeed difficult for Aurelius to find another merchant, or anyone else, with whom he can exercise his office. But if he himself leaves the office, very many others are already prepared to undertake it.

Q. Can Aurelius continue in such an office?

R. The transcription of what is given and expended, and also of the various contracts, indeed of itself influences nothing in the merchant's frauds. For it supposes these as already done. Wherefore no cooperation in those frauds can be had from this. Nor indeed does the merchant become bolder from this, nor is he confirmed in his frauds, since he thinks that he is held by Aurelius and others as an honest man. Nor likewise, if Aurelius leaves his office, will the aforesaid frauds therefore be impeded. Finally, grave inconvenience is present for Aurelius if he leaves the office. Therefore Aurelius is not held to leave an office of bookkeeper of this sort.

"He does not sin," says La-Croix, l. 2, n. 268, "who assists a usurer in counting monies, in writing bare accounts, which do nothing toward demanding usuries, in carrying a pledge for the security of usury, in friendly demanding usuries, lest the other seem unfaithful. The reason is that these suppose the sin, or merely accompany it, nor is the borrower unwilling with respect to these things. Nevertheless a notary sins when writing a usurious contract, because although the usurer consents, he himself acts against his oath, by which he is held not to serve in unjust acts. And the same is true of witnesses signing such a contract." And St. Alph., l. 2, n. 78, says: "He who assists a usurer only in counting monies, writing accounts, or in carrying a pledge, can be excused from sin by the sole reason of service; but otherwise if he demands usuries, because the demand is cooperation more proximate to the sin of the usurer, even if he demands amicably. But if he were to demand by force or threats, he would not only sin, but besides would be held to restitution."

Another question could be raised in the case, namely whether Aurelius is held to warn buyers and partners of the merchant and others defrauded by him, that they may be on guard for themselves. It seems that one must respond affirmatively, if nevertheless he himself can effect this, due caution having been preserved, without grave inconvenience to himself, and without scandal being provoked from it. For then, from charity, he is held, as much as he can, to impede grave harm to neighbor.

82. Restitution from Damage and Cooperation

Gastonius had made a testament in favor of Fabianus, his nephew. But Florianus, his other nephew, learning this, reports to Gastonius that Fabianus had often spoken badly of him. Gastonius, hearing these things, his testament having been torn up, instituted Florianus himself as his heir, and a little afterward departed from the living.

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

R. To the 1st. Affirmatively. For whoever damages someone really takes away from him that in which he damages him. And therefore he is held to restitution of that thing taken away, whether this thing has come to the one causing damage or not. For restitution is not principally ordained to this, that he who has more than he ought should cease to have it, but to this, that to him who has less than he ought, it be supplied. S. Th. 2.2. q. 62. a. 4, 6 ad 1; I. M. 1357 seqq.

To the 2nd. Florianus must restore the inheritance to Fabianus, if, in reporting those evil words, he committed calumny or detraction. For then Florianus impeded Fabianus from certainly obtaining the inheritance by an illicit and unjust means. But otherwise it would have to be said, if Fabianus [printed: Fabianus; sense requires Florianus] with truth and from a reasonable and grave cause had manifested those grave sins of Fabianus, by which Gastonius then judged him unworthy of the inheritance. G. 635; I. M. 1367.

But what if Florianus had simply persuaded Gastonius, yet from hatred toward Fabianus, not to leave the inheritance to Fabianus? Probably then he would be held to nothing. For that persuasion without force, without lie, without deceit and fraud, although it would have been against charity by reason of hatred, nevertheless would not have been against justice. G. 638; I. M. 1368.

Ranulfus had instituted Laelius as universal heir. Lying in extreme illness, Ranulfus calls Laelius and asks him to summon a notary. Laelius, fearing that Ranulfus might wish to change his last will to his prejudice, answers Ranulfus that all things had been altogether well done by him; but that it would now be better if, rather than think about death and the testament, he thought about recovering health. Ranulfus acquiesced, and after three weeks he died.

Q. 1. How much must be restored from damage? — 2. What as to the Case?

R. To the 1st. “Someone is damaged in two ways: in one way, because that which he actually had is taken away from him; and such damage must always be restored according to an equal recompense, as if someone damages another by tearing down his house, he is held to as much as the house is worth. In another way, if he damages someone by impeding him from obtaining what was on the way to being had; and such damage need not be recompensed equally, because it is less to have something virtually than to have it actually. But he who is on the way to obtaining something has that only according to virtue or potency, and therefore, if it were rendered to him so that he would have this actually, there would be restored to him what was taken away, not simply, but multiplied; which is not of the necessity of restitution. Nevertheless he is held to make some recompense, according to the condition of persons and of affairs.” S. Th. 2.2. q. 62. a. 4.

For that which is not yet had actually, but only virtually, can still be impeded in many ways. Wherefore the value of each is not the same. But for determining this value, the conditions of persons and of affairs must be attended to; whence the hope of the thing to be had is not always established as the same, but as greater or less, as can be seen in relation to a future harvest, e.g., in him who has not yet scattered seed in the field, or has already scattered it, or the harvest is now near maturity, or the harvest is now mature and soon to be gathered. And therefore, consequently, the value of the aforesaid hope is not the same. I. M. 1359.

To the 2nd. It indeed does not appear from the Case that Laelius acted illicitly, whether against justice or even against charity. For he used no illicit and unjust means for averting Ranulfus from making any change. Nor truly did he act from any hatred against someone, but he wished only to consult his own good; and charity does not obligate someone to consult the good of others rather than his own, or to consult the good of others with notable detriment to himself. Besides, Ranulfus signified no will in particular why he wanted the notary to be called. And if in truth he had the will of changing something in the testament, he withdrew from that will, since he altogether acquiesced in the response of Laelius, nor during three whole weeks did he speak any more of calling the notary, or of making some change in the testament.

But what? if Ranulfus had signified the will of adding some legacy in the testament in favor of some determinate person, and Laelius had promised that he would soon call the notary with the intention of not calling him, and afterward did not in fact call him; or if he had said, lying, that it was impossible for the notary to come. In such a case Laelius would have impeded Ranulfus from making the legacy by fraud, by a feigned promise, and by a damaging lie. Wherefore he would be held on this head to restitution or reparation of the damage. But since there still would not be altogether certain evidence concerning the will of Ranulfus, restitution would have to be made only pro rata of the hope. For the legatee as yet had no right to the legacy itself; nevertheless he had a right not to be fraudulently impeded from obtaining the legacy. It would be very difficult in practice to assign the quantity, if Ranulfus himself had not declared the quantity of the legacy to be constituted. But if he had declared that quantity, it seems sufficient if he restore half the part. And if Ranulfus had signified the will of a legacy, and had also declared its quantity, but had not manifested the person, then the aforesaid restitution would have to be made to the poor, or to pious causes. G. 636, 637, 853.

n. 3.

“Whether a Christian faithful who knowingly and willingly destroys and ruins the walls, doors, and implements of a temple, and for that cause is captured by the pagans, ought or can repair the damage, at least under another title? — R. He is held to restitution, by title of justice.” S. I. C. 21 Sept. 1842.

n. 4.

Hircinus killed Beraldus. The family of Beraldus abounds in many riches. Nevertheless the confessor of Hircinus obligates him to restitution both toward the nearer connections of Beraldus and toward the more remote relatives.

n. 4.

For he says that Hircinus [is bound] in place of Beraldus to furnish support to this man’s blood-relatives.

n. 5.

Iacobus killed Marcus, who brought no help to his family, but on the contrary impoverished it by his vices. Nevertheless the confessor of Iacobus obligates him to restitution, because, he says, Iacobus could have returned to better fruit and helped his family.

Ubaldus challenged Sabianus to a duel; and, the duel having followed, he was unhappily killed by Sabianus, leaving in extreme misery his mother, wife, and children, whom he himself was sustaining.

Q. What as to the Cases?

R. 1. Since the family of Beraldus, and his nearer blood-relatives, namely his wife, parents, and children, can easily provide for themselves, Hircinus seems to be excused from restitution toward them. For the homicide is obligated to restitution toward nearer relatives only insofar as relatives of this sort are considered one and the same person with the deceased, and have the right, from strict piety, to be sustained by the deceased; and consequently the deceased in turn could and ought to have sustained them. Whence it also is that Hircinus is not held to restitution toward the other more remote relatives. For as to these, if they undergo any damage, the homicide is their cause only remotely and by accident. Therefore the reasoning of the confessor rather proves the contrary in the Case. G. 733, 734; I. M. 1373.

Iacobus does not seem, in the Case, to be held to any restitution: for in fact he inflicted no damage as to the goods of the family. Indeed, on the contrary, he prevented a greater damage of goods. But the hope of the conversion of Marcus appears altogether slight, since rather the presumption in itself is contrary, namely that Marcus would have continued, as he did before, in wasting the goods of the family. Wherefore no certain obligation of restitution can be imposed for damages so uncertain and remote. G. 735, 736; I. M. 1373.

Sabianus is probably not held to the compensation of damages. For first, Ubaldus by his own consent placed the whole necessary and sufficient cause of his own damages, namely by consenting that his adversary act against him as much as he can, even by killing him. Therefore he implicitly consents also to temporal damages, if any perhaps he himself is to suffer from the wound received, and consequently he is judged to remit the obligation of repairing these damages. No injury is done to one knowing and willing, when a right can be remitted. But a duelist can well remit temporal goods, and renounce his right in order that damages inflicted on him be repaired by the other.

Besides, for the same reason, because Ubaldus by his own consent placed the whole necessary and sufficient cause of the damages which were inflicted on his own relatives, neither is Sabianus probably held, as to them, to compensate the damages. For this consent of Ubaldus standing, every reason of injury and injustice done by Sabianus to the aforesaid relatives ceases; and so there will no longer be any obligation from justice to compensate the aforesaid damages.

For a killer is held to the compensation of damages in relation to the nearer relatives of the one killed because he himself, from his unjust action, by killing, e.g., the father, is the cause per se of those damages. Wherefore this right of the nearer relatives is not founded in the obligation which the father, e.g., had of feeding children and wife, but in the injury by which through force the killer impeded that which the children and wife would have had from the living father; which injury gives to the children a right of justice to having that which they would have had from the father without such obligation of justice, but from piety only. Whence the right to that compensation is not acquired by the one killed himself, nor is it derived from him into others, but is immediately acquired by those others, whose individual right has been injured, and to whom individually an injury has been inflicted. And thus the father cannot dispose of this injured right of others, nor remit the obligation of compensation. “You have a very good example of this doctrine when by force or deceit you impede Peter from conferring a benefice upon Paul, in which case afterward you are held to restore to Paul as much as that hope is worth; and this debt indeed cannot be condoned by Peter, whom you impeded, but by Paul, concerning whose damage there is question.” Lugo d. 11. n. 63, 64.

Hence in the case of a duel, the obligation of damages ceases also as to others. For in relation to these, the action of the killer is no longer unjust, that is, impeding by force their support or emoluments. For by this very fact, that the one killed himself consents to his own killing, the killer now does not impede by force the support or emoluments of others, but from the consent and will of him from whom they would have had the emoluments, and who consequently by his own consent places the whole necessary and sufficient cause of their damages, thus impeding by his own consent the reason of violence and injustice in the killer as to the damages that are to follow to the relatives. But when the reason of violence has been taken away, the root of the obligation of restitution of damages ceases, which is the violence by which the killer impedes the emoluments of others. Wherefore the killer then sins only insofar as he cooperates, e.g., with a father who, notwithstanding that debt of feeding his own, wishes to be killed with damage to them; and since this in the father is not against justice, neither is it in the cooperator, in order to them, but only against charity and piety. It would consequently be otherwise if the one killed were held toward others from justice, and not only from charity or piety. Lugo d. 11. n. 71, 72; G. 735, 736; I. M. 1373, 1375.

Carpophorus contracted very many debts because of extraordinary luxury and rather frequent banquets, to which Bertha his wife cooperated not a little. But behold, the husband being seized by sudden death, the creditors immediately came together from every side to the widow Bertha, who received nothing from her husband, since he left nothing after his death except debts. Wherefore, pressed by these straits, Bertha asks her confessor whether she is held from her own goods to pay the aforesaid debts.

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

R. To the 1st. Affirmatively. Since “to restore imports the rendering of that thing which has been unjustly taken away, for thus by its repeated presentation equality is repaired,” S. Th. 2.2. q. 62. a. 2, whoever is either directly or indirectly the cause of an unjust acceptance is held to restitution. “Directly indeed when someone induces another to accepting, and this indeed in three ways: first, from the side of the acceptance, by moving him to the acceptance itself, which indeed happens by commanding, counseling, expressly consenting, and praising someone as if strenuous because he accepted another’s things; in another way, from the side of the one accepting, namely because he receives him, or in whatever way bears help to him; in a third way, from the side of the thing accepted, namely because he is a participant in the theft or rapine, as a companion of the evil deed. But indirectly, when someone does not impede, although he can and ought to impede; either because he withholds a precept or counsel which would impede the theft or rapine; or because he withholds his help, by which he could oppose; or because he conceals after the deed; which things are comprised in these verses: Command, Counsel, Consent, Flatterer, Recourse, Participant, Silent, Not opposing, Not manifesting.” S. Th. 2.2. q. 62. a. 6.

To the 2nd. From the fact that Bertha merely cooperated with the extraordinary luxury by which her husband was living, and by which consequently he wanted the whole family to live, by complying with her husband, and also consequently by delighting herself and taking pleasure in the display of such luxury, Bertha does not seem obligated to restitution in place of her husband. For in this mode of acting there does not appear efficacious and unjust cooperation toward contracting those debts. In truth, the obligation of restoring is personal and real. Insofar as personal, it obligates the one causing damage himself, and his cooperators. But insofar as real, it affects the thing taken away by theft. But Bertha, just as she was not cooperating in cause with the debts contracted by her husband, so she accepted nothing from her husband. But if Bertha had induced her husband to contract those debts; or even if she herself had induced her husband to the aforesaid luxury, knowing well that his fortune did not suffice for such a manner of living, and consequently that he had to contract debts which he himself was unequal to paying, then indeed Bertha would have cooperated efficaciously and unjustly toward them, and so would be held to pay those debts from her own goods. G. 385; La-Croix l. 3. p. 2. n. 381.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 4 passages

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, Third Part: Concerning Com…, Section A: Concerning the …, Question Two: Concerning t…, Article IV: On Unjust Cooperation

319. Practical observations. - 1. Conjectural signs of efficacious cooperation are handed down in Theol. Mechl. n. 39, q. 5: a) if the one inflicting damage uses the means suggested by the cooperator; b) if he has done some things which the cooperator suggested and which otherwise he would not easily have done; c) if the cooperation was apt to move the executor and the damage followed, unless the contrary is drawn out from the circumstances.

One doubting a) whether he was the total cause of the damage is not bound to restitution in solidum, unless by his action he rendered the thing uncertain; - b) whether the principal cause has restored, if after inquiry has been made it is probable that restitution has been made, is not to be compelled to restitution; - c) whether cooperators of the same grade have restored, and this is probable, is not to be compelled except to restore his own part.

In practice cooperators are not always to be urged to restore the whole, even if they are bound in solidum. As St. Alphonsus says, Th. M., l. II, n. 579: "it must nevertheless be noted that the uneducated, although they are bound in solidum, rarely is it expedient to obligate to the whole; since these with difficulty persuade themselves that they are bound to restore the part taken away by associates. Indeed, it can sufficiently be presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them; since otherwise it is greatly to be feared that they will restore nothing if they are obligated to the whole." To these the confessor should say that they restore what they judge themselves to owe according to the dictate of their conscience.