Second Root of Restitution

453. 1. Unjust damaging here is understood as damage unjustly inflicted on the neighbor in external goods, without profit being taken from it. Damage can be inflicted on the neighbor in two ways: positively, by destroying his good, or negatively, by impeding him from obtaining a good (n. 429), or by not guarding goods which had to be guarded by duty of office.

2. For estimating the quantity of restitution to which he is bound who impeded another from obtaining a good, the damage which this one suffered must be considered. Therefore where the injured person had full certitude of obtaining the good, the whole good must be restored; but where he had only a more or less probable hope of obtaining the good, only a part of the good must be restored according to the value of the hope as determined by prudent judgment: for hope, however great, scarcely has half the value of the thing itself, because hope can fail and be impeded in many ways.

WHOEVER wilfully causes unjust damage to another, even though he himself obtained nothing by his unjust action, is bound to make restitution to him as far as he can. For he is the unjust cause why another has not what belongs to him, and in order that justice may be done he must cause the person damaged to be put as far as possible in the same condition as he was in before the damage was done. He must then make restitution not only for all the damage which he intentionally caused, but for all consequent losses as far as they were in general foreseen.

In order that such an obligation may be imposed, certain conditions must be fulfilled which it will be well to state more explicitly.

(a) The damage must be inflicted voluntarily, with knowledge and the will to do the wrong. For a man is only responsible in the forum of conscience for his free and voluntary actions. There must be theological fault, as theologians express it, otherwise there will be no obligation in conscience to make good any damage, at any rate before lawful sentence of a judge competent to impose such an obligation. For the law sometimes imposes the obligation of making good damage which has been done, even though it was not foreseen or intended. This is especially the case when there has been legal negligence or the omission of that diligence which the law requires in the circumstances. There are three degrees in this negligence: “ Ordinary neglect has been defined to be the omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns; gross neglect is defined to be the want of that care which every man of common sense, however inattentive soever, takes of his own property; and slight neglect to be the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels.”¹ In some cases the law punishes even slight neglect, in others ordinary, in others only gross neglect. The omission of that care which the law requires in the case is called juridical fault, and after sentence there will be an obligation in conscience to make good damage caused through juridical fault, for the laws prescribing this are just, inasmuch as they make men more careful and conduce to the public good.

If something has been done without foreseeing that it would cause damage to another, but this danger was noticed before the damage actually took place, there will be an obligation in justice for him who performed the action to prevent the damage as far as he can; if he does not do this, he will be bound to restitution. For as long as he can prevent the evil consequences of his action, this is under his control, and may, from the point of view of morals, be considered as continuing, and thus, unless he prevents the evil when he can do so, the agent is the voluntary cause of it. If, however, he cannot prevent the damage without relatively serious inconvenience to himself, there is just cause for excusing him. And so, if I inadvertently throw a lighted match on the ground, and then notice that it may probably cause a conflagration with loss to others, I am bound in justice to extinguish the light, otherwise I must repair the damage done.

If slight negligence caused slight damage to another, there will be an obligation of repairing it under pain of venial sin. If slight negligence caused serious loss to another, there is a difficulty as to whether before any judicial sentence there be an obligation to make restitution. Many theologians deny that there is, for no grave obligation can arise from a slight fault, and a light obligation has no proportion to serious matter; there cannot be a light obligation to avoid homicide, for example.²

(b) In order that there may be an obligation to make restitution for causing damage to another, the damage must be really and objectively unjust. If damage to another follows from the lawful exercise of my rights, I am not bound to make it good. If I dig a well in my property and thereby deprive my neighbour of his supply of water, I am not bound to make restitution for the damage. Similarly, I may sell a new machine or invention, though it may indirectly cause loss to many who had on sale machines of older pattern for which now there will be no market.

I may lawfully use persuasion to induce a rich relative to leave his money to me, though others who would have had it thereby suffer loss, If, however, I make use of unjust means such as threats, violence, or calumny, and so prevent another from getting what he otherwise would have got, I commit a sin against justice and am bound to make restitution to the injured party. This is true even though he had no strict right to what he would have got, for at least he had a right not to be balked of his expectations by unjust means, And so in a competitive examination or concursus where something of value is the prize at stake, one who secures the prize by unjust means must make restitution to him who would otherwise have secured it. If there were no certainty of his securing it, restitution as far as possible must be made according to the degree of probability of his success.

(c) The unjust action must be the cause, not merely the occasion, of damage being done to another, in order that there may be an obligation of making restitution. For we are only responsible in justice for damage which we have caused. And so if I commit theft and others are induced to do the same by my bad example, I am indeed bound to make restitution for what I have stolen, and I commit a sin against charity by giving bad example to others; but probably at least, according to many theologians, I am not bound to make restitution for what others stole through my bad example. Similarly, I am not bound to make restitution for damage which was caused accidentally by my action, when there was antecedently no probable connection between my action and the damage caused. As, for example, if I lit a fire in my property, and there was no probable danger of its causing damage to my neighbour, I am not in conscience before judicial sentence bound to make good damage which it caused him on account of an unforeseen change in the direction of the wind. Some theologians would bind the man who lit the fire to restitution in this case if he hoped for the change of wind and intended the damage. They say that the wrongful intention supplies the want of physical causation and puts him under the obligation of making restitution. This opinion is probable, but the opposite also is probable, for although the evil intention makes the man guilty of affective injustice, he is not guilty of effective injustice, for his evil intention makes no difference in the physical sequence of cause and effect, and if he was not the cause of the damage prescinding from his evil intention, that evil intention could not make him the cause.

In the same way, if the theft of one servant is wrongly imputed to another, and this one is dismissed in consequence, the thief is not bound to make restitution to the injured man unless in some way he caused the false imputation.

One who is not sure whether any harm was caused by his action is not bound to make restitution, for a certain obligation cannot arise from an uncertain source. Whether there is any obligation of making restitution for damage which was certainly caused, but it is uncertain whether the author was A or B, is a disputed point among theologians. Many teach that there is an obligation on all the probable authors in common to make good the damage, and each will be bound to make good the whole in default of the rest. This is certainly true in case of conspiracy; but if each acted independently, and it is not certain which one caused the damage, it is hard if the burden of restitution is imposed on someone who perhaps did not cause the harm.³

If an incendiary intended to set fire to the house of A, and by mistake he destroyed the house of B, it would seem that he is bound to make restitution, for all the requisite conditions are present. His action was voluntary, really, and effectively unjust. Some theologians, however, deny that the obligation of making restitution can be imposed in such cases. For the injury should be formal, and they deny that it is formal in this case. He did not intend to injure B; it was purely by mistake that his house was burnt down. Some weight must be allowed to this opinion on account of the authority of those who maintain it, but it would seem to be over-subtle and against the common sense of mankind. The injury was formal, inasmuch as it was voluntary and knowingly unjust. This is sufficient to induce the obligation of making restitution; it is not necessary that the wrongdoer should intend to injure a definite person.

¹ Chitty, The Law of Contracts, p. 412.

² St Alphonsus, 3, n. 552.

³ Bucceroni, 1, n. 1369.

He who by fraud, violence, or other unjust means leads another to commit sin, or deprives him of any supernatural or natural good belonging to the soul and mind, is guilty of injustice, and is bound to make reparation to the injured party. If the same effect is produced by persuasion or other not unjust means, a sin of scandal is committed; but justice is not violated, nor is there any obligation to make restitution. These principles are not only applicable to sin, but to vocation to the religious state and to sound doctrine, especially of the practical order. Priests or masters, who by their office are bound to instruct others and teach them the truth, are in a special manner obliged to correct any false instruction which they may have given. Better leave people in ignorance than imbue their minds with falsehood.

There is a controversy among theologians as to whether there is an obligation apart from the just sentence of a judge for one who has injured another in one species of goods, as, for example, in his reputation, to make restitution to him in goods of another order, as, for example, in money. A competent judge may, of course, impose such an obligation according to the rules of equity; but apart from positive law the opinion which denies any strict obligation to do this seems the more probable. For if justice imposed such an obligation, equality would have to be secured between the injury inflicted and the compensation paid. This however, seems impossible in such a case, for there is no common measure of reputation and money. Moreover, however large a sum of money were paid in compensation for detraction, the reputation which had suffered would not thereby be restored. Justice, however, requires that what has been taken away should be restored, not something else.

When one has injured another’s reputation by slander or detraction, he is under a grave obligation in serious matters to restore his neighbour’s good name as far as he is able, and to make reparation for all other damage which the injured party has suffered in consequence of the slander or detraction. If he has lost his position or money, restitution of these must be made as far as possible, We saw above that more probably the detractor is not bound to pay money precisely in compensation for the injured reputation, unless condemned to do so by competent authority. The mode of restoring the injured reputation of another will vary according to circumstances. If no other way presents itself, the slanderer must say that he spoke falsely, for the reputation of the innocent is of more consequence than that of the guilty. A detractor who has injured the good name of another by making known his secret sin, cannot, of course, say that he spoke falsely, but he must do what he can in some other way towards the desired end. There will be no obligation to do anything if the calumny or detraction has been forgotten, or if the injured party has lost his reputation in some other way, or if the injured party prefers that the matter should not be reopened, or if it is physically or morally impossible now to do anything towards restoring his good name.

One who has unjustly wounded another, according to the more probable opinion, as we have seen, is not bound to make compensation in money for the wounding or mutilation.

He is, however, bound to make restitution for all expenses to which his action has subjected the injured man, and for all other money losses which followed in consequence of loss of work, position, etc., and which were in some way foreseen by the wrongdoer. If the injured man dies, restitution must be made to his heirs or legatees for all the expenses he was put to or the losses he suffered on account of the unjust action, If, in consequence of the injury inflicted, the injured man cannot provide for wife, children, or parents, or if death ensued, the wrongdoer will be obliged to provide at least what is necessary for their support. For these had a right not to be deprived of their support by the unjust action of the wrongdoer. There are no necessary heirs according to English law, and it is a controverted point whether restitution is due to other heirs, relatives, or creditors who have suffered damage from the injury inflicted. It is probable that inasmuch as injury to such people is not necessarily connected with unjust wounding or homicide, and only follows from it in a remote and accidental manner, there is no obligation to make compensation to others besides the above-mentioned.¹

Whether the injured man can release the wrongdoer from the obligation of providing for his family who are dependent on him is a disputed point among divines. Many approved theologians hold the affirmative on the ground that the family acquire their right to compensation through the injured man, who therefore can release the wrongdoer from all obligation to make restitution. This opinion is certainly probable, and so in case of a duel where both parties have freely consented to fight, and therefore freely accept the consequences of their action, there will be no strict obligation for the victor to make any compensation for wounding or killing his adversary.

¹ Lugo, disp. 11, n. 77.

Scientist et volenti non fit injuria; and so if a woman suffers loss of reputation, position, or money, in consequence of fornication freely committed, no restitution will be of strict obligation. Even for criminal assault or rape no restitution in money is of obligation to compensate precisely for the loss of virginity. But the man who has been guilty of this crime must make restitution for other losses, and either by marrying the woman wronged or by providing her with a dowry, he must, as far as possible, put her in the position in which she would have been if he had not wronged her.

No money compensation is of obligation on account of adultery when no child has been born of the adulterous intercourse. If a child has been born, and loss ensues to the husband who is compelled to support a child which is not his, or to the family because one who has no right comes in for a share of the inheritance, compensation must be made by the guilty parties. Great difficulties would arise if an adulterous wife made known her crime to her husband, so she is not bound to do this; nor is a child bound to believe the sole assertion of his mother that he is illegitimate. Compensation must be made in other ways as far as possible. In practice, however, if husband and wife are living together, it will rarely be certain whether a child that is born is the fruit of adultery or not, and the presumption is that it is legitimate. If they are not living together, the adultery will be patent to the husband, and if he consents to support the child and treat it as his own, the obligation of the adulterer will cease.

What has been said about theft in general and about minor thefts in particular is also to be applied to damaging in general and to minor damages in particular. Nevertheless, in particular:

Question 1. Whether even in mere damaging there must be admitted matter absolutely grave, that is, matter which even with respect to the very rich must be held as grave.

Response. It must be affirmed, because the act, for example, of destroying another's thing as such, according to its proper concept, that is, with abstraction made from the damage which is inflicted on the neighbor, involves disorder. But if it involves disorder, one must finally arrive at grave matter (p. 676).

Question 2. How great is the obligation of restoring if someone, through several minor damages following at a brief interval and done against the same owner, finally arrived at grave matter, but subjectively sinned only venially?

Response. The obligation is not grave in practice, because venial sins sufficiently probably do not induce a grave obligation (p. 649). It remains, therefore, that we say the damager is held under venial sin to restore each minor damage.

Goods of the body are injured through homicide and mutilation. But damages that will follow from these can be distinguished into spiritual, corporal, and temporal damages. Each must be discussed.

I. Spiritual damages consist in this: that the one killed is deprived of the last sacraments, of time for meriting, etc. Moreover, they must be restored only if both the damage that followed is certain and the damage can truly be compensated; for example, if the killer prevented Masses from being celebrated which the one killed certainly would have taken care to have celebrated for his soul.

II. Corporal damages consist in deprivation of life, of a member, of health, and in the endurance of pain. There is no obligation of restoring these through goods of fortune (n. 980). Nevertheless, there is an obligation, not indeed by way of restitution for the lost member, but for the expenses that followed from it, of assigning goods of fortune to the injured person insofar as he wishes to substitute an artificial member for the member taken away.

III. Temporal damages are distinguished into damages inflicted on the injured person himself and damages inflicted on third parties.

1. Damages inflicted on the injured person himself consist in the expenses of treatment, yet with those things deducted which he, if healthy, would have had to spend on food; likewise in emergent damage or ceasing profit for the time in which the injured person still lived and had to cease from labor. Restitution must be made according to the valuation of the hope of obtaining the goods, and indeed to the injured person himself or, if he has died, to his heirs. But if the killer does not restore these things, his heirs are held to restitution, unless the injured person has condoned them. "When remission of the injury has been made, remission of the damages is not understood to have been made" (St. Alphonsus, III, 630, 631).

Question 1. Whether something can be deducted from restitution of ceasing profit for the labor which the injured person would have had to spend in order to obtain the profit.

Response. Some affirm it; others seem rightly to deny it, for by his unjust action the killer caused the deprivation of the whole profit; hence he is also held to restore the whole profit. Yet in practice "Bonacina reasonably reconciles the opinions, saying that only that should be subtracted which the one killed is presumed to have been willing to give for the redemption of the labor" (St. Alphonsus, III, 639).

Question 2. Whether the heirs of the killer are freed from the obligation of restoring if the killer is punished with death.

Response. It seems this must be denied, because the penalty is judged to have been imposed only to satisfy vindicative justice, not commutative justice. Nevertheless, the heirs are excused from restitution if compensation for damages is not sought, because then the parties are presumed to condone, unless the thing still existed, or unless the damage was very grave (St. Alphonsus, III, 705).

2. Damages inflicted on third parties can chiefly regard the family, that is, parents, wife, and children; other blood-relatives; those to whom the one killed was doing good; and the creditors of the one killed. Now:

a) Damages inflicted on the family consist in deprivation of the support which the one killed was procuring for it, and likewise of the profit which he would still have procured for it. By the consent of all, these must be restored. The reason is deduced from the fact that the killer injured not merely a physical person, but, as it were, a moral person; a moral person, I say, which the others constituted with the person killed. Hence restitution is to be made to them (St. Alphonsus, III, 631). Nevertheless, "nothing is restored for funeral expenses, because those eventually would have had to be made at some time; unless perhaps, on the occasion of the death inflicted, for example outside the homeland, it was necessary for greater expenses to be made" (St. Alphonsus, III, 631). For the rest, restitution again must be made according to the valuation of the hope of obtaining those goods (St. Alphonsus, III, 631, question 2). A right norm will be the one which insurance societies follow on the occasion of an adverse event.

Question 1. Whether restitution is to be made to the family if it can conveniently provide for itself.

Response. Affirmatively; since the fact that the family can provide for itself does not prevent its right from having been injured; but from an injured right there arises the obligation of restoring. Yet the killer is not held to restore if the family receives from another what it would have received from the injured person, for example, "if the wife (and the same would have to be said of children and parents) afterward has married equally conveniently, nothing is to be restored to her; because then in reality she does not suffer damage" (St. Alphonsus, III, 631, question 1).

Question 2. Whether the injured person can remit the restitution owed to the family.

Response. Many deny it, because no one can remit restitution owed to another; but with St. Alphonsus and others it seems this must be affirmed, because the right of the family is entirely subordinated to the right of the father. Hence just as the father can validly transfer goods into another's ownership, so too he can validly remit restitution for them. But here again note: "When remission of the injury has been made, remission of the damages is not understood to have been made" (St. Alphonsus, III, 630).

b) Damages inflicted on other blood-relatives do not have to be restored: neither by reason of the good from the obtaining of which he impeded them, because they did not have a strict right to it; nor by reason of the means employed, since it would be unjust only with respect to the one killed. For the same reason the same must be said about the poor to whom the one killed was doing good, and about others who would have received certain things from the testament (St. Alphonsus, III, 632).

c) Damages inflicted on creditors likewise do not seem to have to be restored. It is indeed true that they are impeded, as we suppose, from obtaining a good in which they had a strict right; but they are not impeded by the killer, but by the heirs or by the law exempting the heirs, while the killer is only an occasional cause (St. Alphonsus, III, 634).

Nevertheless, St. Alphonsus and others judge that the enumerated damages must be restored if the killer acted with the intention of harming the enumerated persons (n. 996).

Corollary I. He who provokes another to a duel and kills or wounds the provoked man, who freely accepts the contest, is not held to restitution, neither toward the injured person, because he consented to the damage in fortune that would follow, nor toward the family, because the injured person, from whom the family would have received goods, by his own consent prevented him from acting unjustly toward it, since it had only a consequent right in the goods (St. Alphonsus, III, 638).

Corollary II. The one attacked, who deliberately exceeded the measure of blameless defense, seems to be held to restitution for the damages that followed from the excess, because the excess was truly unjust (St. Alphonsus, III, 637).

Objection. The attacker knowingly and willingly exposed himself to the danger that the one attacked would exceed the measure of blameless defense; but no injury is done to one who knows and wills.

Response. He who knowingly and willingly exposes himself to the danger that his right be injured is not therefore judged to yield his right.

Corollary III. What has been said about damages following from homicide is also to be applied to damages arising from wounding and other injuries of the body.

Goods of the soul are distinguished into natural and supernatural goods.

I. Natural goods are: intellect, will, memory, sciences, arts, and the use of these. In this matter, injustice is committed either by unjustly harming someone in the said goods or in their use, for example by inducing someone unwilling or ignorant into drunkenness or by casting him into a hypnotic state; or by unjustly impeding someone from obtaining a good of this sort, for example knowledge; or by not procuring for someone a good, for example an art, although one is held from justice to procure it. Now:

1. He who has committed injustice according to what has been said is held from justice: 1° to remove the cause of the damage, for example fear that has been instilled, and to prevent, insofar as can be done, damages threatening from it; 2° to restore damages or ceasing profit that have followed or will follow for the injured person, for example ceasing profit from the fact that someone is unfit for his office; 3° to return, according to the proportion of negligence, the stipend agreed upon and accepted, if someone, for example, has not duly performed the office of teaching.

Corollary. He who harmed someone only by persuasion, entreaties, or example is commonly not guilty of injustice, and therefore contracts only an obligation of charity. I have said commonly, because he who by persuasion or entreaties led another into a sin of injustice is held from justice to restitution with respect to the injured person.

II. Supernatural goods are: grace, virtues, vocation to the religious state, etc. Now:

1. He who unjustly, for example by lies or fear, led another into a harmful error or into sin, or led him away from a good work, for example from Religion, is held as was said under I about him who unjustly harmed someone in the natural goods of the soul.

2. He who only by persuasion or example led another to evil, or led him away from good, is not held to restitution; nevertheless he is held from charity, more than others, to promote his conversion. There are some who judge that he is held to this from justice; but because he did not sin against justice, no obligation of justice can arise.

The goods of chastity and modesty are injured through stuprum and adultery.

Adultery: 1° injures the conjugal right of the legitimate spouse; 2° if it becomes known, inflicts a grave insult on that same spouse; 3° finally brings with it damages in goods of fortune.

The injury to conjugal right cannot be repaired; the insult is compensated by showing sorrow, etc. But especially the damages in goods of fortune must be discussed.

I. Damages to be restored with respect to goods of fortune are distinguished into damages inflicted:

1. On the legitimate husband. They consist in this: that offspring belonging to another is supposed to be fed and educated by the husband. These do not have to be restored if the husband consented to the adultery; otherwise, they do.

2. On legitimate children or other heirs. They consist: 1° in this, that the illegitimate child will share the inheritance of the putative father with the legitimate children; these likewise do not have to be restored if the husband consented to the adultery. Yet if the legitimate portion is injured, the legitimate children can appeal to the law; 2° in this, that the illegitimate child will divide the inheritance of the mother with the legitimate children; these things per se are not to be restored, since the mother can freely dispose of her own goods. Yet if the legitimate portion of the legitimate children is injured, they enjoy the right of appealing to the law; 3° in this, that through error about their condition, testamentary dispositions, inheritances ab intestato, or donations come to illegitimate children, which otherwise would have come to legitimate children or others. Moreover, since these things rest on error, they are invalid, and therefore must be restored by the illegitimate child if he has been convicted of his illegitimacy. I have said: if he has been convicted of his illegitimacy; wherefore note that the spurious child is not held to give credence to his mother, unless proving indications are present (St. Alphonsus, III, 654). The adulterers must restore these things to the legitimate children insofar as their adultery must be called a cause per se; but this must be said of testamentary dispositions and inheritances ab intestato, not always of donations.

II. Persons restoring. 1. If each voluntarily consented to the adultery, each must restore a part;¹ but if one fails, the other is held to the whole, while recourse against the partner remains (St. Alphonsus, III, 651).

2. If the woman was led to adultery by fear or fraud, the adulterer is obligated to restore the whole damage; if he fails, the adulteress is. But the adulterer is held to restore the whole damage even if he did not persuade the woman to substitute the adulterous offspring for the husband. "The chief reason is that although the adulterer merely permits his son to be substituted, nevertheless by begetting the son he is the proximate and direct moral cause of all the damages, since he places the adulteress in the moral necessity of substituting the offspring; from this it is morally impossible for her to cast the offspring out of the house because of the infamy she would undergo. But the contrary must be said ... if the adulteress, without her own infamy and danger of substitution, can keep and feed the offspring outside the house" (St. Alphonsus, III, 659, question 30).

3. If the woman was overcome by physical force, the adulterer is held to repair the whole damage; nor, if he fails, is the woman held.

¹ Others obligate the seducer to the greater part, because he is a cause both moving and executing.

III. Time of restoring. If the damage has already actually followed, it is to be repaired as soon as possible, like any other damage. If it has not yet been inflicted, the guilty person must so arrange matters that at the opportune time he may restore to the one to whom he ought whatever the spurious child is going to acquire unjustly by inheritance. But if, in this case, the adulterer were near death, he is held to restore immediately, by himself or by another, according to the probability of the life of the spurious child, taking into account his age and strength.¹

¹ Aertnys-Damen, I, n. 825.

IV. Mode of restoring. The adulteress, if she has goods of her own, should restore from these. If not, she should strive to satisfy in another way, if it can be done, for example by working more diligently, etc. Nevertheless, the adulteress, even if she cannot restore otherwise, is scarcely ever held to reveal her crime, namely on account of the infamy and other evils threatening from it (St. Alphonsus, III, 652, 653).

Note. What the law is in doubt whether the offspring is adulterous, or of which adulterer it is, see n. 1008.

Cf. Part VIII, on the eighth precept, where the injury of reputation is treated, and, because of the connection of the matter, also the injury of the other goods enumerated is discussed.

Seduction.—Having discussed scandal, which leads others into sin by bad example, we shall now consider, first, solicitation or seduction, which leads others into sin by moral inducement, and, secondly, cooperation, which assists another to sin (see 1460).

Seduction is some external act (words, writing, signs or gesture) by which one directly and explicitly seeks to win the consent of another to sin. There are various modes of solicitation.

(a) There is command to sin, which is an authoritative direction to commit sin imposed by a superior on his subject. Command is given expressly, as when a father tells his son to steal; or implicitly, as when he tells his son that it will please him if the son steals.

(b) There is counsel to sin, which is direct persuasion to do evil made through argument that sin is lawful, or through instruction on the ways of committing sin, or through advice, request, promises, threats, etc., as when one writes in praise of suicide to a person who is very discouraged, and recommends it.

(c) There is enticement which is an indirect persuasion to sin made through flattery, insinuation, calumny, narratives, etc. Thus, Absalom worked on the people of Israel and beguiled them into rebellion against his father (II Kings, xv. 1-6). Those who ridicule temperance and so lead others to drink excessively, entice to drunkenness. A host who offers little except fine meats on a Friday entices to the violation of abstinence.

The Malice of Solicitation.—(a) The gravity of this sin according to its nature is mortal, but it may be venial on account of imperfect deliberation or smallness of matter (see 1473). Thus, it is a mortal sin to command one’s son to commit grand larceny or perjury, a venial sin to command him to commit petty theft or tell a harmless lie. (b) The circumstances of the sin that aggravate or extenuate are the greater or less degree of deliberation and malice, the greater or less evil of the sin to which one induces one’s neighbors, etc. (see 1473, 1474). (c) The species of the sin of solicitation is twofold; there is the sin of scandal, opposed to charity, inasmuch as a neighbor is led to sin, and there is also the sin which one persuades a neighbor to commit (see 1468 sqq.).

Seduction is incitement to sin, and so differs from mere permission of sin in another. It is never lawful to incite to sin, but it is lawful for a sufficient reason to permit sin in others, as was said above in reference to Pharisaic scandal (see 1477, 1482, 1483). But, in applying this principle to concrete cases, it is sometimes difficult to draw the line between incitement and mere permission. We shall discuss now the following cases in which this difficulty occurs: (a) when one requests another to do something which one knows will be a sin for him; (b) when one advises another to commit a less rather than a greater evil; (e) when the opportunity for another to commit sin is not removed, or is prepared.

Is it lawful to ask another to do something, when one knows that he will not consent without sinning?

(a) If the thing requested is sinful in itself, the request is also sinful. Hence, it is not lawful to ask a thief to sell the goods he has stolen, nor is it lawful to request absolution from a priest who lacks jurisdiction.

(b) If the thing requested is lawful in itself, but there is no sufficient reason for the request in view of the fact that the other will sin by granting it, the request is sinful. Hence, it is not lawful to ask baptism from a person who is in the state of sin, when one can easily obtain it from another person who is in the state of grace.

(c) If the thing requested is lawful, and there is a sufficient reason for the request, one does not sin by making the request. Hence, it is lawful for the sake of the common welfare to require that witnesses take an oath, even though one knows that one of them will commit perjury.

Is it lawful to advise another to commit a less evil in preference to a greater evil?

(a) If the other has not made up his mind to commit either evil, it is not lawful to advise that he do either. Thus, to counsel another to steal, and to make his victims the rich rather than the poor, is a species of seduction.

(b) If the person has made up his mind to commit the greater evil and the lesser evil is virtually contained in the greater, it is lawful to advise that he omit the former for the latter. For in thus acting one prevents the greater evil and does not cause the lesser evil, since it is virtually contained in the greater evil which the other person had already decided on. Thus, if Titus is bent on stealing $100, Balbus is not guilty of seduction, if he persuades Titus to take only $10. We are supposing, of course, that Titus is so determined to steal that it is out of the question to deter him from taking at least a small amount.

(c) If the person in question has decided on the greater sin and the lesser is not virtually contained in the greater, it is not lawful to recommend that he commit the smaller instead of the greater sin. For, if one does this, one does not save the other from the internal guilt of the greater sin intended, while one does add the malice of the lesser sin which was not intended. Thus, if Titus plans to kill Caius, it is not lawful to advise that he rob him instead, or that he kill Claudius instead, for robbery is a specifically distinct sin from murder, and Claudius is a different person from Caius. But, if Titus planned to kill Caius in order to rob him, it would not be unlawful to point out that the robbery could be carried out without murder and to advise accordingly.

Is it lawful so to prearrange circumstances that an occasion of sin will seem to offer itself to another?

(a) If the end and the means used are good, this is lawful; for there is no scandal or seduction, but sin or the danger of sin is permitted for a proportionately grave reason. Examples: Sempronius knows that someone is robbing his desk, and it is important that he discover the thief. He leaves the desk open and watches from concealment to see whether a suspected person who is coming to the room will steal. Claudius is quite certain that Titus is stealing his chickens, but he needs evidence in order to have Titus convicted and deterred from future stealing. So, he leaves doors open and hides himself with witnesses that Titus may be caught in the act.

(b) If the end or means is bad, it is not lawful to prepare an opportunity for sin, because in either case one intends something sinful. Examples: Sempronius knows that his wife Titia has been unfaithful and he threatens to leave her. She, wishing to have a countercharge to make or to secure evidence to discredit his word, hires various dissolute females to lay traps for him and his friends. Claudius out of revenge wishes that Caius be sent to jail, and he therefore employs agents to provoke Caius into something criminal in word or deed that will justify incarceration. Balbus knows that Mercurius is a dangerous character, and he frames a scheme by which Mercurius will be invited to participate in an act of banditry and be captured. Titia and Claudius sin, because their purpose is wrong; Balbus sins because he uses wrong means. All three are guilty of seduction, at least in intention.

Duty of a Lawyer When the Justice of a Cause Is Doubtful.—(a) In a civil cause, the lawyer may act, whether for the plaintiff or for the defendant. He may even take a case whose justice seems less probable, for the purpose of the trial is to settle the doubt, and not infrequently the cause that seemed doubtful or less probable at the outset is vindicated by the examination. Some moralists distinguish for cases in which the doubt is one of fact between the defendant and the plaintiff: if the former’s case is less or equally probable, they say, one may take it, but not so if this is true of the latter’s case.

(b) In a criminal case, when life, reputation or other grave issue is involved, the common opinion is that a lawyer may not prosecute if the case of the people is doubtful or less probable, but he may defend, as was just said, even though he is certain that the accused is guilty. The office of the prosecutor is not necessarily to secure a conviction, but to see that justice is upheld, while the office of the defender is to take care that an accused person is deprived of no right or protection that he should have under the law.

Defamation.—Defamation (backbiting) is the unjust blackening of the reputation of another person by secret words.

(a) It is unjust, that is, it has no reasonable motive to justify it. Defamation differs from just revelation of secret faults.

(b) It is a blackening or besmirching, that is, a taking away or lessening of fame. Defamation casts a shadow over or totally obscures the brilliance of a good reputation.

(c) It is against reputation, that is, against the favorable opinion and report of the public on the virtue and character or other good qualities of a person, Thus, it is defamation to say that an individual is a drunkard, or that a professional man is incompetent, if these persons are not known to have such defects. If a person has no reputation here and now, except a bad one (e.g., a criminal who has just been convicted and sentenced to prison, a loafer who is often seen intoxicated on the streets, a woman who is often heard peddling scandals), it is not defamation to speak about the true and public faults of this person; nor is it sinful to speak thus if there is some suitable reason (e.g., to discuss a murder trial that is being reported in the papers, or to tell a humorous incident that will do no harm). But those who uselessly or harmfully discuss the known weaknesses of their neighbors are sinners called gossipers or fault-finders.

(d) It is against the reputation of a person, that is, of an individual possessed of right. The party offended by defamation can be a natural person (i.e., a rational being, whether infant or adult, high or low, rich or poor) or an artificial person (i.e., a society, group or collection of individuals endowed with reason); he can be either a living or a deceased person, for death does not destroy the soul nor take away the right to reputation.

(e) It is against the reputation of another, that is, defamation as now used is a sin of injustice, and one cannot be strictly unjust to oneself; but “self-defamation” may be used in a wider sense to designate a sin opposed to charity (see 1575 sqq.).

(f) It is accomplished by means of words, that is, by oral communication or its equivalent. One can defame, therefore, by word of mouth, by deaf and dumb language, by writing, by a gesture, by silence, or by a look.

(g) It is done by words or signs that are secret, that is, by words or signs expressed before others but in the absence of the person who is defamed, or at least when he is thought to be absent (backbiting). The defamer is like the thief who wishes to do harm but does not wish the victim to know the author of the harm.

The Differences between Defamation and Contumely.—(a) They differ in their purposes, for the defamer intends to hurt another in his reputation before the public, while the contumelious man intends to hurt another in his honor, either in his own eyes or in those of others. (b) They differ in their manner of procedure, for defamation is behind the back, contumely before the face, of the party who is injured. The defamer has some respect for his enemy, for he fears to face him and resorts to undermining, but the contumelious sinner despises his enemy and shows it by insulting him to his face.

Various Forms of Injury to Good Name.—(a) By reason of the intention, the injury is either defamatory (as when derogatory things are said about another behind his back) or contumelious (as when derogatory things are insultingly said to him in his presence). Hence, there can be injury to reputation that is not contumelious (e.g., the secret spreading of a rumor that Balbus is a drunkard); there can be contumely that is not injurious to fame (e.g., the addressing of Balbus as a drunkard when no else is by, or when those present know already that he is a drunkard), and contumely that is injurious to reputation (e.g., when one calls Balbus a drunkard before others who thought he was a sober man).

(b) By reason of the purpose, defamation is willed either explicitly or implicitly. In the former case the defamer expressly intends the blackening of his neighbor’s reputation; in the latter case he intends something unnecessary, such as mere indulgence of levity or talkativeness, though the blackening of his neighbor is foreseen. Explicit defamation is regularly a mortal offense, implicit defamation a venial one; but the degrees of sinfulness may be changed, if the former sin causes slight, or the latter sin serious damage.

(c) By reason of the injury done defamation is either detraction or calumny. Detraction blackens a reputation by revealing faults or defects that are real; calumny (slander) injures reputation by stories that are untrue. A common form of calumny is a mixture of truth and falsehood (e.g., when a historian ascribes to a villain, in addition to real crimes, faults of which the latter was innocent), or of half-truths that convey the impression of what is untrue (e.g., when a historian narrates that a certain character killed a man and does not give the background or causes of the killing, such as provocation, challenge, mistake; or when a biographer tells of the crimes of his subject and glosses over the virtues, or makes no mention of his amendment).

(d) By reason of the means used defamation is either direct or indirect. Direct defamation is more open and positive; indirect defamation is rather concealed or negative. There is also the distinction of slander (which is oral) and libel (which is written or printed). Libel is more grievous, since it has a permanence that is not found in spoken words.

Examples of Indirect Defamation.—(a) Faint praise is a subtle mode of defamation, as when one says of an absent person that he has not committed murder yet, or that like everyone he has some good points, for to the listeners this indicates that the speaker does no hold a high opinion of the person discussed.

(b) Silence is also at times a hidden form of defamation, as when Titus says to Balbus that the absent Caius is good and Balbus out of malice answers: “Let’s talk about something else; we must be charitable”, or when Sempronius falsely declares in company that the absent Claudius is to the knowledge of Julius a depraved character and Julius, who is present, makes no protest against the misrepresentation.

(c) Depreciation is defamatory, as when one says that a person who is being discussed is not as pious or reliable as is commonly believed, or that there is great room for improvement, or that he is much better now than in times past, or that there is another side to the picture, or that he is good, but....

(d) Denial of good qualities is defamatory, when it lessens the esteem in which a person is held. The good qualities here referred to are those that render a person distinguished or commendable among his fellows: chiefly these are moral qualities (viz., virtuous habits, dispositions and acts); secondarily, natural and internal qualities (such as learning, quickness of mind, experience, strength and health of body, and in women, beauty); finally, natural and external goods (such as wealth, famous ancestry, able assistants in business, or the excellent merchandise supplied, etc.).

Examples of Direct Defamation.—The following are examples of direct defamation:

(a) sinister interpretation, as when one states that words or acts of a neighbor that were good or at least open to a good interpretation, were dictated by greed, ambition, pride, etc.;

(b) unjust revelation (detraction), as when one reveals secret faults or crimes;

(c) exaggeration, as when one magnifies a venial into a mortal sin, an exceptional or indeliberate fault into an habitual or deliberate sin; or when one distorts a sin of one species into a sin of another and far more heinous species, or accuses a whole class or body of men because one of their number has fallen. Those who add their own little detail or circumstance to a defamatory tale as they pass it along are proverbial examples of exaggeration: “Fama crescit eundo”;

(d) false accusation (calumny) is the worst kind of defamation. Innocent XI condemned the proposition that one may probably use calumny without serious sin as a defense of one’s own justice and honor (see Denzinger, n. 1194).

Direct defamation is committed either by plain words or by insinuation. (a) Examples of defamation by innuendo are those ambiguous expressions or half-veiled accusations that arouse suspicion and often do more injury than plain accusations. Thus, to say with a laugh or in an ironical tone that a certain person is human, or broadminded, or prudent may be equal to volumes of abuse, since the words can have a bad meaning as well as a good one. Similarly, such expressions as, “What I know about him is not to be told,” “I know what no one would believe,” etc., may be taken for slurs on character.

(b) Examples of defamation by plain speech are all those innumerable statements which, either in general terms (e.g., that another person is a scoundrel, a villain, a reprobate) or in specific ones (e.g., that another person is a blasphemer, a thief, a liar), tend to blacken the good name of a neighbor.

Good Repute or Fame.—Good repute or fame is of various kinds. (a) Thus, by reason of its object, good reputation is either negative or positive. A negatively good reputation consists in the absence of any unfavorable opinion or belief about a person, while a positively good reputation is the common judgment in favor of a person’s worth. (b) By reason of its relation to the real character of a person, it is either true or false. Thus, if a man is regarded by the community as honest, his reputation is true when he is really honest, but it is false when he is in fact dishonest. (c) By reason of its degree, it is either ordinary or extraordinary. Ordinary good repute is that which every person needs, and it consists in the public belief that an individual is trustworthy and competent in the affairs and duties that pertain to his state or occupation. Extraordinary fame is that which is not necessary, such as the celebrity which a person enjoys for unusual ability as a statesman, orator, financial expert, mathematician, or for virtue that is far above the average.

The Right to Good Reputation.—(a) Those who are absolutely unknown (i.e., both as to their identity and their character) have no right to reputation, since reputation attaches to one who can be named or described, and hence it is not defamation (though it might be rash judgment) to say that a stranger who passed on the street and was lost in the darkness must have been a criminal.

(b) Those who are known by sight or name, but who have not as yet shown what they are, have a right to a negatively good reputation, for a man should not be considered evil until his conduct has given ground for unfavorable judgment (see 1727 sqq.). It is not defamation to say about an unknown family that has moved into a locality that we do not know what kind of people they are, but it is defamation to say that they are likely undesirable.

(c) Those who are known in a place and who have already acquired a good name there have a right to a positively good reputation; for, if the reputation is true, it is a good which they have honestly acquired; if it is false, it is a good of which they are in possession, and possession itself is entitled to respect.

Sinfulness of Detraction.—The civil law does not generally punish slander if the slanderer can prove that his statements are true, but this does not make veracious defamation morally lawful. God detests and punishes crimes (e.g., fornication) of which human law sometimes takes no account. The harmfulness of veracious defamation is both public and private.

(a) Defamation Does Public Harm.—The peace and order of the community would be seriously disturbed, if it were lawful to attack reputations simply because one was persuaded that they were unfounded: the person detracted would be hampered in his official business and social relations, innocent persons would be blackened as well as the guilty, and the friends and relatives would suffer with the person detracted.

(b) Defamation Does Private Harm.—The peace and security of the individual would be uselessly assailed. Reputation is profitable both in spiritual and temporal ways, and it is therefore a ruthless act to rob a person of it, when he has done nothing in public to forfeit it and its possession by him is harmful to no one.

Right to True and False Reputation. There is, nevertheless, a difference between the right to a true and the right to a false reputation.

(a) Thus, the right to a true reputation is an absolute and universal right, one which does not cease in any case, for truth and justice demand that one should not represent as evil a person who is really good. This right applies to an extraordinary, as well as to an ordinary reputation.

(b) The right to a false reputation is a relative and limited right, one which ceases when the common good on which it rests no longer supports it (e.g., when it cannot be maintained without injustice). Moreover, there is no right to an extraordinary reputation, if it is based on false premises, for the common good does not require such a right, and hence it is not detraction to show that the renown of an individual for superior skill or success is built up on advertising alone or merely on uninformed rumor.

Sinfulness of Gossip or Criticism about Real and Known Defects.—(a) It is not unjust, per se, since it does not take away fame, that being non-existent. (b) It is sinful, if there is no sufficient reason for it, but not mortally sinful per se, since grave harm is not done to the reputation of one whose reputation is already bad. The sin committed is usually that of idle talk or of uncharitableness, by reason of the disedification offered the listeners, or the malice that prompts the speaker, or the sadness that is caused to the person gossiped about. Gossip is dangerous, since it prepares the way for detraction, as detraction prepares the way for calumny.

Moral Species of Defamation.—(a) Moralists agree that wrongful defamation is a sin against justice and charity. It violates justice, since it infringes a right which is not less strict than that of proprietorship over goods of fortune; it violates charity, since it is opposed to friendship and love of neighbor. They also agree that other species of sin can be added to defamation (e.g., infidelity, as when one denies that Christ was sinless, or blasphemy, as when one defames a Saint).

(b) Moralists disagree on the question whether certain forms of defamation are distinct sub-species or only degrees of one lowest species. Some hold that detraction and calumny are distinct species, because calumny adds mendacity to defamation; others say that detractions about specifically different sins are distinct kinds of detraction (e.g., that it is one species of sin to say that a neighbor is a drunkard, and another species to say that he is a thief, and the reason is that the reputation for temperance is a different thing from the reputation for honesty, etc.); still others hold that defamation of parents and other immediate relations is a special form of defamation, as being contrary to piety. There are, on the contrary, theologians who reject all these distinctions and hold that the difference between defamations is only one of more or less, since all of them have the characteristic note of attack on reputation, which is one right. Hence, just as the stealing of a cow and the stealing of a cat are only greater and lesser forms of the sin of theft, so likewise calumny and detraction, etc., are only major and minor degrees of the sin of defamation (see 2012, 2013, 2115).

Species of Sins of Defamation.—Since the species of sins must be particularized in confessions, the question of the distinction between defamations has practical importance. The common opinion on the line of action to be observed seems to be as follows:

(a) the penitent is obliged as a rule in serious matters to tell whether his defamation was simple detraction or calumny. The reason for this, according to some, is the specific difference between these two sins; according to others, the reason is that otherwise the confessor cannot know whether the sin was mortal or venial, or what restitution is to be imposed. As to detraction of parents or superiors, it seems that the quality of the person detracted should be mentioned, if there was any incitement to disrespect or disobedience;

(b) the penitent is not obliged to mention the sins or defects he ascribed to the person he defamed. Nor should the confessor inquire about this unless it is necessary in order to know what was the gravity of the sin or what kind of reparation should be enjoined (cfr. 2013). Moreover, questions about what was said might easily lead to a disclosure of the name of the person defamed, and thus the confessional would be turned into a place of defamation.

The Numerical Multiplication of Defamations.—(a) They are multiplied when there are many sinful acts about distinct objects; for example, when Balbus calumniates Caius today as a thief and Claudius tomorrow as another thief, there are two calumnies (see 209).

(b) Defamations are multiplied when there are many sinful acts about the same object; for example, when Balbus calumniates Caius today as a thief and repeats the same calumny tomorrow, there are two calumnies. But if Balbus begins his story today and does not finish it till tomorrow, there is one calumny (see 214, 215).

(c) Defamations are multiplied when there is one sinful act about many distinct objects; for example, when Balbus calumniates by saying that the two worst thieves he knows are Caius and Claudius, there are two sins. But if Caius and Claudius are regarded as a unit (e.g., if they are the firm of Caius and Claudius), there is one sin. A like calumny would be that Caius came from a dishonest family (see 216-219). If Balbus calumniates Caius before ten persons, he does not commit ten defamations, it seems, but ten scandals, since the ten form a body in the matter of fame, but are individuals in the matter of example. If Balbus calumniates by saying that Caius has broken all of the ten commandments, there may be ten calumnies or but one calumny, according to the intention and the effect (see 217, 218).

The Theological Species of Defamation.—(a) From its nature defamation is a mortal sin, and hence the Apostle declares (Rom, i. 29, 30) that detractors are hateful to God. In the first place, it inflicts an atrocious injury on the public welfare, sowing everywhere hatreds, dissensions and disorders—so much so that detractors are rightly called an abomination to mankind (Prov., xxiv. 9).

(b) From the smallness of the matter or the imperfection of the act defamation may be only a venial sin. Criticism of others is a vice so widespread that almost all mankind (even pious persons) would be involved in continual mortal sins, were it not for the fact that sins of speech are frequently the result of ignorance, thoughtlessness, or sudden passion (James, iii. 2 sqq.), and that the things said are frequently of no great harm to the person criticized.

The gravity of the harm done by defamation is well expressed by St. Bernard when he says that defamation at one blow inflicts a mortal Wound on the person defamed, on the defamer himself, and on the listener.

(a) Thus, the person defamed is robbed and often irreparably of a good name, one of the most esteemed of possessions; he is deprived of many spiritual and temporal opportunities, and is frequently dragged down to social and moral ruin, and even to suicide. Scripture says that the tongue of the detractor has the sharpness of a razor, and it compares him to an arrow dipped in poison, and to a biting serpent.

(b) The defamer destroys his own good name, at least in the sight of God, for he defiles his own soul with guilt; he disgraces himself before others, since it is well known that defamation is the vice of those who feel themselves inferior or guilty. And, worst of all, his sin is seldom repented of or repaired by satisfaction, since the defamer is generally too proud, hateful, jealous or revengeful to acknowledge his error, or is so blind that the thought of the harm he has done and of the grave obligation of satisfaction never crosses his mind.

(c) The listener is scandalized and contaminated by what he hears, his ideals are shattered, his respect for virtue or religion is destroyed, and he is encouraged to continue the work of the defamer.

Comparison of Defamation with Other Injuries against the Neighbor.—(a) Defamation is less sinful than injuries to internal goods, and hence homicide and adultery, which are opposed to the good of the body and of life itself, are graver sins than defamation.

(b) Defamation is less sinful than injury to higher external goods perpetrated in a contemptuous manner, for defamation being secret does not add insult to injury. Hence, just as robbery is more offensive than theft, so is contumely more sinful than defamation.

(c) Defamation is more sinful than injury to lower external goods, such as lands and money, for fame along with honor approaches spiritual things on account of their relation to virtue, whereas wealth is of the order of corporeal things. Hence, the Scriptures teach that a good name is more important than great riches (Prov., xxii. 1), more enduring than thousands of vast and precious treasures (Ecclus., xli, 15).

It should be noted that the foregoing comparison is based on the nature of the sins compared, for by reason of circumstances the order given may be reversed; for example, a slight indignity is less serious than an outrageous calumny, the theft of thousands of dollars is far more sinful than the circulation of a ludicrous story that is harmful, but only in a slight degree, to the reputation of a neighbor (cfr. 220 sqq.).

Rule for Determining the Seriousness of Defamation.—The rule for determining whether the matter of defamation is serious or not is the amount of harm done by the defamation, and hence not one but several factors have to be considered.

(a) Thus, the defect ascribed to the neighbor has to be considered, for some kinds of defects (e.g., littleness of body or prodigality) are less disgraceful than others (e.g., dwarfishness of mind or soul or niggardliness), and it is more harmful to reveal one mortal sin than to reveal a hundred venial sins.

(b) The person defamed is to be considered, for imputed defects that are not harmful to one person may be harmful to another (e.g., the charge of being a toper might be considered praise among persons of gay or rough habits, but it would be regarded as disgraceful among serious and refined persons).

(c) The person who defames is also to be considered, for little attention is paid to the talk of some, but much weight is given to the slightest words of others. Indeed, some persons’ condemnation is equivalent to praise.

(d) Finally, the persons before whom the defamation is spoken are to be considered, for everyone knows that it is much more harmful and dangerous to speak ill of others before certain ones than before others (cfr. 1461, 1462).

The Harm Done by Reason of the Defects Revealed.—(a) If the defects are natural imperfections of soul or body that do not connote moral stain or turpitude, and if no great detriment is caused by revelation (e.g., to say that another person is deaf, hunchbacked, a beggar, or dense), disclosure is not in itself serious, or even sinful; for little or no harm is done, and the defects are of such a character that they can be readily discovered by observation. But if the defects are very ignominious or harmful, defamation is a grave sin (e.g., to say that a very distinguished person is illegitimate, or of a mixed race, or that his immediate relative was a criminal).

(b) If the defects are related to moral stain, but do not imply it, revelation of them is not a grave sin, provided no great loss is caused by it (e.g., to say that a person is scrupulous about himself, or has certain peccadillos or human imperfections). If a shortcoming is usually understood as a propensity rather than as a fault (e.g., quick temper, high-strung disposition, pride, closeness with money), there is little if any harm done by speaking of it. But if the defects mentioned are such as imply or insinuate actual moral lapses (e.g., to say that a person has a venereal disease and the cause is unknown, or that he has delirium tremens or morphinism, or is of a very passionate nature), the revelation is defamatory and more or less sinful.

(c) If the defects are moral, he who reveals them is guilty of sinful defamation. But the harm done by the imputation of moral guilt is greater in some cases and less in others. Some sins are more disgraceful from their degradation (e.g., carnal sins, see 224), and from this point of view it is worse to accuse a neighbor of gluttony or sexual irregularity than of pride. Some sins (e.g., solicitation, sodomy) are especially heinous in the eyes of the law and produce legal infamy, because they are more harmful to the public or more subject to public contempt (see Canons 2320, 2328, 2343, 2351, 2356, 2357). There are also some defamations that are less harmful to reputation, but more damaging to material prosperity (e.g., it is usually more hurtful to the prospects of a person in business to be charged with incompetency, dishonesty, or carelessness than to be charged with religious indifference or impurity). Finally, there are gradations in the malice of the same kinds of sin (see 197), as in the angry thought, the angry word, the angry deed, in tipsiness and drunkenness, in occasional and habitual lying, etc.

Is it sinful to narrate the secret faults of another, if at the same time one tells of his repentance and amendment?

(a) If the infamy remains in spite of the remarks about a change of life for the better (as is generally the case), the narrator is guilty of sinful detraction. Thus, it is very harmful to one in an exalted position if it is given out that he was at one time bibacious, but succeeded in thoroughly curing his appetite. The same principle applies to those who praise in one matter and detract in another (e.g., by stating that a person is very learned, but also very dishonest).

(b) If the infamy does not remain, because the atonement is so extraordinary as to make the hearers think little or nothing about the fault, the narrator is not guilty of sinful detraction. Thus, it is not detraction to narrate that a saint was so grieved over a lie he told that he did lifelong penance for it, or that a person who was once lukewarm—a thing that is quite common—has in later years become fervent in an uncommon degree. But the stigma that attaches to uncommon sins or carnal sins is hardly overcome by the mention of repentance, unless the person spoken of is already long dead or is one from whom very little is expected.

The Harm Done by Reason of the Person Defamed.—(a) Serious faults are sometimes attributed to certain persons without serious sin, because, on account of the life led by these persons or the notoriety they have already achieved, they suffer no serious detriment when defects like to those already known are charged against them. Thus, if it is well known that a person keeps company with a fast set or consorts with a tough gang, he suffers little if one reveals that he uses profanity, gambles, drinks to excess, etc.; and if it is known that a person has these vices, he is not harmed much by mention of a particular instance or by the additional report that he has been arrested for cheating and disorderly conduct. But the case is different if defects unlike those already known are charged (e.g., if one says of a person known as a liar that he is also a thief), unless the person spoken of has so black a name as an all-around cheat that no new crime charged to his account can give a deeper dye to his reputation.

(b) Light faults or acts that are not sinful in themselves are sometimes matter of grave defamation when spoken of certain persons, namely, when so much is expected from these persons that even minor defects are serious blots on their fame. Thus, to say that a layman is a confirmed liar or loves the opposite sex might be only a venial sin or no sin at all, but the same statements about a grave cleric would be seriously defamatory.

Defamation supposes that the party who is injured is in possession of a good name. But it is possible that the same individual who enjoys a good name in one place or time, has a bad name in another place or time. Hence, a number of special cases on defamation present themselves for consideration.

(a) Thus, there is the case in which a person who has a good name here is juridically infamous elsewhere; that is, he has lost his good name elsewhere through a final and valid sentence, conviction, or confession made in a public trial (see Canon 2197).

(b) There is the case in which a person who has a good name here is actually infamous elsewhere, that is, his crime is known to so many persons there that it is morally impossible to keep it secret or excuse it.

(c) There is the case in which a person who has a good name now was in bad repute formerly; that is, his bad name of the past has been forgotten or has been obliterated by many years of good living.

Meaning of the Expression “Infamous in a Certain Place.”—(a) The place referred to is either a closed community (e.g., a monastery, a college, a family) or an open community (e.g., a village, a neighborhood, a parish, a town, a city); (b) the notoriety referred to is either universal (i.e. known to all the community), or general (i.e., known to the greater part of the community), or sufficient (i.e., known to so many and such talkative persons that the whole community will shortly be made to share in it). A crime known only to one or two, or to a small circle of Christian-living persons, is not notorious.

Number of Persons Who Are Required for Sufficient Notoriety.—(a) Some authors assign certain definite figures for this purpose—for example, in a closed community of thirty or a hundred members a fact is notorious if known to seven or fifteen; in a neighborhood of forty persons, if it is known to eight individuals from different families; in a village whose population is one thousand, if it is known to twenty here and there; in a town of five thousand people, if it is known to forty here and there.

(b) Other authors hold that no invariable rule can be given, but that in each case the matter has to be determined by a prudent judgment based on the character of the crime, the quality of the guilty person and of the persons present at the time, the publicity of the place, etc. Thus, if the crime was committed in some central spot from which news was quickly disseminated, a smaller number of spectators would make a deed notorious in the surrounding territory.

Publicity of Commission or Report.-Actual infamy or disrepute is produced either by the publicity of the crime or by the publicity of the report.

(a) Thus, a crime has publicity in its commission when it was done in a public place (e.g., on the street, in a public room) or in a private place but before a considerable number of persons, or when its indications were publicly given (e.g., by a confession, by maintenance of a suspected woman in one’s home), or when it was submitted to public notice or judgment (e.g., the acts of one in public office, the words of one who delivers a public address, the deeds of one who boasts about them).

(b) A crime has publicity in its report, when it is widely known, whether due to the talk of the people, or to presumptions or suspicions.

Revelation about a Person Who Is Juridically in Disrepute Elsewhere.—(a) This exposure is not contrary to commutative justice, according to the common opinion, for the condemnation deprives the criminal of his right to fame (as regards the matter in which he is found guilty) in all places, and it is often to the interest of the public to know who has been convicted of crime elsewhere. Exception should be made for the case in which a trial is conducted secretly in order to spare the reputation of the condemned, as when a corporation expels one of its members after a hearing and an unfavorable vote (see 2057).

(b) This revelation is contrary to charity when it deprives a person without reason of the good fame which he possesses and which he would not otherwise have lost; for we should love our neighbor as ourselves. Example: Balbus served a term in jail in the town of A, on account of drunkenness. He then moved to the distant town of B and by his good conduct built up an excellent reputation. Claudius from A arrives and maliciously spreads around the news that Balbus had been once in jail for drunkenness. Claudius sins gravely against charity.

Revelation about a Person Who Is Actually in Disrepute Elsewhere.—If the person in question will in all likelihood soon lose the reputation he has here, the following cases must be considered:

(a) if the disrepute is based on the publicity of a misdeed, the revelation is not opposed to commutative justice; for he who sins publicly thereby resigns his right to reputation as regards all those persons and places to which knowledge of his delinquency is likely to arrive. The revelation is against charity, however, if there is no sufficient reason for it; but since the news would be soon brought hither from other sources, no great harm is done and no serious sin committed by the revelation;

(b) if the disrepute is based on public rumor and the rumor is unjust, revelation, according to some, is opposed to commutative justice, since it is nothing but a continuation and extension of the original injury. Others hold that, unless one knows the rumor to be false, revelation is not unjust in this case, since, as is supposed, the revealer was not the author of the rumor, and those to whom he spoke would have learned it shortly even without him. Of course, if the person about whom the revelation is made suffers some considerable damage by reason of the early loss of his good name, the person who makes the revelation unnecessarily is guilty of serious sin. And rumor should never be represented as an established fact.

If the revelation is made about one who is actually in disrepute elsewhere, but who is in little danger on that account of losing the good name which he has here, opinions differ regarding the extent of the guilt.

(a) Some hold that revelation in this case is a grave sin against charity, since in a serious matter it saddens a neighbor, and thus violates the rule of love to do unto others as we would have them do unto us; and others add that it is also a grave sin against justice, if the party spoken against is solicitous about his fame, since it deprives him without reason of a great good to which he is entitled on account of undisturbed possession.

(b) Others hold that this revelation is not a grave sin, either against justice (since the right of the community to know about crimes that were committed elsewhere prevails over the right of the individual) or against charity (since charity does not oblige under grave inconvenience).

(c) Others again distinguish between different cases, Thus, some say that, if the crime in question is one that is very detrimental to the public (e.g., murder, treason, white slave traffic, scandalous impurity), the opinion under (b) is true; whereas, if it is one that is not of that character (e.g., drunkenness in a private person), the opinions under (a) are true. Some also distinguish in the case of non-pernicious delinquencies between those that are notorious elsewhere by reason of the public way in which sin was committed and those that are notorious only on account of rumor; in the former case, they say, the manifestation is not unjust, for, although public good does not call for it, the guilty person himself has forfeited his right by the public manner in which he sinned; but in the latter case it may easily be unjust (see previous paragraph). The mere fact, however, that a fault which contains no threat to the public welfare was committed in a public manner does not seem to be a sufficient reason for manifestation (e.g., when it will injure a man in earning a living or in supporting his family), and we believe that one who speaks of such a fault without necessity sins against charity, if not against justice, and that the sin is often mortal.

Notoriety in a Closed Community.—Notoriety in a closed community is not absolute publicity, and hence the conclusions just given on absolute publicity do not apply to closed communities.

(a) Thus, if a fault is actually notorious in a closed community, the members may speak about it to one another, if there is any sufficient reason for this. Hence, if the majority of the members of a religious house know about a fault that has been committed there, it may be divulged to one who is in ignorance about it for his instruction or warning. Similarly, servants in a house may tell other domestics about faults which are commonly known in the house.

(b) If a fault is notorious in a closed community but not outside, the members as a rule may not speak or write about it to outsiders without injustice, for generally speaking there is no reason arising from necessity or utility for such a revelation. Moreover, the community itself suffers in repute from such disclosures, since outsiders will be impressed with the thought that the community has wicked members or is lax, and that there is a lack of unity among them. To carry stories from one monastery or house to another (even of the same Order) is a form of detraction to outsiders, according to St. Alphonsus.

Revelation about a Person Formerly in Disrepute.—When the revelation concerns one who was in disrepute formerly, but who has a good name now, either because his crime has been forgotten or because he has lived it down, a distinction must be made between juridical and actual notoriety.

(a) If the former disrepute was juridical notoriety, the revelation of it is not unjust, since condemnation pronounced in a court of law gives the right to others to make the sentence known in any place or at any time; but more probably it is mortally uncharitable, if made without necessity, since it harms the other person or his family in the reputation which he has honestly recovered, thus depriving him of a good most useful to him and hurtful to no one else.

(b) If the former disrepute was actual notoriety only, the revelation is uncharitable, according to all, since it does not observe the golden rule of doing to others as we would be done by. Many hold that it is also unjust, since an obliterated crime is the same as an occult crime, which cannot be divulged without injustice (see 2067). Moreover, the person who has built up for himself a new reputation has a right to it, and by the revelation of the old reputation this right is infringed, inasmuch as his present good name is also lost or made useless. It should be noted that the common good sometimes makes exceptions, and thus it is not forbidden to historians to make revelations about happenings that throw a new and unfavorable light on the youth or earlier years of persons no longer living (see 2072 Sqq.).

Case in Which the Name of the Person Defamed Is Not Given.—(a) If there is nothing to indicate the individual and no reflection is cast on a body to which he belongs, per se no sin is committed. Hence, if one says, “A certain person whom we shall call Balbus stole a sheep,” there is no defamation in the narrative, even though a real happening is described. Similarly, if one says that in the city where he is speaking there are many criminals, or that even among his numerous auditors there are doubtless some who are living in mortal sin, there is no defamation.

(b) If there is something to indicate the individual meant, or if reflection is cast on a body to which the individual belongs, sin is committed by the remarks. Hence, if the narrative about Balbus and the stolen sheep went on to describe incidents so that the hearers could easily perceive that Balbus was a person known to them, this person would be injured in his fame. Again, if one states that in a certain city which one names 90% of the married people are addicted to drunkenness, or that the party who was guilty of some scandalous act was a member of a Religious Institute, harm is brought directly upon individuals or damage is done to societies. It is true that an organization is not really discredited by the misdeeds of one of its members, but in popular opinion very often the disgrace of one is the disgrace of all.

Whether from damaging there arises an obligation of restitution? A damager is called one who injures another's right, harming his neighbor in his goods, yet without becoming richer thereby. Wherefore damaging is a source of restitution diverse from the preceding ones. "Whoever damages someone seems to take away from him that in which he damages him; for damage is so called from the fact that someone has less than he ought to have.... And therefore a man is bound to restitution of that in which he damaged someone." St. Thomas, 2. 2, q. 62, aa. 4, 6; Inst. l. 4, t. 3; C. B. 249 ff. Whatever act of man is the cause of damage to another obliges to reparation of that damage.

Nor indeed does only one's own act oblige to restitution, but also the act of another person or of a thing, of which someone has custody and care. And thus the proprietor of a house which falls because of defect of due conservation or construction is held concerning the damage which comes from it. The proprietor or custodian of an animal which causes pauperies is also held concerning damage. If a damaging act of this kind was committed with the intention of harming, it is called deceit and delict; if without that intention, from imprudence and negligence, it is called quasi-delict and juridical fault. C. I. 1151 ff.; C. G. 1382 ff.; C. H. 1089, 1092, 1104, 1105, 1902 ff.; C. A. 1293 ff.; C. B. 823 ff.; St. Thomas, 2. 2, q. 62, a. 1, ad 2; aa. 4, 7; E. M.

What are the conditions required for restitution from damaging? - In order that a damaging action induce an obligation of restitution, by the law of nature a threefold condition is required, namely that it be unjust in itself, and not only in intention; that it be an efficacious cause of the damage, that is, that it really influence the damage of another; and that it be theologically culpable; that is, that it be unjust truly, efficaciously, and formally. It is proved. It must be an action unjust in itself; otherwise there is no place for real reparation of justice. C. A. 1305. It must be efficaciously unjust; otherwise, since someone is not the author of the damage, he is not bound to repair the damage.

It must be theologically culpable; otherwise an obligation in conscience of repairing damage inflicted by injury by no means arises, since injury was lacking in the forum of conscience. - Hence very probably juridical fault alone, excluding theological fault, does not suffice for compensation of damages. But if juridical fault also induces theological fault, then indeed it obliges to compensation of damages. Fault, namely grave. Cf. 1329. - Cf. 1072, 1073, 1077; Ithur., Cas. 27, nn. 2, 3, 5, 12, 13; L. 550, 551, 556, 570, 572, 613; C. A. 1299, 1300, 1306 ff., 1331; C. B. 276, 273, 280, 823, 827, 833 ff.

If several slight damagings were made, and were made to the same person, they become a grave sin, whether because of the intention of grave damage, or because of moral union with a brief interval, or because of conspiracy with others, and the damage inflicted must be repaired under grave obligation. But if small damages were made to different persons and inflicted separately, and not all coalesce together by moral union by reason of distance of time, slight quantity, etc., grave sin is not present, since no one is gravely damaged, and the one damaging does not become rich from another's property, nor consequently is there grave danger of damage for society, and therefore there is no obligation under grave obligation of reparation of the damage.

What must the damager restore? - The unjust damager is bound to restore: 1. The whole equivalent of the thing damaged. Thus, e.g., if someone culpably burns another's house, he must repay its full price to the owner. 2. The whole equivalent of damages foreseen besides the damaging of the thing, if any have come from it. Hence, e.g., if a workman is compelled for some time to omit his customary work because you destroyed an instrument necessary to him, you are bound to compensate him not only concerning the value of the instrument, but also concerning ceasing profit. Concerning ceasing profit: "such damage need not be recompensed equally, because it is less to have something in potency than to have it in act." St. Thomas, 2. 2, q. 62, a. 4. - C. L. 2392.

Whether he is bound to restitution who indeed inculpably placed the cause of damage, but afterward did not prevent it, although he could have prevented it? - Resp. Affirmatively. The reason is that each person is bound from justice to prevent, if he can without great inconvenience, lest his action harm his neighbor; therefore he is also bound to prevent lest the evil following from his action persevere.

Hence 1. he who inculpably set fire under another's house, when he adverts to the danger of fire, is bound from justice to prevent it, if he can. 2. Likewise a pharmacist who by error sold poison for medicine must from justice warn the buyer. 3. Likewise, he who by error said something grave against the reputation of another is afterward bound, once the error is known, to correct it; and, if he does not do so, he sins gravely and is obliged to reparation of all damages which come from this. - L. 564.

Whether damage must be repaired which follows from a cause culpably indeed placed, but already retracted when the damage is inflicted? - Resp. Affirmatively, at least if that damage was determined and foreknown in species. Thus, e.g., if someone voluntarily gave poison to another, and afterward cannot impede its effect, however much, repenting of the deed, he greatly wishes to do so, he will be bound to repair damages arising from the homicide. The reason is that he who placed the cause of the damage always continues to influence it efficaciously.

Whether damage must be repaired which is indeed accidental, but inflicted while giving oneself to an illicit work? - Resp. Negatively, because that damage is not voluntary, since it was not foreseen even confusedly. Nor does it matter that the action was illicit; for this pertains nothing to the reason of justice. Thus a cleric who, giving himself to hunting against the prohibition of the Church, kills a man instead of a wild animal, is no more guilty of injustice than a layman who would have done this. Indeed, damage inflicted accidentally does not have to be repaired even if it happened on the occasion of an unjust action, because it does not have connection with that action. Hence one is not bound to restitution who kills Titius, whom he by no means saw nor knew was present, while he was directing a gun at Caius. - Lugo d. 8, nn. 72, 82; L. H. A. 39.

Whether he is bound to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example? The first and more probable opinion denies, because one who gives bad example is not the cause of the damage, but a mere occasion. For an evil action does not of itself tend to excite others to imitate it. Therefore the other damagers are determined altogether from themselves to inflict damage. - The second opinion affirms, because one furnishing bad example, with foresight of contagion, can be held as an efficacious cause of damage; since in some way he influences the determination of those who inflict the damage. And experience teaches that men are moved more by examples than by counsels, according to the axiom: Words move, examples draw. - L. 537; l. 2, n. 45; Antoine p. 2, c. 3, qu. 15; Billuart diss. 8.

Whether you are bound to repair damage coming to someone on the occasion of your unjust action, e.g., if you stole and the theft is imputed to him? - Resp. Negatively, certainly, if you did not foresee that damage. For you are not the theologically culpable cause of such damage. Resp. Negatively also, more probably, although you foresaw this damage. The reason is that your action, even with foresight of the damage posited, is not its cause per se, but only accidentally. Indeed, probably it must also be denied even if you deliberately acted so that your action might be imputed to him, because this action is always only the accidental cause of the damage, and not the per se cause; for it did not by its nature efficaciously influence that damage. For a depraved intention does not cause that work to be unjust which of itself is not unjust with respect to the third party. - Resp. Affirmatively, if the circumstances ever were such that a true connection would be given between them and grave suspicion concerning another. Likewise, altogether affirmatively, if someone used those means which would offer the gravest suspicion for accusing another, e.g., if he put on his clothes to commit homicide and threw them away stained with blood, etc. - L. 635, 636; La Croix 157.

What if an external work is posited indeed from an evil intention, but, although damage can occur, it is not truly probable that it will follow? There is controversy among the gravest theologians. But the state of the question will be clearer from the following examples, namely: 1. Someone places poison or a snare in a place through which his enemy passes very rarely, but with the intention that he be killed if by chance he passes. 2. A physician employs all the diligence to which he is bound, but does not wish to employ greater diligence out of hatred, so that the death of the sick man may follow. It is asked: whether these are the cause of an unjust death which perhaps will follow, if in fact it follows? There is a twofold opinion. The first, more common opinion denies. The reason is that on one side the external act is not unjust, since the mere possibility of another's damage must not be attended to in human affairs; on the other side, the external act is not made injurious by reason of the intention, since intention does not influence the efficacy of the cause, or the danger of damage. For then it must be called a merely accidental cause, and the depraved intention does not change its nature. Hence neither is he unjust in fact who digs a well on his own land so that the neighbor's well may dry up. Who certainly would say that the director of a railroad is bound to restitution because he does not send scouts before individual carriages to see whether some person is in the middle of the way and perhaps is to be killed by the passage of the carriages, although he omits this from the depraved will of killing all if perhaps they are there? But the second opinion affirms. The reason is that in the aforesaid cases homicide is certainly against justice and is not excused except insofar as involuntary. But the intention renders it voluntary. For the reason why, excluding the intention, it is not voluntary is that the one placing the cause is not judged to will the effect efficaciously, since the effect is not probably connected with the cause; but the intention supplies that connection and causes the one acting to be its true cause. For the intention of the one acting contributes much to the character of a cause. Therefore. But mere foresight of the possibility of damage in the aforesaid cases would not suffice for the character of injury; rather, the intention of procuring it is also required. - Lessius l. 2, c. 9, n. 133; Lugo d. 8, n. 75; L. 584; C. A. 1305, 1311.

Whether one who thinks from invincible error that the damage inflicted by himself is much less than it truly is, is bound to restore it all if afterward he recognizes the true price, e.g., if someone throws into the sea another's jewel worth 100, while he believes it to be worth only 10? - He is probably bound to restore only in proportion to the known damage, because damage which is invincibly unknown is not judged voluntary. For restitution from a thing unjustly accepted rests on material injury alone; but restitution from unjust damaging rests on formal injury. Moreover, injury is estimated from the mind of the one injuring; and therefore, if by chance an excess was not foreseen in the damage inflicted, it is not imputed. But the opposite does not follow if, on the contrary, an excess is falsely thought, because then damage is not in fact, but in opinion; and damage is not made by opinion, but by action. Nevertheless there will be an obligation of repairing the whole damage if, when suspicion of a greater price arose at least confusedly, the whole damage becomes voluntary. L. 613.

Whether he is bound to restitution who impeded another from the attainment of some good? - Resp. Affirmatively, if the neighbor has a strict right to obtaining the thing, e.g., in the case of competition for some public office. For then someone either himself commits injustice against him, or becomes an accomplice in the injustice done to him by another. - If the neighbor does not have a strict right to obtaining the thing, one must distinguish. It must be affirmed if it is impeded by unjust means, e.g., by fraud, calumny, fear, etc. But it must be denied if it is impeded, e.g., by means just in themselves, e.g., persuasion, requests, etc.; or even if it is impeded by unjust means, but the thing cannot be given without sin, as e.g., if by lies a wife impedes her husband from squandering the goods of the family.

The reason is that in the first case a most true injury is done to another; in the second no right of another is then violated, neither in itself nor in the means; nor is injury had in the third case, since there is an obligation of not giving. For anyone has the right of impeding an illicit act, and therefore commits no injustice in relation to him who for that reason is deprived of some good, although, to impede that evil act, he uses an unjust means. Nor indeed can someone claim any right, whether proximate or remote, to that good. L. 582, 585, 587, 588, 614, 632, 633; H. A. 61; St. Thomas, 2. 2, q. 62, a. 2, ad 4; Gousset 970-972.

Whether you are bound to restitution if from an evil intention, e.g., from hatred, yet with means of themselves unjust excluded, you turn another away from the attainment of a good to which he does not have a strict right? Resp. Negatively, more probably. The reason is that no injury is inflicted on the neighbor. For evil intention does not suffice for injury, but an external action is required which is the true and efficacious cause of unjust damage. - L. 584, 585; Elbel 108.

Whether he is bound to restitution who doubts whether he himself was the cause of damage? - It is common among doctors that in doubt whether the cause was placed, or whether damage was inflicted, he is held to no restitution. The reason is that the fact is not presumed but must be proved. If the doubt turns on the influence of the action into the damage which certainly occurred, there is controversy. The first opinion, very probable from St. Alphonsus, affirms, because, once the fact of the action is posited, the action is presumed to have been the cause of the evil, if it was truly apt to inflict the damage. The second opinion, from the same Holy Doctor, "also sufficiently probable, denies... and St. Thomas seems to hold this, 2. 2, q. 62, a. 7.... The reason is that general rule, that no one is obliged to restitution unless such an obligation is altogether established, namely that he himself was the true cause of the damage." L. 562. Likewise it seems to be denied if someone probably judges that he has already sufficiently repaired damage certainly inflicted by himself; for the condition of the possessor prevails, and no one is to be despoiled of his own thing unless there is a morally certain obligation. And this also holds in the case of a debtor who probably judges that he has already fully satisfied the debt. For although the obligation was certain beforehand, nevertheless now it is doubtful. - L. 547, 575, 579, 706. Cf. here 1469.

Whether you are bound to repair damage which you inflicted on someone from error, while you intended to harm another, e.g., if you burn the house of Caius, which you think is the house of Titius your enemy? - There is a twofold probable opinion. The first, which several and grave theologians hold, affirms, because in that case all conditions required for urging restitution are present, namely an unjust action, an efficacious cause of damage, and theological fault.

The second, "with Leander, Molina, Tamburini, Lugo, La-Croix... denies that he is bound to restitution, provided he did not intend, not even confusedly, to burn the house of another than Titius.... The reason is that for the obligation of restitution which arises from damaging, principally made because of injury, formal injury is required; nor does material injury suffice, and only effective injury without intention, just as neither does merely affective injury suffice when the external work has not been completed, as this would be. For Cardinal de Lugo speaks thus: 'When I intend to inflict damage on Titius, with the intention of bringing injury to him alone, anyone else being excluded, if afterward through invincible error I injure Caius, the injury with respect to Caius is not formal and affective, but only material and effective, and merely accidental, since I did not have the intention of injuring him, neither in particular nor in general; and therefore I am not bound to restore to him damage which arises from injury. It does not avail to say that for the obligation of restitution it is enough to intend some unjust action and execute it; for the cited doctors respond that for the burden of restitution by reason of damaging, an action materially unjust alone does not suffice, but in addition an action formally, or voluntarily, injurious toward the other who is injured is required. But this voluntary injurious action is lacking in our case, since the action happens beyond the intention, and it is not formally injurious to anyone; for if I intend only to injure Titius, and exclude anyone else, then I voluntarily offend no one: not Titius, because in fact he is not injured; not the other, because with respect to him my action is altogether involuntary, and therefore the error is about the substance.' Thus St. Alphonsus, 629. But soon showing the distinction between damaging and theft, the Holy Doctor adds: 'For in theft it is not attended to whom he wished to do injury, but whether he truly wished to accept the thing while the owner was unwilling, since the obligation of restitution because of damaging seems to differ in this from restitution because of theft: for in damaging injury to the person of the owner is principally intended, and his damage accessorily; but in theft unjust profit is principally intended, and injury of the owner accessorily; and therefore error of owner, in the case of theft, seems to be about a quality, but in the case of damaging about the substance.' Certainly injury is done to a person, and if it is not done to a person, what injury can there ever be?" Cf. L. 628.

To what is the damager bound in goods of the soul? - Whoever, by fraud, lie, force, fear, or another unjust means, or being obliged from office, by his action strives to inflict on someone spiritual damage, whether of the natural order, e.g., by depriving him of memory, reason, etc., through poison, a potion, etc., or of the supernatural order, e.g., by inducing him into sin, into error against faith, etc.; or strives to deprive him of some good, whether of the natural or supernatural order, e.g., lest he learn a science or art, lest he enter religion, etc., is bound from justice to remove that unjust means. Moreover, he must repair damages which come from that unjust means, provided those damages can be repaired in the same order. The reason of both is that anyone has the right that damage not be unjustly inflicted on him, or that he not be impeded from attaining a good. L. 660-662; St. Thomas, Quodl. 5, a. 25; C. A. 1299, 1300.

But if someone not obliged from office, and without fraud, lie, force, fear, or another unjust means, by his action is the cause to another of some spiritual damage, whether supernatural or natural, or of privation of some good, he is bound from charity to impede, if he can, with greater or lesser inconvenience to himself according to the greater or lesser danger of another's damage, and according to the greater or lesser good of which the other is deprived, lest his action harm his neighbor. For if he does not do this, now his action, the cause of another's damage, which from the beginning was perhaps altogether inculpable, when he now adverts to the subsequent damage, becomes altogether culpable. And if from the beginning it was culpable, he ought not persevere in the fault. Yet he is held to no reparation of damages from justice, e.g., if someone by bad example alone or depraved persuasion, without force and fraud, induced another to sin; or if someone gratuitously, without any obligation of pact or office, and fraud and deceit excluded, badly taught another from mere negligence or ignorance. - L. 660.

To what is the damager bound because of unjust homicide? - Homicides or mutilators more probably must restore nothing precisely for life, member, etc., because these are not estimable by price. But they are bound to compensate all other temporal damages of which homicide was the efficacious cause. L. 7, de His qui effuderint, Dig.; C. A. 1325 ff., 1329; C. B. 823; L. 626.

Resolutions: A homicide or mutilator is bound to compensate damages which are inflicted on the injured person himself before his death, such as expenses made in curing the illness, and whatever during that time and for that cause he lost from interruption of work, omitted business, impeded profit, etc.; unless these are condoned by the injured person himself, they must be paid, in his absence, to the heirs, whoever they may be, to whom the real rights of the killed man pass. L. 630, 631; G. 725; C. A. 1325, 1326, 1337. He must compensate damages necessarily coming to the wife, children, or parents of the killed man. For the unjust homicide is bound to restore also to those to whom by his unjust action he per se inflicted damage. But to those whom the killed man ought to have and could have supported, with attention to age, health, etc., by his unjust action he per se inflicted damage. Therefore. But since the injured right of these persons is not the right of the killed man himself, the latter cannot remit it to the killer. From the very reason adduced, the quantity of compensation to be made by the killer toward such persons is clear. Namely, speaking of itself, he is bound to restore as much as the killed man was bound and able to furnish for their necessary sustenance, and that owed to their state, according nevertheless to the hope of that sustenance. To the wife, etc., not to others whom perhaps the killed man supported, because damage happened to them accidentally. Sustenance: therefore if they are in need, and insofar as and as long as they are in need. Lugo d. 11, nn. 81, 82, 88; L. 630, 631, 632; C. A. 1325-1327, 1329; C. L. 2384 ff.

He must likewise compensate all other damages to the wife, children, or parents of the killed man, for whom the killed man was going to gain and probably was going to leave goods, according to the estimation of this frustrated hope, if namely the killer foresaw this; for by unjust means they are deprived of the attainment of these goods. Cf. 1367. He must compensate whatever damages, and of whomever, which follow necessarily, per se, and unjustly from the death of the killed man; such are damages of creditors. For by killing, he unjustly and with the greatest force impedes the debtor from satisfying the creditors. Cf. 1367. Nor can the killed man condone these, because he has no power of disposing over the rights of others. But others simply deny this obligation, Lessius l. 2, c. 9, dub. 26; others oblige him only in the case in which the one injuring foresaw the damages of creditors, which certainly is altogether necessary; and others assert that the homicide is not bound to restore to the creditors of the killed man, even if the homicide foresaw their damage, provided he did not intend it. Yet that direct intention, whether it is present or absent, does not change the nature of that externally unjust action toward the creditors, and of the most efficacious cause of their damage. Indeed, if the killing, considered objectively, is not a per se cause of their damages, it certainly is not made such by this extrinsic intention. L. 584, 613, 633, 634, 636; C. B. 843 ff.

Note: Although a homicide is punished with capital punishment, the obligation of restitution passes to the heirs. C. A. 1337. For these succeed both into the rights and into the real debts of the deceased. Yet several judge the heir excused from restitution if compensation of damages is not sought, because then the parties are presumed to condone. L. 631, 705.

Whether he is bound to anything who kills another in a duel? - Resp. Negatively, more probably, whether he was the challenger or the challenged. For the one himself who was killed, by consenting to the duel, placed by his consent the whole necessary and sufficient cause of those damages. Except unless he induced the other by force or grave threats, and thus as though coerced him. L. 638.

To what is the damager bound because of stuprum and fornication? Two things must be distinguished: simple injury and damage. Simple injury is compensated by satisfaction; and this is owed both to the woman who unwillingly suffered stuprum, and, regularly speaking, to her parents; if namely it has become known to the father, and the daughter still remains in the father's family, although she is no longer under paternal power. By satisfaction: namely by asking pardon, showing honor, with humble submission of oneself. L. 641. For merely natural damage, or for lesion of bodily integrity and loss of virginity, nothing, at least more probably, must be restored, because that damage cannot be compensated by money. L. 640. Even for temporal damage which has followed from shameful intercourse, nothing, except the education of the offspring, must be restored when the woman consents to the solicitation; neither to the consenting woman herself, because injury is not done to one knowing and willing, nor to her parents, because no strict right of theirs is violated. Except nevertheless if the fornicator himself reveals the crime, and damage comes to the woman and her parents from the defamation; this certainly must be repaired. C. A. 1328; Gousset 1012; L. 641.

If the violator has violated the girl by force, fraud, deceit, threats, he is bound to repair every damage coming therefrom to her or her parents, because he is the efficacious and unjust cause of this damage. L. 641; C. A. 1328; C. B. 825, 847. Damage must be repaired, namely if the woman, from lost virginity, either can no longer marry, or cannot enter except into worse marriage. But damage from this is present if the stuprum is revealed, by no means if it remains hidden; and therefore restitution then ceases. But if it is revealed by the fault of the woman, although she herself suffered force, she must impute the damage to herself. But if it is revealed by the fault of the man, he is bound to compensate the damage, although the woman consented and had already been corrupted. But if it is revealed by the fault neither of the man nor of the woman, and the woman was unwillingly oppressed, the man took upon himself the danger of damage and is bound to restitution. L. 640, 641, 642, 646.

Restitution consists in this: that the man either dower the woman or take her as wife. Dower: namely if she has no dowry; or, if she has an insufficient one, that he increase it so that the woman can marry equally well. Take her: if namely the woman wishes, lest injury be added to injury if she is coerced. But it belongs to the woman to choose either to accept dowry or to enter marriage; for she cannot be compelled to accept dowry, since the damage inflicted cannot otherwise be repaired more to equality than by marriage entered into; and if the woman wishes marriage, the man, of himself, is bound to marry her in the forum of conscience, especially if he promised marriage, or if the girl whom he seduced conceived thereby, to impede scandal and to secure the lot of the child. Lugo, Resp. Mor., l. 1, d. 44. Yet, because coerced marriages often have an evil outcome, hence doctors commonly teach that it suffices if the man dower the woman, so that she can marry equally well; and, they say, the man is bound to marriage only if he cannot dower the woman, provided he can do this without far greater damage to himself, as, e.g., if the woman is of far inferior condition, if great scandal is feared from the marriage. But dowry is owed only to the woman whose interest it is to marry, and begins to be owed from the time when it is sought. Wherefore, if it has not been sought, and the woman marries equally well or dies, nothing is owed. - L. 641, 642, 644, 648, 649; l. 6, n. 104, 851; Lugo d. 12, nn. 8, 9, 11, 12, 14, 16, 17, 18; Resp. Mor. l. 6, d. 19; C. L. 2391. Each is bound to recognize and feed the son born, because he is the son of each. If the son cannot be recognized without infamy, and the woman suffered force, the man alone is bound to feed him, C. A. 1328; but if the woman makes gain from her body, she alone is bound to feed the son. But in default of the violator, the mother must undertake care of the son, although she admitted no fault, because she is the mother. But then she preserves recourse against the corruptor, who is bound to compensate her for all expenses which she made on the occasion of the offspring.

But if the woman consented to the sin, according to Roman Law the mother is bound to feed the infant for three years, and afterward the father must provide for him. According to C. I. and C. G. nothing is expressly established. Yet jurists recognize that parents are equally and in solidum obliged at least to feed and educate legally recognized children. This is drawn from C. I. 138; C. G. 203. According to C. A. 139, 141, 143, 163, 166 ff.; C. H. 165; C. B. 1707-1709, 1715, the father is principally obliged, and in his default the mother. But even if the children have not been recognized, nevertheless by natural law the same obligation falls on them. - Carrière 1371; Gousset 1016. According to C. B. 1717, an inquiry of paternity is had, and in cited arts. 1707-1709, 1715, there are obligations, toward the son, of the mother; and, toward the son and mother, of the father. Likewise according to C. He. 302 ff., the mother and son have the right of inquiring concerning the father; and the same obligations of the father toward the son and toward the mother are declared, and in the case also in which he promised marriage to the mother before intercourse. According to C. A. 163, 164, unless he confesses, the father is presumed to be he who had intercourse with the mother at a time apt for conception of the offspring. And the proof is full if his name has been duly consigned in the books of the baptized, with the testimony of the pastor and godparent added. According to C. H. 134 ff., the father and mother are bound to recognize a natural son when some writing of theirs is undoubtedly present, by which they expressly recognize their paternity or maternity; and when, as regards the father, the son is in continuous possession of the status of natural son of the required father, proved by direct acts of the same father or of his family; and when, as regards the mother, the fact of childbirth and the identity of the son are fully proved. A recognized natural son has a right not only to food, but indeed also to a hereditary portion which is owed to him according to the same Code, art. 840. Yet a recognized natural son is of a distinct condition with respect to a legitimated natural son. For the latter succeeds in the first place, and the recognized son in the third place after descendants and after ascendants, art. 807.

To what is the damager bound because of adultery? - Whatever has come to an illegitimate son, as though legitimate, from a false cause must be restored. Hence "there must be restored for the expenses which the husband makes in the food of another's offspring. Likewise what for that cause he gives to him, or leaves after death, which indeed must be rendered to the other sons or coheirs. Likewise if the consanguineous relatives of the husband, thinking the son to be legitimate, give or leave something to him with that in view. For all these things they do and spend from a false cause, and the unjust deceit of the adulterer." Lugo d. 13, n. 2, 34 ff.

On the contrary, what comes in any way to the adulterine son from the mother and maternal consanguineous relatives, by donation, legacy, testament, must not be restored. But both the adulterine son himself and his adulterous parents must restore. The adulterine son must restore from the thing unjustly accepted, and therefore he must restore those things which he still has, or their equivalent in which he has been unjustly made richer. - The parents must restore from unjust damaging, and therefore they must compensate the damage which follows per se and as it were necessarily from the adulterine son being held as legitimate, namely the expenses made by the husband, or by his ascendants, for feeding, sustaining, and educating the adulterine son; and those things which the adulterine son received from them, not from other consanguineous relatives, by gift, testament, succession.

What he received from other consanguineous relatives as brother or nephew is accidental. - Lugo d. 13, nn. 37, 40; L. 659. But the parents must restore, namely 1. the adulteress, unless she was unwillingly oppressed, by leaving more to the legitimate children, by living more sparingly, by administering the family property more diligently; 2. the adulterer, unless the mother could easily have removed the son. But each is held in solidum, if the crime was voluntary on each side, because the whole must be imputed to each.

If the adulterer extorted the consent of the woman by force or grave fear, he alone is held to repair the whole damage. Lugo d. 13, nn. 9, 13; Less. l. 2, c. 10, dub. 6, 7; L. 659; C. B. 826, 847. But the son must restore if it is certain and evident to him that he is adulterine. Likewise his parents must restore if it is certain and evident that he was conceived from adultery. - Lugo d. 10, n. 17.

Restitution must be made to those who expended or gave, and, when they are deceased, to their heirs; restitution must likewise be made to the legitimate children injured because of the adulterine son, if the illegitimate son accepted the inheritance together with the legitimate ones. L. 659. A cause justly excusing from the aforesaid restitution is if it cannot be made without grave danger and damage to life, liberty, or reputation. Lugo d. 13, n. 58; L. 653. If the crime has become known to the husband, they must compensate the personal injury by asking pardon, by signs of sorrow and submission, and by other things of this kind. Ithur., Cas. 6. If no offspring followed, no restitution is to be made. For then by adultery no damage is inflicted, but only simple injury to the person.

What in doubt whether the offspring is the husband's or the adulterer's, or from such adulterer rather than from some other? Resp. To the 1st: More probably, the adulterers are held to nothing, because the damage is not established. L. 657; Lugo d. 13, n. 17, and many others against others who say restitution must be made proportionally. Resp. To the 2nd: The first opinion holds that each adulterer is held to restitution proportionally. The reason is that the damage is certain, and it is established that it was done by one or the other; moreover, each is an efficacious and unjust cause of the uncertainty which prevents compensation from being demanded determinately from one. La-Croix l. 3, p. 1, n. 704; p. 2, n. 337; Lugo n. 19; Roncaglia c. 2, q. 3. The second opinion denies, because a certain burden cannot be imposed where the obligation is doubtful. Nevertheless, except if the second adulterer adverted, at least implicitly, that by his sin he would be the cause of uncertainty. Likewise, if the adulterers perpetrated adultery by common counsel, or if neither was ignorant that the woman had already been known by another. L. 658. - Elbel, de Actib. human., 161 ff.; cf. here 1369; C. B. 830.

Whether the woman is bound to reveal her crime if she cannot repair the damage in another way? - Resp. Negatively, generally speaking. The reason is 1. because commonly this revelation cannot be made without great infamy for the woman, and often without danger of death, or perpetual hatred, or other grave evils. 2. Because, even with such a means employed, she could repair the damage only with difficulty, especially since the son is not bound to give faith to the mother. Cf. 1380. They commonly except if the mother is of ruined reputation, etc. L. 653. "To the woman who, while her husband is ignorant, conceived offspring from adultery, although she fears to confess this to her husband, penance is not to be denied.... But fitting satisfaction must be imposed on her by a discreet priest." C. Officiis 9, de Poenit. et remiss.; St. Thomas, Quodl. 5, a. 16.

Whether the son is bound to believe the mother even swearing that he is illegitimate? - Resp. Negatively, because from law and common sense no one is bound to believe one witness, even of very proved faith. Yet it is otherwise if besides the testimony of the mother evident indications are added, e.g., the absence of the father for a long time. L. 654.

Whether, if adulterers or fornicators were wealthy, and sent the offspring to a foundling hospital, they would be bound to repay the expenses? - There is controversy.

The first opinion affirms. The reason is that foundling hospitals are instituted in favor of infants, not of parents; nor are their founders to be presumed to have wished to exempt the rich from paying expenses. Lugo d. 13, n. 3; Bouvier, de Restit., p. 2, art. 2; Carrière n. 1373; Rousselot, opusc. de Sexto Praec. - The second opinion denies, because those foundling hospitals were erected for all infants indiscriminately who are cast off by parents, whether they pertain to rich or to poor progenitors. Nor is it an obstacle that subsidies are furnished by the Government or Municipality for those little children, because these are generally attributed for abandoned little children, without attention to parents. In addition, hospices of this kind were instituted for this end, that illegitimate infants be freed from the danger of death, both eternal and temporal, to which they would be especially exposed unless they were received in those pious places. For how many impious and barbarous parents has fear of infamy driven either to procure the abortion of their offspring, or to inflict death on it? Moreover, the children of the rich no less than the children of the poor would incur such danger. St. Lig. 656, who thinks this opinion more probable.

To what are soldiers bound because of damage inflicted on the occasion of military service? - Soldiers are held to nothing by reason of damage in common action, unless the injustice of the war is established to them, because they are not formally unjust damagers. - But soldiers in an evidently unjust war are held concerning all damages which they inflicted by private action; and each is held proportionally concerning damages inflicted by the whole army, unless they were compelled to wage war from grave fear; for then they did not exercise influence into the whole damage either by real action or by common conspiracy. But commanders or Princes are held primarily and in solidum concerning the whole damage inflicted by the army, because they are truly commanding; or, if they did not command the damage, they were bound from office to prevent it. - Lugo, Resp. Mor., l. 6, d. 16.

Whether individual soldiers are held in solidum concerning the whole damage inflicted by the army, in default of others? - Resp. Negatively, more probably, because the individuals are not the cause of the whole damage, but only of a part. For individuals are neither the sufficient nor the necessary cause of the whole damage. Moreover, in practice they would be excused from absolute impotence.

To what are conscripted soldiers who are deserters bound? - They are bound of themselves to return to the camp from obedience or from legal justice. The common good itself of public security to be protected demands military service to be furnished by citizens. For society has the right of its own conservation, and consequently to the necessary means, so that it may be defended from internal and external enemies. Moreover, military force is a means altogether necessary for this. Wherefore military laws of themselves are altogether just, and citizens are bound to obey them. But it is clear that for this law of military service to be just, more soldiers must not be required than are necessary for the security of the republic; and if sufficient volunteer soldiers are present, others should not be compelled to military service, since this is not done without damage to them and their families. But clerics, religious, and sons altogether necessary for feeding a family are to be exempted from the law of military service.

There are some who hold that the law of military service is merely penal, and that soldiers who desert the army sin in nothing. But this is altogether false, since the necessity of the very existence and common good of civil society requires an army, and another more sacred obligation is also added from the oath to be furnished. L. l. 1, n. 147; l. 3, n. 616. Except: 1. If they would meet excessive danger to salvation, e.g., if means of confessing were not available, etc. 2. If returning, they would be punished with death, galleys, or other most grave penalties. 3. If the war is evidently unjust. But certainly deserters are held to no restitution whenever the law does not require others in their place, because they in no way injure commutative justice, since they inflict damage on no other person. But it would be otherwise if others because of them had to undergo the burden of military service.

To what are those bound who hired themselves for others and then deserted military service? - Of themselves they are bound to restore the price accepted to him from whom they accepted it, because there is lacking to them the reason for accepting the money, which is paid only because of the burden of military service. Yet this holds only where he who hired a soldier in his own place is exposed to the danger of undergoing military service. For with this danger excluded, although the deserter does not undergo the burden of military service, he freed the hirer from this burden of military service, which the hirer in fact intended in that hiring.

To what are those not yet enrolled in the military bound, who withdraw themselves from it without just causes? Hired soldiers who by contract and agreed wage have obliged themselves to military service are held by commutative justice to follow it. If they do not furnish it, they are held to restitution and reparation of damage. - Conscripted soldiers who corrupt magistrates or physicians so that they may be declared unfit by them are certainly held to restitution if others must therefore undergo military service in their place. For they are cooperators, as commanding, or counseling, or in some other way, in injustice; for magistrates and physicians are obliged from quasi-contract. Those who by lies, frauds, or prior mutilation deceive the magistrates, according to the more common opinion, are obliged to restitution. The reason is that other exempt young men have a strict right that such means not be employed with their detriment; and those required by lot cannot decline the burden of military service legitimately imposed on them without strict injury, since the law or lots established by law constitute a strict right, by requiring some and exempting others from military service. Bouvier, de Restitutione, q. 2, art. 2. But they say that they are not the cause, but only the occasion of the damage which those suffer, for the efficacious cause of the damage is the military law. But this is false; the law alone is not the cause of the damage. And certainly, if they had observed the law, others would not be conscripted; but the cause of the damage is at the same time the law and the fact of those conscripted against the law. Wherefore they are not held to restitution if by law all apt young men are assumed to military service, because then they themselves inflict damage on no one. But practically speaking, restitution often is not to be urged in the preceding cases, either because those who use the aforesaid frauds do not believe that they sin against justice and it would be difficult to persuade them, or because it is morally impossible to repair the damage inflicted. He who would betake himself to another country to evade military service, so that he might live there, would in no way sin, because while absent he would not be bound by the law of his homeland, since the law cannot be extended outside its own territory. But those already designated for military service who withdraw from it, or obtain exemption without true causes, if no one is to be required in their place by law, sin against legal justice; yet they are held to no restitution. Gousset 1002. Cf. here 234.

But whether it is opposed to distributive justice that only families which have sons fit for military service undergo this burden? Several affirm, and therefore they would then wish that another burden be imposed on rich families if they do not have sons fit for military service. But how can this be opposed to distributive justice, if certain families do not have sons fit for military service and therefore are exempted from this burden? Since this can happen in advance to any family, the condition of all is equal. Otherwise distributive justice would be injured not only as regards families not having sons fit for military service, but also as regards the young men themselves, of whom some are fit and others are altogether unfit for military service. And then, with military service removed, a nation certainly would not endure one day in its being, and would be absorbed by a more powerful nation which desires to extend its dominion. And, by the same reason, all taxes would also have to be abolished, because all would be unjust. For those who have nothing pay no tax.

657. • An unjust damager is he who injures another's right and harms the neighbor in his goods, yet does not thereby become richer.

A twofold fault is distinguished by which damage can be inflicted, namely theological fault and juridical fault. - Theological fault is that which includes an offense of God, that is, formal sin, whether mortal or venial. - But juridical fault is an omission of diligence from which damage comes to another, whether it is a formal sin or not. - St. Lig., n. 549.

But juridical fault, from the common interpretation of Roman Law, is either broad, slight, or slightest. Broad fault is the omission of diligence which men commonly are accustomed to apply in similar business. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to apply. The slightest fault is the omission of diligence which only the most prudent and most diligent are accustomed to apply. But this distinction of faults is not expressly commemorated in French law ¹.

¹ It is supposed, however, when for diverse circumstances of the thing the same code requires lesser or greater diligence. See art. 1137 and art. 1927, compared with 1928.

658. Principles. - I. An unjust damager is held to restore 1. the whole equivalent of the thing damaged; thus, for example, if someone culpably burns another's house, he must repay its whole price to the owner; 2. the whole equivalent of damages foreseen besides the damage of the thing, if any have come from it. Hence, for example, if a craftsman is compelled for some time to omit his customary work because you destroyed the instrument necessary to him, you are held to compensate him not only for the value of the instrument, but also for the ceasing profit.

The reason for this principle is plain from what was said, n. 532 and 626. For the injured owner must be made wholly unharmed. But for this it is not enough if the damager pays him the intrinsic price for the thing, when the other has suffered other detriments from the privation of his thing; since he would not recover all that he lost from the unjust damage. Nor is it an obstacle that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility received from another's thing, but from the damage inflicted.

659. • II. In order that a damaging action induce an obligation of restitution, by the law of nature, a threefold condition is required, namely that it be unjust, an efficacious cause of the damage, and theologically culpable; that is, that it be unjust truly, efficaciously, and formally.

1. Unjust. For the obligation of restitution necessarily supposes the strict right of another violated. But strict right cannot be violated except through an unjust action, or one opposed to commutative justice, according to what was said above, n. 532, etc.

2. An efficacious cause of the damage, namely 1. that the action influence the damage through itself, so that this damage is truly judged to follow from it; 2. that it can be imputed to such an agent. The reason for each is clear. For an action cannot be imputed to anyone unless it is his own; nor can the detriment of an action be ascribed to anyone unless his action was the true and efficacious cause of the detriment physically and morally.

But this happens when an action is posited which from its nature, or from the circumstances, has at least a probable connection with the damage. Hence 1. a merely occasional cause of the damage is not sufficient for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on occasion of a theft perpetrated by you, another is accused and condemned, you are held by no obligation of repairing his damage. Nor 2. is an accidental cause sufficient for restitution; for this is that which, considered in itself and with the circumstances attended to, does not have a probable connection with the event, and therefore must not be called an efficacious cause. Hence, if you hand a sword to Titius without probable foresight of his abuse of it, you are not guilty of injustice if he commits homicide with that sword.

3. Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless an injury was committed in the same forum; nor can conscience be bound by an obligation of repairing an injury which it itself did not bring about. Otherwise even sleepers and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. But there is no injury in the internal forum where there is no theological fault; for to injury there is required a will of harming at least indirect, or some foresight, at least confused, of unjust damage. Therefore, etc. - St. Lig., n. 551 and following; Hom. apost., n. 39 and 41.

660. • III. Nevertheless even from merely juridical fault there can be an obligation of restoring in conscience after the sentence of a judge. For a just sentence of a judge must be obeyed; otherwise laws would not provide for public security, and would be empty. But the sentence of which we are speaking is just. For that law is borne for the common good and tends to make men more cautious, lest they inflict damage on others. Besides, before every event it favors all citizens equally. Therefore no one can complain about it. Therefore, etc. Thus commonly. - Billuart, diss. 8, art. 4. - St. Lig., n. 554.

661. Questions. - Q. 1. Whether theological fault is required for inducing an obligation of restitution for damage inflicted on another's thing, which was destined by some CONTRACT, for example, of leasing, deposit, or loan, etc.?

Resp. There is a twofold probable sentence. The first sentence, which appears more probable, affirms absolutely that theological fault is required. The reason is that merely juridical fault does not suffice for inducing an obligation in conscience, as is clear from what was said above in principle II, unless a special pact has intervened. But concerning such a pact there is no proof at all; indeed it is not presumed that the contracting party wished in conscience, under grave obligation, to undertake so great an obligation with only juridical fault. - Thus Lugo, D. 8, n. 106. - Lacroix, n. 177. - Roncaglia; and St. Lig., n. 554, calls this sentence very probable ².

² Card. De Lugo, whom St. Alphonsus follows (ibid., n. 554), although he admits (De Iust., Disp. 8, n. 100) that even without theological fault there can be an obligation of repairing damages on account of slight or even slightest fault, whether this happens by force of an explicit pact among the contracting parties, or by authority of laws which establish the same by way either of legal penalty, or conventional penalty, or insurance, nevertheless denies with others (ibid., n. 102-104) that such an obligation, considered by natural law alone, is present. Indeed he adds (ibid., n. 106-110), from common sense, that neither is this the intention of the contracting parties, nor do the laws according to the common interpretation exact it.

Nevertheless he also adds other things (ibid., n. 110-113), by which it is shown that the practical conclusions of the second sentence do not oppose the preceding sentence. This indeed is nothing wonderful, because Antoine did not advert to it. For what good would you seek or expect from such a one, where solid doctrine and criterion are needed? And indeed, by what pact does Antoine (De Iust., Cap. 3, q. 5, Resp. 4) reconcile these two things, namely that someone omits the diligence due from the nature of the thing and from a pact at least implicit in guarding another's thing, and nevertheless is wholly free from theological fault? Therefore Lugo skillfully warns that, setting aside the case of forgetfulness or inadvertence, in which, short of theological fault, at least grave, there is no obligation of restitution in the forum of conscience before the sentence of a judge, it never happens that there is an obligation of restoring from juridical fault which is not joined with theological fault, and indeed with one equally grave for imposing the burden. The reason is sufficiently manifest, because negligence in the office undertaken of guarding another's thing is, from its genus, mortal fault.

Nor should you object that mortal sin is conceived with difficulty when the juridical fault is slight, and much more if it is the slightest. For slight or slightest juridical fault can have place when someone is held by force and nature of the contract to apply that diligence which is fitting to a business demanding more exact or most exact diligence, and which for that reason, with the nature of this business considered, can be called common, since it is commonly required for such a business. Therefore if the nature of the contract imposes the obligation of the most exact diligence, it is nothing wonderful that its omission imports grave guilt.

Thus indeed Card. De Lugo, whose doctrine St. Alphonsus both embraces and adorns with this encomium (Lib. 3, n. 552): Thus, he says, the most learned Lugo, who after St. Thomas can easily be called princeps among the other Theologians, and not rashly; since in discussing doubts this Author, often with no one going before him, places the sickle so to the root that the reasons which he himself brings forward can scarcely be solved.

The second sentence denies that theological fault is necessary in order that someone be subject to the burden of restitution, if you except the case in which the contract yields to the sole utility of one of the contracting parties, for example, of him who received the thing as a loan, etc. The reason is that when another's thing is granted to someone for his utility, equity demands that he guard it very diligently. Hence there seems to intervene an implicit pact by which the holder of the thing obligates himself to guard it with special care, or to repair the detriment which the thing could undergo from omission of this care. - Antoine, quest. 5. - Collet, c. 2, art. 4, etc.

662. • Q. 2. Whether theological fault is required for the obligation of restitution on account of damage inflicted on another in fulfilling an office, or in observing a QUASI CONTRACT? For example, if a physician from inculpable error has given a harmful remedy to the sick person?

Resp. More probably affirmatively, as in the preceding question. The reason is 1. because an obligation of restoring on account of merely juridical fault in an office, or in a quasi contract, cannot be proved either from natural law, or from positive law, or from the convention of the parties; 2. because such an obligation would be harmful to the public good; for thence it would happen that upright and God-fearing men would be kept away from undertaking the affairs of others, and also from public offices. - St. Lig., n. 555. ³. - Billuart, diss. 8, art. 7. - Lacroix, n. 184, and Antoine himself also, quest. 4.

³ St. Alphonsus namely, after Lugo (De Iust., Disp. 8, n. 93), holds as probable that these are held only from broad juridical fault, and grave theological fault.

But what the same St. Alphonsus adds (same, n. 555) with Laymann, that he who accepts a stipend is held from slight fault, signifies nothing except that this person is held to greater diligence; and therefore St. Alphonsus condemns him of grave fault if he does not apply this.

Yet the Doctors commonly except one case, says Lugo (ibid., n. 90), namely, they oblige to repair damage from the slightest fault, when someone professes himself to be most diligent and most skilled, and offers himself as such to someone seeking not a mediocre but a most diligent artisan. Yet he limits this doctrine unless he receives only the common stipend. But the reason of the resolution is plain from what was premised in the preceding Note.

Q. 3. Whether he is held to restitution who indeed inculpably placed the cause of damage, but afterwards did not impede it, although he could have impeded it?

Resp. Affirmatively. The reason is that each one is held from justice to prevent his action from harming the neighbor; therefore he is also held to prevent the evil following from his action from persevering. - Thus commonly. - St. Lig., n. 564.

Hence 1. he who inculpably set fire beneath another's house, when he adverts to the danger of fire, is held from justice to impede it, if he can; 2. likewise the pharmacist who by error sold poison for medicine must from justice warn the buyer; 3. likewise he who by error said something grave against the reputation of another is held afterwards, when the error has been known, to correct it; and if he does not do so, he sins gravely and is obligated to the reparation of all damages which come from this.

663. • Q. 4. Whether damage following from a cause indeed culpably placed, but already retracted when the damage is inflicted, must be repaired?

Resp. Affirmatively, at least if that damage was determined and foreknown in species. Thus, for example, if someone voluntarily gave poison to another, and afterwards cannot impede its effect, however much, repentant of the deed, he may wish it, he will be held to repair the damages coming from the homicide. The reason is that he who placed the cause of the damage always continues to influence it efficaciously. - Thus commonly ⁴.

⁴ Hence it happens that retraction does not even prevent this, namely that the effect afterwards perhaps following induces irregularity or some censure. Suarez had already adverted to this (De Peccat., Disp. 3, Sect. 4, n. 7), and Lugo afterwards (De Poenit., Disp. 16, n. 445) hands it down as the common sentence: However much, he says, the past will may in fact be retracted, still, if the effect of death afterwards follows, he who had given poison will incur irregularity or excommunication, according to the common sentence of nearly all, as if the will had not been retracted; because, namely, by that retraction it is not taken away that the effect followed as voluntary..., whence it absolutely denominates him a homicide; otherwise it would not render him irregular.

Nor is the reason valid which St. Alphonsus reports against this from the Salmanticenses (De Cens., Cap. 1, n. 155; Lib. 7, n. 40), namely that censures are not borne except against the contumacious; but he is not such who has already retracted the evil will. For it is answered that the contumacy of will which is required for incurring censures is that by which someone knowingly and willingly transgresses the law, not the lack of retraction before the ultimate effect; for a censure does not punish the sin of an evil will persevering up to the consummation of the effect, but the sin of a will inflicting death through the positing of a cause, although it was expedient and wisely provided by the Church that a penalty of this kind not be incurred unless the effect followed, lest, namely, on account of the uncertain event of the crime, the censure be uncertain, and lest it happen that one be regarded as excommunicated on account of homicide who afterwards was detected as not guilty of homicide, since death had not followed.

Q. 5. Whether damage must be repaired which has indeed been inflicted by accident, but while applying oneself to an illicit work?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even in a confused way. Nor does it matter that the action was illicit; for this pertains nothing to the account of justice. Thus a Cleric who, while applying himself to hunting against the prohibition of the Church, kills a man instead of a wild beast, is no more guilty of injustice than a layman who had done this. Indeed damage inflicted by accident need not even be repaired, even if it happened on the occasion of an unjust action, because it has no connection with that action. Hence he is not held to restitution who kills Titius, whom he did not at all see nor know to be present, while he was directing a gun at Caius. - Thus very commonly. - Vogler, n. 170. - Lugo, D. 8, n. 72 and 82. - St. Lig., Hom. apost., n. 39.

664. • Q. 6. Whether you are held to repair damage which you brought upon someone from error, while you intended to harm another; for example, if you burn the house of Caius, which you think is the house of Titius your enemy?

Resp. It seems that it must be affirmed. For in that case all the conditions required for urging restitution are present, namely an unjust action, an efficacious cause of damage, and theological fault. Nor should you say that your action is not unjust relatively to Caius, whose damage you did not will; for you intended to destroy that thing, wholly determined. But by destroying it you undertook the burden of repairing that same thing. But it matters nothing whose it may be; for the question is not about the name, but about the thing. Therefore the error does not affect the substance of the act, but something merely accidental. - Thus commonly, as St. Lig. admits, although he dissents. - Vogler, n. 202. - Bonacina. - Sanchez. - Busemb., etc.

Some nevertheless deny with St. Alph., n. 629, namely Lugo, D. 17, n. 75. - Lacroix, n. 200 and following. - Their reason is that the action was not voluntary toward the damaged person, since it proceeded from inculpable ignorance of his right. But from what has been said this reason seems to have little force ⁵.

⁵ ** The VV. (p. 923 in note) object that the opinion of St. Alphonsus rests on this unshaken principle: In order that you be held to restitution, it is required and suffices that your damaging action be at once affectively and effectively, or formally and materially, unjust; if either of these is lacking, the obligation of restoring ceases.

Resp. St. Alphonsus (Lib. 3, n. 556), with Busembaum, thus defines and distinguishes material and formal injuriousness: Damaging injuriousness is twofold, namely material, as, for example, when someone destroys, accepts, or retains another's thing in good faith, that is, judging probably that this is licit for him, or that it is his own; formal, by which someone destroys, accepts, or retains another's thing in bad faith, that is, when he knows or can and ought to know that this is not licit for him and that the thing is not his own. See Less., Laym., Bonacin. But, so that we may insist on the example which both St. Alphonsus (Lib. 3, n. 629) and the VV. use, whoever burns and destroys the house of a friend, thinking that it is an enemy's, certainly does not fail to know that the house which he destroys is another's; and this is true even if it is not the house of him whose he believes it to be. Therefore knowingly and willingly he burns and destroys a thing which he knows is not his own. But from the definition this is not material but formal damaging injuriousness.

But the argument which is commonly brought against this (see St. Alph. and the VV. in the cited places), namely that from the killing of a friend who was thought to be another, namely an enemy, deceit is absent, because in no way did you intend to kill Paul the friend; indeed rather you would in no way have killed him if you had known that he was Paul the friend, this argument, I say, Molina had already anticipated thus (Tom. 4, Tr. 3, Disp. 30, n. 5): To the argument of the contrary opinion, he says, the consequence must be denied. For although that homicide did not have deceit with comparison to Paul, nevertheless he had deceit as regards that killing, insofar as it was the killing of a certain man, whom, beyond the estimation of the one killing so unjustly and with deceit, it happened to be Paul. But it is enough that that homicide was committed simply with deceit.

Molina (ibid., n. 2) confirms this response from L. Eum qui 18, § 3, De iniuriis, where it is read thus: If an injury is done to me by him to whom I am unknown, or if someone thinks me to be Lucius Titius, when I am Caius Seius, that which is principal prevails, namely that he wished to do an injury to me; for I am certain, although he thinks me to be other than I am, and therefore I have the action for injuries. But Molina adds: Here you see that the fact that the one bringing injury upon me thinks me to be another man in number than I am does not take away his fault, nor excuse him from penalty, because in reality he intends to do an injury, and does it with deceit.

But he had first explained the matter thus (ibid.): In that killing of Paul two things must be considered. One is the unjust killing of a man; but the other is of this man in singular, suppose Paul... But that killing, insofar as it has the account of the unjust killing of a man, was deceitful, because it was done from the intention of committing homicide concerning that man. But it is by accident that that killing does not have the account of deceitful homicide because it terminated at this man in singular.

It is confirmed and declared with the same Molina (ibid.): When, he says, in some delict there is knowledge of the delict joined with invincible ignorance of some circumstance which adds to the delict either gravity or a diverse species, then that ignorance, just as it excuses from the fault which results from that circumstance, so excuses from the penalty which corresponds to the circumstance. But just as this ignorance does not excuse from fault for that part of which knowledge is present, so neither can it excuse from the corresponding penalty and consequent burdens.

And hence it is plain how far that which St. Alphonsus (l.c.) replies after others has force: It is answered, he says, that this proceeds in the external forum, where the presumption of knowledge of the injured person stands against the one injuring, to whom belief is by no means given if he asserts that he wished to offend another. For in the external forum it is not a presumed delict that is condemned and punished, but a delict perpetrated in the unjust killing of a man, whoever this may have been. Indeed it so far departs from the true that the forum relies on such a presumption of knowledge and takes no account of an error of this kind, that the laws expressly establish the contrary. Thus (L. Illud 3, § 4, ff. de iniuriis): If someone struck a free man, while he thinks him his own slave, he is in such a case that he is not held for injuries. And again (L. Si cum servo 4, ff. same title): If, when I wished to strike my slave with a fist, I unwillingly struck you standing next to him, I am not held for injuries. Therefore even the external forum takes account of this error. Yet the distinction between the preceding and this case Gotofredus indicates very well in a note: For, he says, my intention was of applying myself to a legitimate thing, that is, of punishing a slave. And Molina had gone before (l.c., n. 3), saying: He who thus intended to strike his own slave intended to do no injury, but was using his own right, wishing to punish his own slave. But truly it cannot be said that he used his own right or did not intend to do an injury, who wished to kill or strike an enemy, or wished to burn the house of his enemy. But whoever, knowing that he inflicts a damaging injury by his act, inflicts it with a wholly free will, surely takes upon himself the consequences of his action, which are certainly formally unjust.

It could easily be shown here by what route both Tamburini and Sporer, and some others after them, were driven sideways by certain arguments sought merely from some parity, which indeed is very easily detected as limping. But these arguments cannot be suitable to a brief Note.

665. • Q. 7. To what is he held who indeed inflicted grave damage, but with slight fault, for example, from defect of advertence, etc.?

Resp. More probably he is held to nothing. For he cannot be obligated either under grave or under light obligation: 1. not under grave obligation, for a grave obligation has no proportion with slight fault; 2. nor under light obligation, because a light obligation has no proportion with a grave thing. - Thus St. Lig., n. 552. - Lugo, D. 8, n. 56. - Vogler, n. 109. - Lessius. - Roncaglia, etc.

Others, however, oblige him under grave obligation to repair the whole damage. - Others indeed to the whole, but under light obligation. - Finally others to some part only, according to the proportion of the fault. But these sentences seem to introduce the greatest inconveniences.

666. • Q. 8. Whether he who inflicted grave damage through several venial faults deliberately committed is held under grave obligation to repair that whole damage?

Resp. 1. Affirmatively, if the damage was inflicted on the same person, although the damager did not sin gravely. The reason is that he is held to repair the whole damage committed voluntarily and freely. But the whole damage was freely inflicted, and besides is grave in the hypothesis; therefore that whole damage ⁶ must be repaired under grave obligation. - Vogler, n. 124 and 126. - Lugo, D. 8, n. 69, etc.

⁶ St. Alphonsus nevertheless warns (Lib. 3, n. 553) that it suffices for avoiding mortal sin that only that small matter which completes grave matter be restored, as Sanchez, Lessius, Vasquez, etc., more probably hold.

Resp. 2. But more probably negatively, if minute damages were inflicted on diverse persons. The reason is that on the one hand no one suffers grave damage, and on the other hand the damager does not become rich by another's thing ⁷. Hence the present case differs from the similar question related above, n. 630, because a thief becomes rich from minute thefts, but not a damager.

⁷ It has already elsewhere been noted that the depravity of theft does not consist in this, that someone becomes rich from another's thing, but that he becomes rich unjustly. But this injustice resides in the violation of another's right, which is present in the same way both if someone becomes richer from the violation of another's right and if he does not become richer, because, for example, either he immediately consumes, or loses, or destroys the thing stolen, or inflicts damage while taking nothing to himself. And since the violation of another's right carries with it the obligation of repairing that same right, this is present and must be present both if the violator became richer from it and if he did not become richer. Since these things are so, as regards the present matter it ought to be evident that he who has harmed several by minute damages in such a way that the collected matter of all the damages together must be judged grave is in absolutely the same condition and therefore is bound by the same obligation of restoring, both if he has been made richer from the matter of the several thefts, and if he has by no means been made more rich, since either he at once consumed what was gradually stolen, or harmed others while stealing nothing for himself. Therefore if any obligation of restoring is present on account of minute damages inflicted gradually on several by thefts from which someone has been made richer, the same obligation must be said to be present even when from the inflicted damages no utility has accrued to the damager. For absolutely the same reason prevails in both cases.

Q. 9. Whether one who thinks from invincible error that the damage inflicted by him is much less than it really is, is held to restore all that damage if afterwards he recognizes the true price; for example, if someone throws into the sea another's gem worth 100, while he believes it to be worth only 40?

Resp. Probably he is held to restore only pro rata of the known damage, because damage is not judged willed which is invincibly unknown. - St. Lig., n. 615. - Elbel, n. 90. - Vogler, n. 189. - Carrière, n. 1151, against others.

Nevertheless there will be an obligation of repairing the whole damage if at some time, on account of a suspicion of greater price arising at least in a confused way, the whole damage becomes voluntary.

667. • Q. 10. Whether an owner is held to repair damage brought upon the neighbor by his animals?

Resp. 1. Affirmatively, if from theological fault he neglected to watch over the animals. For each one from natural right is held diligently to guard his animals, lest they inflict damage on others, just as he ought to take precautions lest detriment come to the neighbor from his own actions.

Resp. 2. But if theological fault has been excluded, he is indeed not held before the sentence of a judge, as is plain from principle II, n. 659; but he is certainly held when sentence has been pronounced, as is clear from principle III.

Q. 11. Whether he is held to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The first sentence, the more probable one, denies it, because he who gives bad example is not the cause of the damage, but a mere occasion. For an evil action does not through itself tend to this, that it should excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflict the damage. - St. Lig., n. 537 and l. 2, n. 45. - Salmant. - Laymann. - Sanchez. - Lugo, etc.

364. After the things said concerning injuries concerning the goods of the body, we must now treat of injuries concerning the goods of the soul. Now the principal goods of the soul are: (a) reputation, or the good estimation which we enjoy among others, which is injured in two ways: internally by rash judgment, but externally by detraction or defamation; (b) honor, which consists in the acknowledgment of our excellence, and is offended by contumely; (c) truth, to which are opposed lying, when what is false is said, and violation of a secret, when truth is revealed which ought to have been kept silent.

466. Principle: In order that the damager be bound to restore, three conditions are required simultaneously: that his action (under which name the omission of a due action also must be understood) be unjust, an efficacious cause of the damage, and theologically culpable.

1. The damaging action must be unjust, that is, a violation of the strict right of another, whether in a thing or to a thing; otherwise, there would not be an injury properly so called, nor therefore an obligation of restoring. In truth, if the action is opposed only to charity, equity, or another virtue, it can indeed be gravely sinful, but it does not require the reparation of a right which in fact was not violated.

(A) He is not bound to restitution who, while he uses his own right, harms others: e.g., he who by legitimately trading is the cause why other merchants sell less; or he who, fleeing from enemies, tramples another's crops underfoot; or who by persuasions and counsels persuades another not to make a testament in favor of some person; likewise he who digs a deep pit on his own property, into which a stranger falls.

(B) On the contrary, he who by unjust means, namely by force, fraud, lying, or unjust detraction, impedes another from attaining some good to which this other has a strict right, is bound to restitution; thus the advocate who impedes a creditor from obtaining payment of some debt; the heir who prevents the notary (notaire) from writing the testament which the dying man wishes to make in favor of another; the merchant who harms the affairs of the neighbor by intercepting his letters, or by spreading calumnies against him; likewise he who by calumnies impedes a superior from conferring a benefice or office upon someone worthy, who otherwise would have been selected: for although this one does not have a strict right that he be selected, he does have a strict right not to be excluded from this office by unjust means.

467. (C) The obligation of restoring of itself does not arise from distributive justice, because, although the public good demands that offices and benefices be distributed to the more worthy, candidates do not have a strict and rigorous right to obtaining these offices; hence their right is not strictly violated.

Yet there are cases in which the violation of distributive justice accidentally obliges to restitution, namely when the strict right either of individuals or of society is injured. Now it is so:

(a) In a competitive examination: namely if some competitor is unjustly judged by the examiners as unworthy, while in truth he is worthy, he is deprived of his strict right, and therefore place is given to restitution; yet, since not all the worthy are chosen by superiors, the competitor is deprived of a strict right not to the office itself, but to the hope of obtaining it; and therefore restitution in this case will be lesser. - Likewise, if a limited number of competitors is admitted into such or such a school, examiners who unjustly count as worthy one who in truth is not worthy deprive one of the competitors of the strict right which he had of entering the school, and under this head are bound to compensate the damages to him.

But the superior who, among the worthy, does not select the more worthy, does not seem to be strictly bound to restitution, because the more worthy one, although to be preferred to the others both from equity and from the public good, does not have a strict right that he be selected, unless however this has been determined by some law.

468. (b) In the distribution of burdens, e.g., of taxes. Those who knowingly and willingly burden some citizens too much and others less are bound to restitution, because they inflict damage upon certain citizens, or upon the State, according to the various rights which have been injured.

(c) In the distribution of offices. If some superior (president, governor, commander, etc.) knowingly and willingly confers certain offices upon those who are altogether unable to exercise them, by that very fact he is the unjust cause of the damage which arises from this either to society or to individuals; for by choosing such men, he could and ought to have foreseen that these damages would arise, and from his office he is bound to impede them; thus, e.g., if someone were to choose as physician or surgeon of an army one who is altogether unfit for this office.

469. 2. The damaging action must be an efficacious cause of the damage; for this two things are required: that damage was truly inflicted (for a damaging intention does not suffice); that it followed from the action as from its own cause. For he alone is bound to repair damage who is truly the author of the damage; but no one can be called author except he who, whether physically or morally, effects the damage or has influence upon it, or in other words, who is truly the efficient cause, whether total or partial, of that damage.

470. Hence he is not bound to restitution who is only the occasion of damage; for an occasion is not a true cause, but only that upon the placing of which the true cause acts.

Thus, e.g., Peter kills John, and Paul, who is thought to be the author of this homicide, is seized and condemned; Peter, by killing John, is not the cause, but only the occasion, of Paul's death; for the true cause of this death is the judge, who condemned Paul from insufficient motives. - But, if Peter purposely used Paul's garments or weapons so that Paul might be accused of John's killing, he truly is the moral cause, at least partial, of Paul's death, because he used unjust means to deceive the judge; and therefore he is bound to restitution. - But what if the same Peter indeed foresaw and willed that Paul be condemned, although he did not use unjust means to deceive the judges? Certainly he sinned gravely against charity, indeed against justice by an internal affection, namely by desiring that the judges condemn an innocent man; but whether he violated justice externally, so that he is bound to restitution, theologians do not agree; some equate this case with the preceding and answer negatively; but others, more probably, as I think, affirm: for by killing John, he foresaw and willed Paul's condemnation, and, although the judges are the principal cause of the unjust condemnation, he can be held as a cooperator, insofar as he unjustly placed an action from which Paul's death would follow.

471. Nor is he bound to restitution whose action was only a condition sine qua non, or that without which the true cause cannot act.

Titius, e.g., returns to Sempronius a gun, which the latter abuses for killing Caius; an action of this kind could be a condition without which the homicide would not have been committed, but not the true cause of it, which is nothing other than the malice of Sempronius. But otherwise it would have to be said if Titius had furnished the gun to Sempronius for this end, that the latter should kill Caius; for then he would be a partial cause, or cooperator, of the homicide.

472. An action which is only a cause by accident must be held as an efficacious cause; but because the damage cannot be foreseen as probably going to follow, then the action of the agent does not have a moral connection with the evil effect, since the third condition, or theological fault, is lacking.

Thus he who takes away from a miser a thing of slight value, without being able probably to foresee that the miser will die of sadness because of this, is only a cause by accident of his death, since the true cause of this is the depraved affection of the miser; nor therefore is he bound to restitution of the damages arising from the death; - but otherwise, if he foresaw and intended this effect, because then he is an unjust cooperator in the death. Likewise, he who in a remote place lights a fire, which a wind unexpectedly risen casts into crops, is only a cause by accident of this conflagration; otherwise, if he lit the fire when the wind had already risen, so that he could have foreseen the conflagration.

473. Therefore, for judging whether some action is an efficacious cause of damage, attention must be paid to the natural connection between the action and the damage inflicted. If the agent employed means suited to inflicting the damage, he truly is the efficient cause of this damage; but if he did not employ means suited to inflicting it, he is not its efficacious cause. - As regards the influence of intention upon injustice, see n. 288.

474. 3. The damaging action must be culpable. But fault can be twofold: theological, or moral, and juridical. The former is that which is done with advertence on the part of the intellect and consent on the part of the will; - the latter, i.e., merely juridical, is the omission of diligence required by civil laws, which nevertheless, on account of inadvertence or indeliberation, is not imputable before God. Hence any external or internal causes which remove the free voluntary, e.g., ignorance, indeliberation, force, fear, etc., excuse from theological fault; while from juridical fault only those legal causes excuse which can be proved in the external forum, such as defect of reason, coercion, fortuitous event, etc. With these things posited:

475. (A) With natural law considered, apart from contract, there is no strict obligation of repairing damage except from theological fault. For (a) in order that we may be bound by the moral obligation of restoring, the damaging action must proceed from us not only as from a physical cause, but also as from a moral and free cause; but if theological fault is not present, the action does not proceed from the free will, but from a fortuitous event, or from imprudence of which we are not conscious. (b) Moreover, the obligation in conscience of repairing damage, even apart from theological fault, is not necessary for the security of dominion; for the moral obligation of employing common diligence always remains, and this suffices for providing for this security. Indeed such an obligation would be harmful; for it would give place to many anxieties, and thus not a few would abstain from acting, lest perhaps they incur the obligation of repairing damages inadvertently inflicted.

Yet I said, apart from contract, explicit or implicit; for if a pact has intervened concerning repairing damage, in whatever way the thing perishes, this must be stood by, even in conscience, since a pact of this kind is legitimate; e.g., if a maidservant promised that she would pay damages from a fortuitous event; if the thing perished while someone was in culpable delay.

476. (B) Civil laws which decree an obligation of repairing damage from merely juridical fault oblige in conscience, but only after the sentence of the judge. - It is explained: (a) they oblige in conscience, because they are just, since they favor all citizens equally, and render men more vigilant lest they inflict damage upon others; - but after the sentence of the judge, for, on the one hand, it is too hard that someone should of his own accord condemn himself to the reparation of damage which morally is not imputable to him; and on the other, the purpose of the law is sufficiently obtained if the damager from merely juridical fault is bound to repair damage after the sentence of the judge.

(b) Yet, even before the sentence of the judge, charity obliges to the reparation of that damage which is certainly owed from civil law, when the injured person asks this, and moreover cannot have recourse to the judge without grave inconvenience, e.g., without expenses burdensome to him.

Corollaries.

477. Restitution on account of damage inflicted must be made to equality; and therefore the unjust damager is bound not only to restore the price of the thing destroyed, but also to compensate all damages which effectively and culpably followed from his action; thus he who culpably burns another's house must pay not only its price, but also the expenses which the owner incurs under this head, until a new house has been built or procured. The reason is that restitution is an act of the virtue of justice, which requires that there be rendered to the neighbor, to equality, whatever is owed to him from strict right.

Therefore he who has inflicted grave damage with grave fault is bound under grave sin to repair the whole damage.

478. But if damage is inflicted from light theological fault, a distinction is needed:

(A) If the lightness of the fault arises from lightness of matter, it is certain that restitution must be made under light sin.

(B) If the fault is venial from imperfection of advertence or consent, more probably, with natural law alone considered, there is no obligation of restoring grave damage inflicted; e.g., if a servant from venial negligence left the doors open, from which it happened that a grave theft was committed; - if from venial negligence death is inflicted with a gun. For such an obligation cannot be imposed under grave sin: because the obligation of repairing great damage is something grave; but a grave obligation cannot arise from a light delict, since there ought to be proportion between the delict and the penalty. Indeed, according to some,¹ this obligation cannot be imposed under light sin; for there ought to be proportion between the gravity of the obligation and the matter of this obligation; but it seems more probable, from the common sense of honorable men, that the obligation of repairing the whole damage must be imposed under light sin.

¹ Thus Lugo, disp. VIII, n. 56; St. Alphonsus, n. 552 with the authors alleged there.

Yet not a few theologians² probably say that restitution must be made according to the proportion of the fault, and therefore that a light part of the damage must be repaired under light sin.

² Laymann, lib. III, tr. III, c. 6, n. 4; Carriere, n. 1156.

In practice, the damager is not to be compelled to restitution before the sentence of the judge, but only exhorted to compensate the damage in the better way in which it can be done, by arranging the matter with the injured person.

479. (C) If the fault is venial, although fully deliberate, because grave damage was inflicted through several venial acts, a distinction must be made:

(a) If small damages have been inflicted upon the same person, and are joined by moral union, there is a grave obligation of restoring; for the damager is bound to repair the whole damage deliberately and unjustly committed by him; but in this case the damage inflicted is something grave, and the gravity of the obligation is proportioned to the gravity of the matter; therefore under grave sin he is bound to repair the grave damage.

(b) But if light damages have been inflicted upon diverse persons, so that no one has suffered grave damage, more probably the obligation of restoring is only light; for, since no one has been gravely injured, no one can under grave sin compel the damager to reparation; moreover, since from this damage he has not become richer, he is not bound to restore under grave sin by reason of detention of another's thing; and thus there is a difference between a damager and him who has committed small thefts.

480. (A) He who by an inculpable or lightly culpable action has posited the cause of another's damage is bound to impede such a cause from producing its effect, provided he can effect this without relatively grave inconvenience; otherwise he is bound to restitution, and indeed under grave sin, if the damage is grave.

Thus, e.g., a physician or pharmacist who inadvertently prescribes or furnishes poison, and afterward notices this; - he who inadvertently casts fire into a heap of hay is bound, if it can be done, to extinguish the fire; he who from error gravely injures the reputation of the neighbor, etc. For each one is bound by equal right to abstain from an unjust action, and to retract this action once posited, if it can be done; otherwise, he truly intends and perpetrates the evil effect which follows from it.

But if the damage cannot be impeded without one's own relatively grave inconvenience, there is a sufficient reason for permitting the evil effect. For judging about the relative gravity of the inconvenience, this must be compared with the damage which the neighbor is going to suffer.

481. (B) If someone culpably has posited the physical cause of some damage, and afterward has retracted the evil will before the whole damage is produced, he nevertheless is bound to restitution of the whole damage actually inflicted, if in fact he did not impede it; for he who voluntarily posited the physical cause of damage, however much he afterward grieves, is truly the efficacious and culpable cause of the damage, and is bound to repair it.

Thus he who has given poison to another, although afterward repentant he furnishes an antidote, but uselessly, truly is the cause of death; likewise he who, wishing to burn a house, has applied torches to the house, even if he tries to extinguish the fire, truly is the efficacious and free cause of the burning and is bound to restitution.

482. (A) The error concerns the gravity of the damage. He who by invincible error thinks that the damage which he inflicts is less than it truly is, more probably by natural law is bound only to restoring the part of the damage which he apprehended in his mind, unless however he apprehended the whole damage confusedly (e.g., a maidservant destroys or throws into the sea a jewel which she thinks to be worth ten coins, and which in fact is worth one hundred). For only that damage must be repaired which was voluntarily inflicted; but the excess of the damage was not voluntarily inflicted, since it was invincibly unknown. - But if the whole damage is apprehended confusedly (e.g., a homicide confusedly foresees various damages going to arise from this), the whole must be repaired, since it is sufficiently voluntary.

483. (B) The error concerns the injured person; - e.g., if someone burns the house of Peter, while he wishes to burn the house of Paul his enemy; or, intending to kill Caius, kills Titius. - A twofold opinion is given.

(a) Some, such as Lugo, Lacroix, and St. Alphonsus,¹ say that the damager in this case is not bound to restitution; for, in order that an action oblige to restitution, it is necessary that it be materially and at the same time formally injurious toward the injured person; but in the case, the action is materially injurious to Peter, and formally injurious to Paul, but not materially and at the same time formally injurious to the same person; hence there is no obligation of restoring anything to Paul, who in fact is not injured, nor to Peter, who is injured apart from the intention.

¹ Lugo, disp. XVII, n. 78; Lacroix, lib. III, p. 2, n. 200; St. Alphonsus, n. 629.

(b) Yet the more common and truer opinion is that the damager is bound in this case to restitution; for he is truly the unjust, efficacious, and culpable cause of the damage inflicted: unjust indeed, since he knows very well that he has no right to burn this house or kill this man, whoever he may be; efficacious, since he in fact burns the house or kills the man; culpable, since, notwithstanding the error about the person, he knows and wills to destroy a house or life, which he is prohibited by strict justice from destroying; - therefore nothing is lacking for an injury, whether material or formal. - In truth the error is not about the substance, but about the accidental things of the damaging action: he indeed thinks that the man present is Caius, but at the same time he knows that the man here and now present is innocent, and he wills to kill this innocent man and in fact kills him. - Nor can it be said that he is so disposed that he would not elicit a sinful act if he knew that this man was not his enemy; for the question is not what he would do or not do, given the hypothesis, but what he wills to do and does; but he wills to kill and in fact kills an innocent man. Hence we think that this second opinion is to be followed in practice; the reason which the defenders of the first opinion bring forward is indeed subtle, but is opposed to the moral sense of men, and therefore is to be rejected.

484. Whatever may be the case, there are certain conclusions about which almost all grave theologians agree:

(a) Restitution must certainly be made when the reason for inflicting damage is not taken from the person as such, but from his office; e.g., if someone, intending to kill a priest from hatred of religion, strikes Titius the priest, thinking him to be Caius the priest; say the same of him who wished to kill a magistrate, a soldier.

(b) Restitution likewise certainly must be made when sufficient care has not been employed for avoiding the error: because then, at least confusedly, the damager foresaw the evil effect which followed from it.

(c) When the damager, from two things pertaining to the same owner, indeed wishes to destroy one, but through error destroys the other, he must restore at least the price of the thing which is of lesser value; for the injury, both material and formal, falls upon the same owner; but injury is inflicted upon the owner, not upon the things.¹

¹ Therefore the contrary solution which Konings gives seems to us to be rejected, n. 758, 3, according to whom he is bound to nothing who, while he wishes to kill the goat of Maurus, kills the cow of the same man, which he was not seeing; he thinks this follows from the very rigor of principles; but is this not an evident sign that the principles themselves are contrary to justice, since from them a conclusion is inferred which upright men commonly reject as unjust?

489. Here the principles concerning the indirect voluntary are to be applied:

(a) If the drunkenness was voluntary, and the damager, before he lost the use of reason, at least confusedly foresaw the damage which can follow from drunkenness, he is bound to restitution.

(b) But if the drunkenness was involuntary, or if he could not foresee the evil effect, he is excused from the burden of restitution in the forum of conscience; but if he is condemned by the judge to repair the damages on account of juridical fault, he must obey.

564. State of the question. (A) The obligation of restoring arises from homicide and wounding committed unjustly, efficaciously, and culpably. Hence he who kills or mutilates another for the sake of just defense, and with the moderation of blameless defense, is held to no restitution. But he who, in a case of legitimate defense, notably exceeded just moderation, according to some, is bound to restitution; according to others, probably he is not bound, because the unjust aggressor knowingly and willingly exposed himself to the danger of death, and ought to impute to himself his own death or wounding; for he who is unjustly attacked can scarcely think of the moderation of blameless defense, and almost always is in good faith.

(B) Damage from homicide or mutilation can be threefold: natural, namely the loss of life or members; spiritual, insofar as the one killed is deprived of the opportunity of doing penance and of the suffrages which by testament he could have procured for himself; temporal, which happens either to the one killed or mutilated himself, or to his family, e.g., expenses for treating the wound, ceasing profit on account of the death, illness, or mutilation of the injured person.

565. Now (a) natural damage cannot properly and directly be compensated in the same genus; and it is controverted whether indirectly and equivalently it must be compensated through a payment of money. Many modern authors probably say that no compensation is owed unless it is imposed by the judge, because none is possible, since life, integrity of members, and bodily health exceed every price. Yet we judge it more probable, with St. Thomas¹ and many other older theologians, that some compensation is owed even for natural damage to the injured person, but not to his family. "When that which has been taken away is not restorable through something equal, compensation such as is possible ought to be made, as when someone has taken a member from another, he ought to compensate him either in money or in some honor, the condition of each person being considered, according to the judgment of a good man." For although justice intends perfect equality, yet if this cannot be obtained, we ought to approach it insofar as can be done. Yet according to all, care must be taken lest such compensation be an incitement to crime, e.g., to fornication. - The same diversity of opinions prevails as often as restitution in the same genus of goods cannot be made.

¹ St. Thomas, 2. 2., q. 62, a. 2, ad 1.

(b) Spiritual damage can and must be compensated in the same genus, through prayers, Masses, and other spiritual works. According to not a few, this obligation arises from justice; according to others, from charity; let the confessor warn homicides about this matter.

(c) Therefore it remains to speak of temporal damage.

566. Principle: A homicide or mutilator is bound to repair all temporal damages which he at least confusedly foresaw as going to follow from his action. - For he truly is the unjust, efficacious, and culpable cause of these damages.

567. Corollaries. (A) This obligation is real, and therefore passes to the heirs, who nevertheless are not held beyond the forces of the inheritance.

(B) The principal damages are: expenses for the treatment of the wounded or killed person, - or for the funeral, namely insofar as they are greater than if the injured person had died at home; ceasing profit on account of the wound or death of the injured person, which must be estimated by the judgment of a prudent man, with all circumstances of person, age, office, labor, etc., considered.

But because it is difficult to define these altogether accurately, it is very expedient that a friendly composition or transaction be made.

(C) Restitution must be made primarily to the injured person himself, and, after his death, to his nearest heirs, namely parents, children, and wife, because, on account of the very strict bond by which they are united to him, they form one moral person with him. The obligation of restoring to these nearest heirs is certain if they were receiving support from him and do not otherwise have that by which they may sustain themselves. More probably and more commonly the same is said, against Lacroix¹ and a few others, in the case in which parents, wife, and children can easily provide for themselves; for even in this case they have suffered unjust damage.

¹ Lacroix, lib. III, P. II, de Restitutione, n. 309; St. Alphonsus, n. 631.

568. (D) It is controverted whether restitution must be made to the remaining heirs, even blood-relatives, and to creditors of the deceased, who incur damage from this. These are the things which seem more probable to us:

(a) It is not clearly established, and therefore the obligation of restoring is not to be urged for non-necessary heirs, whom namely the deceased was not bound to provide for; for it is uncertain whether the deceased had the will of enriching them, and therefore if they suffer damage, it is caused by accident, and moreover such damage is partly compensated by the fact that they approach the inheritance sooner. - Yet the case is excepted in which one of them had been received into the family of the deceased, and held as a son; for then the deceased at least implicitly promised to have care of him, and obligated himself to this.

569. (b) Nor is the obligation of restoring to creditors of the deceased established, unless the homicide in a particular case foresaw and, according to some, intended the damage of creditors of this kind. Otherwise, damage inflicted upon creditors follows by accident, so that the homicide is not truly the efficacious cause of the same (n. 472); but with foresight, and according to some with intention, added, now nothing is lacking that the homicide should be the efficacious, culpable, and unjust cause of the damage.

To be noted. If one lethally wounded spontaneously and freely before death remits all debts to the homicide, the latter more probably is not bound from strict justice to restitution: for by condonation the debt is extinguished, from what will be said below. - Yet the wounded person, by acting thus, injures charity, if his relatives need support.

570. (A) He who provokes another to a duel, and by force, fear, or grave threats morally compels him to accept, and at last kills or wounds him, is bound to restitution like a homicide or one who wounds; for he uses unjust means for extorting consent; he who is provoked is truly unwilling, and injury is done to the unwilling.

(B) But if the one provoked spontaneously accepts, and is killed or wounded, or a fortiori if the one provoked kills the one provoking, no place is given to restitution by natural law; for each, by freely accepting the duel, freely exposes himself to the danger of incurring damage: but injury is not done to one knowing and willing.

Yet, if the civil judge has enjoined reparation of damage, his sentence obliges in conscience, since it was passed on account of the public good, to keep others away from duel.

571. Obligations toward a seduced or oppressed woman. (A) He who by force or fraud oppressed or seduced an honorable woman is bound to repair all damages which followed from this. For by using these means, he inflicted damages of this kind unjustly, efficaciously, and culpably.

It is explained: (a) by force or fraud; under which name come not only violent oppression, whether in the state of waking or in the state of sleep or drunkenness, but also threats unjustly impressed, importunate prayers of a superior, lies or false promises - especially a promise of marriage - by which the woman as it were unwittingly or unwillingly is induced to intercourse.

(b) An honorable woman, whether she is a virgin or a widow, provided she is held as chaste according to public estimation.

572. (c) He is bound to repair the damages. And this can be done either by marrying the woman,¹ - or by dowering her, so that more easily she may marry another, although deflowered.

¹ A woman is not bound to accept the seducer who offers marriage, but keeps the freedom of marrying whom she wishes: then the seducer must dower her, according to the common and true opinion.

The former indeed is to be counseled, unless too great a disproportion between the man and the woman, or another grave reason, stands in the way; nor however is it to be imposed under grave sin, unless an explicit promise of marriage had been present; - indeed even in this case this obligation is not to be urged if marriage is morally impossible because of disparity of condition, hatreds going to arise between families, or other unhappy outcomes prudently foreseen, - if the girl from the circumstances could easily have noticed that the promise was feigned, or afterward freely condoned the offense, whether explicitly or implicitly (e.g., by breaking faith).

If the seducer does not marry the girl, he must furnish her a suitable dowry, - or otherwise take care that she can marry according to her condition, - or, if she cannot marry, contribute to her support. - Yet he is excused from this duty if the woman in fact suffered no damage of fortune, because, e.g., she already married according to her state, or entered religion, or died by premature death; likewise, if the woman condoned the injury.

573. (B) He who deflowered a girl freely consenting, or induced her to sin only by prayers, blandishments, or persuasions, strictly is not bound to restitution under this head, unless afterward he manifested the hidden delict to others, or was condemned by the judge to a fine. - The reason for the rule is that injury is not done to one knowing and willing.

But if he manifested the matter to others, by that very fact he becomes an unjust detractor, and under this respect he must repair the damages which followed from it. Moreover, if the judge, on account of the public good, has commanded some reparation, this sentence obliges in conscience.¹

¹ By French civil law, from art. 1382, a pregnant girl can obtain compensation from the seducer. Cf. Planiol, 4th ed., I, n. 1529 sq.

574. Obligations as regards offspring conceived. (A) If someone has seduced a woman by force, fear, or other unjust means, he is bound, if offspring has been born, to bear all expenses of nourishment and education, because he himself is the unjust, efficacious, and culpable cause of the whole damage. Yet, if the father does not provide for the offspring, the mother is bound, by the law of piety, to educate the infant; but the seducer is bound to compensate all expenses which she underwent.

(B) If the woman freely consented, both parents are held by an equal obligation, in solidum, to educate the offspring until he can provide for himself; for piety, by which parents are held toward children, obliges to this.

(C) It is altogether fitting that the offspring be acknowledged before the Church and the civil forum, and be rendered legitimate, unless a grave inconvenience stands in the way, lest the offspring remain infamous and without inheritance.

575. State of the question. Adultery, besides the malice of fornication, carries an injury inflicted upon the other spouse, which must be repaired through satisfaction, when the adultery has become known to the husband; but if it has remained secret, silence must be altogether preserved, lest quarrels be caused. If offspring has not been born from the adultery, no temporal damage is to be repaired; but if offspring certainly has been born from adultery, there is a twofold damage to be repaired: (a) the expenses for nourishing and educating the offspring, which the husband unjustly underwent; (b) the portion of the paternal inheritance by which the legitimate children are unjustly deprived, because the illegitimate child unjustly receives some part of the inheritance. - But more probably damages which come by accident are not to be compensated, e.g., from the fact that blood-relatives give or leave by testament certain things to the adulterine child.

I said: if offspring certainly has been born from adultery; for in doubt, offspring is judged born from the legitimate husband, according to that: the father is he whom the marriage shows.

576. Principles. (A) If a man by deceit or force carnally knew the wife of another, he alone is bound to repair all damages, because he alone is the unjust, efficacious, and culpable cause of the damage.

(B) But if the wife freely consented to adultery, both adulterers are held in solidum to restitution of the damage inflicted upon the husband and legitimate children; for each is the unjust, efficacious, and culpable cause of this damage.

577. Corollaries. (a) Sometimes the adulterous woman alone is bound to repair the damages which happen by reason of inheritance; namely if she could easily have avoided these damages, by nourishing the adulterine offspring outside the family, e.g., in an orphanage, - and the adulterer did whatever he could to obtain this; for by acting thus, he sufficiently retracted the cause of damage posited by him; and the adulterous woman alone, by refusing this means, is the efficacious cause of the damage as regards the division of the inheritance. But this is rarely verified, since in practice it is very difficult to educate offspring outside the family without suspicions arising.

578. (b) If a wife has had carnal commerce with two adulterers, at a time apt for conception, and it is doubted which of the two is the father of the adulterine offspring, it is controverted whether both are bound to restitution: - according to some, neither is bound, because no one is obliged to reparation of damage unless it is morally certain that he is the efficacious cause of the same; but concerning neither is the matter morally certain. Yet more probably each is bound in solidum or at least according to the proportional part of the doubt; for each posited a cause of itself apt for causing the damage, and if paternity is doubtful, each cooperated in producing this uncertainty; and therefore he cannot be excused from restitution because of this uncertainty.

579. On the mode of restoring. It is very difficult to restore in this case, since from restitution suspicions about the adultery committed can arise, which would disturb the peace of the family. Hence the confessor must be altogether prudent in this matter.

(A) For the most part an adulterous woman is not bound to manifest her crime in order to avoid the damages going to follow from it; such a revelation generally cannot be made without danger of incurring the hatred of the husband, discords, divorce, and grave infamy, not only for herself, but for the whole family; but all these are much graver inconveniences than damages of fortune, and therefore dispense from restitution, if it cannot be done otherwise.

(B) Moreover a son is not bound to believe his own mother when she manifests his adulterine origin, unless from the circumstances as supports this testimony produces certainty, e.g., if it is proved that the father was absent at the time of conception. But if the matter is certainly established, he cannot in conscience retain the paternal inheritance.

(C) If it is possible to educate the adulterine offspring in a foundling hospital, without suspicions arising, this indeed must be furnished, since thus the expenses of education are greatly limited and the division of the inheritance is avoided.

Otherwise, the adulterous woman will strive to restore, by giving more, from her own goods, to the legitimate children than to the illegitimate child, by diminishing expenses, by working more diligently and giving the fruits of labor to the legitimate children. - But the adulterous man can restore by giving something to the legitimate children, whether among the living or by testament, according to the estimation of a prudent man.

The sins against the honor we owe our fellowmen are partly internal and partly external. They differ in degree according to the nature of the attack and the relation existing between the offender and the offended.

The legal axiom that every man must be considered honorable until the contrary has been proved, embodies a truly Christian principle, for the essence of Christianity is charity, which “thinketh no evil.”¹ Whoever disregards this maxim, has either lost charity, or is about to lose it. Merely to entertain unfounded suspicion internally is an injustice to others and an act of infidelity to God.²

¹ 1 Cor. XIII, 5.

² Matth. VII, 1; Luke VI, 37; John VII, 24; 1 Cor. IV, 5; Jas. IV, 13.—St. Thomas, Summa Theologica, 2a 2ae, qu. 60, art. 4: “By the very fact that someone holds a bad opinion of another without sufficient cause, he injures and despises him. But no one ought to despise another or inflict any harm whatever without compelling cause. And therefore, where manifest indications of someone’s malice do not appear, we ought to regard him as good by interpreting what is doubtful in the better part.”—Ibid., ad 2: “It is one thing to judge things and another to judge men. For in a judgment in which we judge things, . . . each person ought to strive to judge things according as they are. But in the judg- ment in which we judge men, . . . we ought rather to tend toward judging a man good, unless a manifest reason to the contrary appears.”—Hence the moral and legal axiom: “Nemo praesumitur malus, nisi probetur.”

1. The internal acts by which we violate the duty of honoring our neighbor, in so far as they influence our conduct towards him and thus cause him injury, are: groundless suspicion and rash judgment.

a) We are guilty of groundless suspicion against our fellowman if we doubt his virtue for altogether insufficient reasons (levia indicia). This sin usually begins with an unfounded doubt (dubitatio temeraria), which, if it is not promptly suppressed, engenders rash suspicion (suspicio temeraria).³

³ St. Thomas, Summa Theologica, 2a 2ae, qu. 60, art. 3: “There are three degrees of suspicion. The first degree is when a man begins to doubt another’s goodness from slight indications; and this is a venial and slight sin, for it belongs to human temptation, without which this life is not lived. The second degree is when someone holds another’s malice as certain from slight indications; and this, if it concerns some grave matter, is a mortal sin, inasmuch as it is not without contempt of one’s neighbor. The third degree is when a judge proceeds from suspicion to condemn someone; and this pertains directly to injustice, whence it is a mortal sin.”—St. Augustine, Tract. in Ioa., 26, n. 2: “Noli velle iudicare, si non vis errare.” (Migne, P. L., XXXV, 1607).

Unfounded suspicion of others usually comes from corruption in one’s own heart. If we were better men ourselves, says a modern writer, we should not consider others capable of so much evil. “He who is himself wicked,” says St. Ignatius of Loyola, “easily suspects others, just as he who suffers from vertigo, imagines that everything about him is moving round and round.”

b) Rash judgment (iudicium temerarium) consists in thinking ill of others without sufficient warrant. It differs from groundless suspicion only in degree: the former implies hesitation, whereas the latter does not.⁴ Holy Scripture tells us, and experience confirms it, that unfounded suspicion and rash judgment both originate as a rule either in malice, which sees nothing but wickedness in others, or in envy or hatred, which inspire ill will towards others. In some men these vices result from the bitter disappointments of a life-time. When they spring from malice, envy, or hatred, unfounded suspicion and rash judgment are invariably sinful, because they involve a lack of charity. The gravity of this sin may be gauged by the importance of its object and the degree of pleasure which the sinner takes in his uncharitable act.

⁴ Gury, Comp. Theol. Mor., I, n. 481: “1. A rash judgment is a true assent, conceived from slight indications, concerning some sin or defect of one’s neighbor; 2. rash suspicion is a weak assent concerning one’s neighbor’s evil, or an assent concerning another’s stain conceived with fear of the opposite; 3. doubt is a suspension of the mind determining itself toward neither side.”

Merely to harbor a momentary and spontaneous (or involuntary) doubt regarding the virtue of another is, of course, no sin at all. Such judgments frequently flash through the mind—we are so quick and prone to judge ill of others without sufficient reason. All this is merely a temptation. But from the temptation we pass on to sin if, knowing the insufficiency of our reasons, we nevertheless deliberately form an unfavorable judgment regarding another’s virtue. “Suspicion,” says the Angelic Doctor, “denotes evil thinking based on slight indications, and this may arise from three causes. First, from a man’s being evil in himself, and from this very fact, as though conscious of his own wickedness, a wicked man is prone to think evil of others. . . . Secondly, it is owing to a man’s being ill-disposed towards another; for when a man hates or despises another, or is angry with or envious of him, he is led by slight indications to think evil of him, because everyone easily believes what he desires. Thirdly, it may arise from long experience, wherefore the Philosopher says (Rhet. ii) that old people are very suspicious, for they have often experienced the faults of others. The first two causes of suspicion evidently connote perversity of the affections, whilst the third diminishes the nature of suspicion, in as much as experience leads to certainty, which is contrary to the nature of suspicion. Consequently, suspicion denotes a certain amount of vice, and the further it goes, the more vicious it is.”⁵

⁵ St. Thomas, Summa Theologica, 2a 2ae, qu. 60, art. 3: “Suspicion denotes an opinion of evil when it proceeds from slight indications, and this happens in three ways: first, from the fact that someone is evil in himself and, from this very fact, as though conscious of his own malice, readily thinks evil of others. Secondly, it arises from the fact that someone is ill-disposed toward another; for when someone despises or hates another, or is angry with or envious of him, he thinks evil of him from slight signs, because everyone readily believes what he desires. Thirdly, it arises from long experience. The first two causes of suspicion manifestly pertain to perversity of affection; but the third cause diminishes the nature of suspicion, inasmuch as experience advances toward certainty, which is contrary to the nature of suspicion. And therefore suspicion denotes a certain vice, and the farther suspicion proceeds, the more vicious it is.” (Vide supra, n. 3).—Gury, Comp. Theol. Moral., I, n. 482: “A rash judgment concerning a neighbor’s fault is by its kind a mortal sin against justice; for each person has a right to his good reputation in the judgment of individuals. . . . Often, however, it is venial because of the slightness of the matter or the imperfection of the act. Rash suspicion and doubt concerning a neighbor’s stain are only venial by their kind. The reason is that, because of their weak and readily changeable adherence, they ordinarily inflict only slight harm on one’s neighbor, since they do not destroy his reputation but only diminish it and render it doubtful.”

To entertain a sort of general distrust towards strangers or to reserve one’s judgment regarding their honesty or disinterestedness, in consequence of having had one’s goodness repeatedly imposed upon, is no sin, because there is some reason for such a general distrust. Still, we must always remember that Christian charity commands us to think good rather than evil of our neighbor.⁶ The Talmud lays down a prudent rule of conduct when it says: “Judge no one unless you have been in his place.”

⁶ Cfr. Is. XI, 3; Luke VI, 37; John VIII, 15 sq.; 1 Cor. IV, 5.—St. Augustine, De Agone Christ., c. 27, n. 29: “In that passage [Mt. vii, 1], where [the Lord] forbids judging, He admonishes us not to condemn anyone whose thought is not open to us, or of whom we do not know what sort of person he may afterwards become.” (Migne, P. L., XL, 395).

“Frequently there is a greater sin involved in judging rashly of another than in the act that is so judged. The wise men of the world (sapientes mundi) warn us not to outdo the sins of others by passing rash judgment upon them; how much more carefully ought we to consider our own conduct, lest we condemn petty faults in others and at the same time incur grievous sins ourselves.”⁷

⁷ Pseudo-Ambrose, Apol. II David, c. 2, n. 5 (Migne, P. L., XIV, 889).

“To have a low opinion of oneself and always to think well and commendably of others,” says Thomas à Kempis, “is great wisdom and perfection. If thou shouldst see another openly sin, or commit heinous crimes, yet thou oughtest not to esteem thyself better, because thou knowest not how long thou mayest remain in a good state. We are all frail; but do thou think no one more frail than thyself.”⁸

⁸ De Imitatione Christi, l. I, c. 2 (ed. Pohl, II, 8).

2. The chief external sins against the honor of our fellowman are contumely, calumny, and slander.

a) Contumely (contumelia) means casting a man's faults in his face to detract from his dignity. This may be done either in his physical or in his moral presence. Moral presence is assumed when the insult is uttered before those who know the victim and to whose respect he attaches weight.⁹ This includes publication in the press.

⁹ Gury, Comp. Theol. Mor., I, n. 478: "A person can be present either personally or physically, or morally through an image or through something else in which he is represented to some extent."

Contumely implies insult. An insult is any remark or expression by which another is denied the dignity of a human being, or accused of a moral defect, or charged with a crime or an offense. It is not necessary that the utterance in question actually contain an expression of contempt or disrespect, but the intention of injuring the other (animus iniuriandi) suffices.

The seriousness of the sin of contumely is measured by the intention of the offender, the importance of the matter involved, and the dignity of the person injured. No contumely is committed by parents and superiors when they censure the sins and faults of their children or subjects, even if this is done in a humiliating way, though they should, of course, always remember that even just reproaches must be kept within proper limits and that brutality and unnecessary harshness often produce a contrary effect.

The ancients took cognizance of real contumely, but not of verbal, and the Roman law did not punish the latter, probably for the reason that in former times men were less sensitive in regard to verbal insults than they are now, but especially because the spoken word did not then enjoy the publicity now given to it through the press.¹⁰ St. John the Baptist and Jesus Christ Himself severely censured the Scribes, Pharisees, and Sadducees.¹¹ St. Polycarp, when asked by the heretic Marcion whether he knew him, answered: "Certainly I know the first-born of Satan!"¹²

¹⁰ Homer (Ilias, I, 210 sqq.) describes Athene as intervening between Achilles and Agamemnon with the words: "Do not engage in combat nor draw the sword, for you can insult him in words as much as you please."—Linsenmann, Moraltheol., p. 457; W. S. Lilly, On Right and Wrong, London, 1892, Ch. VII, "The Ethics of Journalism," pp. 150–173.

¹¹ Matth. III, 7; XII, 34, 39; XVI, 4; XXIII, 13–33; Mark VIII, 38; Luke III, 7; XI, 42–45; cfr. Matth. XV, 26; XVI, 23; Mark VII, 27; Luke XIII, 32; Acts XIII, 10; XXIII, 3; Gal. III, 1, 3; Phil. III, 2; Tit. I, 12 sq.

¹² Irenaeus, Adv. Haer., III, 3–4; cfr. Polycarp, Epist. ad Philipp., c. 7; Funk, Patres Apost., Vol. I, 2nd ed., p. 304; Kirsopp Lake, The Apostolic Fathers (Loeb Classical Library), Vol. I, p. 293.

Contumely, says Fr. Slater,¹³ is of itself a grave sin against justice and charity, for it injures a man in what he values more than wealth, and as a rule an insult wounds the reputation as well as the feelings of him who is insulted. Christ shows how grievous a sin is committed by contumely when He says: "Whosoever shall say to his brother, Raca, shall be in danger of the council. And whosoever shall say, Thou fool, shall be in danger of hell fire."¹⁴ Like most sins against justice and charity, contumely may be a venial sin only, if the matter involved is slight. Chaff or banter, which is not intended to wound or irritate others is, of course, harmless, so long as it keeps within due bounds.¹⁵

¹³ Slater, Mor. Theol., I, 462.

¹⁴ Matth. V, 22.

¹⁵ Slater, ibid.

We insult a neighbor not only in words, but also by sending him abusive, immoral, or frivolous cards, a custom which exists in some countries and constitutes a serious abuse of the practice, in itself unobjectionable, of sending tokens of congratulation or remembrance at certain seasons of the year. The exhibition and circulation of offensive cards seriously menaces the morals of the young and promotes the world-wide movement against sound ethics.

b) Calumny (calumnia) or slander is committed by falsely imputing to another something which injures or destroys his reputation. This usually consists in accusing him falsely or exaggerating his faults or denying his good qualities or wilfully misinterpreting his intentions,¹⁶ and may be done in speech or in writing; in the latter case is called libel or pasquil.

¹⁶ Deut. I, 27; Mark VII, 22. On Matth. XII, 36 ῥῆμα ἀργόν, verbum otiosum, cfr. E. Nestle, Philologica Sacra, Berlin, 1896, pp. 58 sq.

Calumny involves three distinct acts; namely, first, a wilful lie, which is aggravated by the fact that it is told in secret and the injured person cannot defend himself against it; secondly, a sin against charity, and thirdly, a violation of justice (iustitia commutativa), because the injured person frequently suffers damage in his social position or good name.

If calumny is committed in general terms, i. e., if we declare our neighbor to be entirely bad without a redeeming trait, it is a mortal sin. If we impute to him only one fault, or several faults, the gravity of the sin committed varies according to the seriousness of the faults imputed, the consequences of the imputation, and the malice with which the calumniator strives to effect the moral or social ruin of his victim. The lighter the unjust accusation and the less intentional the imputation of evil, the smaller will be the guilt incurred.

In its worst form calumny is little less than spiritual murder and must be reckoned among the sins that cry to Heaven for vengeance.¹⁷

¹⁷ Cfr. Ps. C, 5; Jas. IV, 11; 1 Pet. II, 1.—St. Jerome, Epist. 54 (al. 10), n. 13: "It is impossible for anyone to pass through the course of this life without being bitten by men, and it is the consolation of the wicked to carp at the good, while they think the guilt of sins is diminished by the multitude of sinners. Yet the fire of stubble soon subsides, and the overflowing flame gradually dies when nourishment fails."—Epist., 108 (al. 27), n. 19: "A slanderous tongue is accustomed to carp at saints as a consolation for the offender."—Epist., 148 (al. 14), n. 16: "Never detract from anyone at all, nor wish to appear praiseworthy by censuring others; learn rather to adorn your own life than to carp at another's. There are very few who renounce this vice, and rarely will you find those who wish to present their own life as blameless without willingly censuring another's. So great a lust for this evil has invaded men's minds that even those who have withdrawn far from other vices nevertheless fall into this one as though into the devil's final snare. But do you so flee this evil that not only do you yourself not detract, but you do not even at any time believe another who detracts. Nor by agreeing give authority to detractors, lest by nodding assent you nourish their vice. . . . Indeed, this vice is such that it should be extinguished among the first, and should be wholly excluded by those who wish to train themselves in holiness. For nothing so disturbs the mind; there is nothing that makes the mind so changeable and frivolous as readily to believe everything and to follow the words of detractors with the mind's rash assent. Hence frequent dissensions arise, hence unjust hatreds. This it is that often makes enemies even of the closest friends, when a malicious tongue separates souls that are indeed harmonious but credulous. On the other hand, it is great tranquility of mind and great steadiness of character not rashly to hear anything adverse about anyone. Blessed is he who has so armed himself against this vice that no one dares detract in his presence. But if there were in us this diligence not to believe detractors indiscriminately, everyone would now fear to detract, lest in detracting they make not others so much as themselves contemptible. But this evil is notorious for this reason, and this vice flourishes in many for this reason: because it is willingly heard by almost everyone." (Migne, P. L., XXII, 557, 896, 1211).

The varieties of this sin are described in the old memorial verse:

"Imponens, augens, manifestans, in mala vertens, Qui negat aut minuit, reticet laudatque remisse."

If one is calumniated, he should recall that it is not the worst fruit that is attacked by the wasps, as the German poet Bürger says, or, as an Arabian proverb puts it: "People do not throw stones at a tree unless it bears fruit."

Some men resemble bees, not by their diligence, but by their sting.

c) Detraction, or backbiting (diffamatio, detractio)¹⁸ is committed when one unjustly deprives another of his good name by revealing his real but secret faults in his absence. This is a sin against justice as well as charity, because every man has a strict right to his good name. The more uncharitable the disposition of the detractor or slanderer, the more unfavorable the light in which he places his neighbor, the more widely the detraction circulates, the more the victim's position or activity depends on his good name, and the worse the results of the detraction, the more serious is the sin committed. Another factor to be taken into consideration here, as in all sins of defamation, are the consequences resulting from detraction in the case of those who hear of it.

¹⁸ The older Scholastics designated both calumny and detraction with one word: detractio.—Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 73, art. 1.—Gury, Comp. Theol. Mor., I, n. 459, says: "Detraction is a secret and unjust violation of another's reputation, or the unjust blackening of the reputation of an absent neighbor. Reputation is the good estimation that others have of someone's life and morals. Detraction is called simply such if the neighbor's reputation is violated by reporting a true crime; it is called calumny if the violation follows from imputing a false crime."

Unsophisticated persons are apt to lose their good opinion of others generally (odium generis humani) and their reverence for virtue. Hence a sin of this kind, aside from the malice it involves, is more grievous when committed by persons in whose veracity and judgment one has great confidence.¹⁹

¹⁹ Gury, Comp. Theol. Mor., I, n. 460: "The gravity of detraction is to be taken chiefly from the gravity of the harm that one's neighbor is foreseen to suffer from it, and not precisely from the gravity of the defect or crime related about him. Hence, to determine the gravity of detraction in a particular case, attention must be paid to the character: 1. of the detractor—whether he is serious and discreet, or talkative and frivolous; 2. of the injured person—whether he enjoys a good or bad reputation, etc. The reason is that greater or lesser credence will be given according as the speaker is worthy of greater or lesser trust; likewise, greater or lesser injury to reputation will follow in proportion to the greater or lesser esteem enjoyed by the injured person."

Like calumny, detraction can be committed against an entire community or class, and not only by word of mouth, but also in writing. To defame others in writing is a more grievous sin than to do so by word of mouth. Writings enjoy a certain permanency and therefore are able to exercise their influence not merely in the present, but likewise in the future.²⁰

²⁰ Cfr. St. Paul's judgment of the Cretans (Tit. I, 12), and the sayings: "Litera scripta manet" and "Literae non erubescunt"; i. e., one writes more boldly than one speaks.

Mendacity and detraction are the primary vices of the modern newspaper press. "Journalism is conducted under conditions which tend to nourish this vice. The newspaper is, by its very nature, an ephemeral production, read for an hour and then cast aside, and probably never looked at again. Its assertions have done their work before an opportunity of correcting them is presented. Besides, it rests with editors whether contradictions of false and misleading allegations, which their journals may contain, shall appear in them or not. And it is manifest to all men that the considerations by which this question is determined are, in a vast majority of instances, wholly unethical. Again, the conditions under which the newspaper publicist works are extremely unfavorable to the cultivation of the virtue of veracity. He is called upon suddenly to expound views which shall strike his readers as profound, well-considered, or original, about subjects of which, very likely, he knows nothing truly or exactly. Or he is summoned to essay the defense of 'principles' to which he is wholly indifferent. Or he is bidden to attack some institution, some interest, some work, which whatever there may be of good left to him confesses to be worthy of respect and support. A very few years' practice in a calling of this kind is apt to render him as indifferent to the goal whither his pen conducts him, as is a cab-horse to the destination whither the driver's 'fare' is conveyed. And the worst of it is that, in time, he comes to glory in his shame. Aristotle, in the Nicomachean Ethics, distinguishes between two kinds of liars; there is 'the liar who loves a lie for its own sake,' and 'the liar who lies to win reputation or to make money.' But many a journalist who, at first, belongs to the latter of these classes, and is perhaps a little ashamed, for a while, at finding himself there, passes pretty swiftly into the former. Thus does he anticipate in this life, the doom which Dante ascribed to the damned; he is in the miserable estate of those 'genti dolorose' who have lost 'il ben del intelletto.' And then, by a fatal and necessary law, his chief object, next to the provision of the means of 'agreeable feeling' for himself, is to bring down as many as possible to his own level. Nor does he find any surer way of effecting this, than by the persistent denial of those moral excellences which he has ceased to strive after, or even to venerate. Is a man the object of reverence and admiration, for patriotism, philanthropy, piety? Your newspaper censors, with due protestations of hatred of hypocrisy, will strip off the veneer which imposes on the unsuspicious; will show their readers that these pretended virtues are a mere cloak for some base or sordid end; will demonstrate conclusively that 'old Cato is as great a rogue as you.' And their efforts are only too successful. I think I may truly say that the newspaper press, during the last quarter of a century, has done more than anything else to de-ethicize public life; to lay the axe to the root of duty, self-devotion, self-sacrifice, the elements of the moral greatness of a nation, which is its true greatness."²¹

²¹ W. S. Lilly, On Right and Wrong, pp. 171 sqq.

Formal detraction differs from material in that it is intentional. Formal detraction, or, a fortiori, slander, be- ing contrary to justice and charity, which bind under a grave obligation, is of itself a grievous sin, though frequently only venial on account of the smallness of the matter involved. Material detraction usually proceeds from carelessness, lack of caution, love of gossip, or a desire to be entertaining and, therefore, as a rule, is a venial sin only, unless indeed it seriously injures the good name of others.²²

²² St. Thomas, Summa Theol., 2a 2ae, qu. 73, art. 2: "Verbal sins are to be judged chiefly from the intention of the speaker. Detraction by its nature is ordered to blackening someone's reputation. Hence, strictly speaking, he detracts who speaks ill of someone in his absence for the purpose of blackening his reputation. Now, to take away someone's reputation is very serious, because among temporal goods reputation seems to be more precious, through the loss of which a man is hindered from doing many good things (Eccli. 41, 15). And therefore detraction, strictly speaking, is a mortal sin. Yet it sometimes happens that someone says certain words by which another's reputation is diminished, intending not this but something else. This, however, is not detraction strictly and formally speaking, but only materially and, as it were, accidentally. And if someone utters words by which another's reputation is diminished for the sake of some necessary good, with the due circumstances observed, it is not a sin and cannot be called detraction. But if he utters them from levity of mind or for some unnecessary cause, it is not a mortal sin, unless perhaps the word spoken is so grave that it notably injures someone's reputation, especially in matters pertaining to uprightness of life, because from the very kind of words it has the character of a mortal sin."

Note that the guilt of detraction, aside from the underlying intention, is measured by the amount of injury done (gravitas damni), and that, consequently, attacks upon the good name of others are grievously sinful in proportion to the dignity or social position of the persons attacked. To attack the good name of a priest or superior, therefore, is more grievous than to attack the reputation of an ordinary citizen.

While it is never permissible falsely to impute a crime to another,²³ it may be licit, nay a strict duty, to reveal his true faults for a higher purpose. This is the case, for instance, when it becomes necessary to inform legitimate superiors, to warn inferiors, children, etc., or to protect oneself or others against serious injury, or if the faults revealed are already known in consequence of a public trial or the culprit's own admission (notorietate iuris) through the confession of confederates (notorietate facti) or through rumor (notorietate famae). Whenever the revelation of the sins or faults of another seems necessary as a means of reforming him or of averting a greater evil, it is morally licit, nay a duty, for the reason that the sinner has lost the right to his good name because he can not preserve it except to the detriment of others and to his own injury.²⁴ But even though his faults and crimes are notorious, charity commands us not to reveal them to persons to whom they would otherwise probably remain unknown. Besides rumors must never be represented as facts.

²³ Prop. damn. sub Innoc. XI, n. 44: "It is probable that one who imputes a false crime to someone in order to defend his own justice and honor does not sin mortally. And if this is not probable, scarcely any opinion in theology will be probable." (Denzinger-Bannwart, n. 1194).

²⁴ Gury, Comp. Theol. Mor., I, n. 461: "It is never permissible to impute a false crime to another. . . . It is permissible, however, for a just cause to reveal a hidden crime even with the loss of his reputation, because sometimes the public or a private good requires this, and then the neighbor's right to the preservation of his reputation ceases. The causes for which another's crime may lawfully be revealed are the following: 1. A notable advantage to the revealer himself, e. g., to seek advice or assistance in a grave matter, provided, however, that every disposition to detraction is excluded; 2. The advantage of the offender, namely, for his instruction or correction, etc.; 3. The public advantage, as for preventing evils threatening the state, religion, or some community; 4. A grave private advantage, either of the hearers or of others, e. g., that they may guard against evils, losses, or inconveniences that otherwise will certainly or probably befall them. The reason for these cases is that one who then reveals another's sin injures neither justice nor charity. 1. He does not injure justice, because the neighbor does not have so strict a right to his reputation that others are bound to conceal the truth when its disclosure is necessary to avoid grave harm, whether to oneself or to others. 2. He does not injure charity, because charity does not bind at so great a loss. For if you are not bound to prevent harm to your neighbor, even greater harm, at grave loss to yourself, neither are you bound in that case to conceal your neighbor's hidden crime." Cfr. ibid., n. 465–466.

Detraction comprises all evil speaking and criticizing of others through the spreading of tales to the disadvantage of their good name. This applies especially to suspicions cast upon the internal motives of our fellowmen.

A special kind of detraction is known as tale-bearing (susurratio), and consists in mischief-making between friends by telling tales to the disadvantage of one of them, with the object of sowing or promoting discord.²⁵ This sin is particularly detestable if it is directed to the destruction of mutual confidence between husband and wife.

²⁵ Prov. VI, 16 sqq.; XXVI, 20, 22; Ecclus. V, 16 sq.; XXVIII, 15.—Cfr. St. Thomas, Summa Theologica, 2a 2ae, qu. 74, art. 2: "A sin against one's neighbor is graver in proportion as greater harm is inflicted on the neighbor through it. Harm, however, is greater in proportion as the good taken away is greater. Among the remaining external goods, however, a friend is preeminent (Ecclus. vi, 15). Reputation itself, which is taken away by detraction, is especially necessary for this, that a man be held fit for friendship. Therefore tale-bearing is a greater sin than detraction and even than contumely, because a friend is better than honor and to be loved than to be honored."

By listening wilfully or with pleasure to a detractor, or encouraging him by asking questions or applauding his tales, or not hindering them if we are able, we formally coöperate in his sin.²⁶

²⁶ Prov. XXV, 23.—Cfr. St. Bernard, De Consid., l. II, c. 13: "Whether to detract or to listen to a detractor—which of these is more damnable I would not easily say." (Migne, P. L., CLXXXII, 756).

Mockery or derision (derisio, irrisio, illusio, subsannatio) makes sport of another's honor. It sometimes runs counter to charity also by employing the faults or infirmities of others in order to make them a butt of laughter or contempt. The most grievous sin of this kind is the mockery of God and sacred things; next in order come mockery of parents, superiors, and virtuous persons.²⁷

²⁷ Is. XXXVII, 23; Prov. XXX, 17; Job XII, 4.—Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 75, art. 2.—Possidius, Vita Sti. Augustini, c. 22 (Migne, P. L., XXXII, 52): "Whoever loves to gnaw at the life of the absent with words, let him know that this table is unworthy of him."

READINGS.—St. Thomas, Summa Theol., 2a 2ae, qu. 60, art. 3–4; qu. 73 (Rickaby, Aquinas Ethicus, II, 18 sqq., 82 sqq.).—St. Alphonsus, Theol. Mor., l. III, n. 962–977 (ed. Gaudé, II, 355 sqq.).—Jocham, Moraltheologie, Vol. III, pp. 400 sqq.—Schwane, Die Gerechtigkeit, pp. 77 sqq.—M. Cronin, The Science of Ethics, Vol. II, pp. 110 sqq.—A. Tanquerey, Synopsis Theol. Mor. et Pastor., Vol. III, pp. 156 sqq.—J. E. Ross, Christian Ethics, pp. 259 sqq.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 659 sqq., 678 sq.

Detraction, calumny, and other like sins violate justice, and therefore involve the duty of making restitution, as far as possible, for the damage inflicted, and of seeking reconciliation with the person injured.

1. An insult or contumely wilfully committed against a fellowman calls for an apology (deprecatio). However, a formal apology is, as a rule, demanded only of subjects; among equals an act of extraordinary benevolence will serve the same purpose; on the part of superiors in their relation to inferiors, a special sign of good will or amiability will suffice.¹

¹ St. Alphonsus, Theol. Mor., l. III, n. 986–987 (ed. Gaudé, II, 373).—St. Augustine, Epist., 211 (al. 109), n. 14: "Whichever nun has injured another by abuse or cursing or even by charging her with a crime, let her remember to take care as quickly as possible, by making satisfaction, of what she has done, and let the one who was injured forgive without dispute. But if they have injured each other, they ought mutually to forgive the debts owed to each other, on account of your prayers, which you certainly ought to have holier in proportion as you have them more frequently. Better is she who, although often tempted by anger, nevertheless hastens to obtain forgiveness from the one whom she acknowledges that she has wronged, than she who is slower to become angry and is more reluctantly inclined to ask forgiveness. She who does not wish to forgive her sister should not hope to receive the effect of prayer; but she who never wishes to ask forgiveness, or does not ask it from the heart, is in the monastery without cause, even if she is not cast out from it. Therefore, for your part, refrain from harsher words; but if they have issued from your mouth, do not be ashamed to bring forth remedies from the same mouth from which the wounds were made. When, however, the necessity of discipline compels you to speak harsh words in restraining those younger than you, even if you feel that in those very words you have exceeded due measure, it is not required of you that you ask forgiveness from them, lest, while excessive humility is observed toward those who ought to be subject, the authority to govern be broken; nevertheless, forgiveness must be sought from the Lord of all, who knows with how much benevolence you love even those whom perhaps you rebuke more than is just." (Migne, P. L., XXXII, 964).

If the insult was committed in actions, it should not merely be apologized for, but restitution must be made for the material damage inflicted.

Principle. Since restitution supposes injustice, restitution is not therefore to be made because the guilty person has been made richer, but because the other has less on account of his own right having been injured by the guilty person. On account of his own right having been injured, I say, or because he has less than he ought to have.

But here it is useful to consider separately the two roots of restitution, so that we may successively ask and attempt to determine what possessors of another's thing, and again what unjust damnifiers, are bound to restore.

I. Principle. All things return to this: that possessors, unless they are excused by a just privilege of positive law, should satisfy the real rights of others (i. e. rights in the thing), execute the promises of agreements, and, if they have been unjust, repair damaging injuries.

1. Therefore the possession of another's thing raises questions which directly regard the thing, the fruits, and the damages of him who has the right; indirectly, the execution of agreements to which possession of another's thing has given place.

2. Possession is distinguished into possession in good faith, i. e. here, with an uninjured conscience concerning the dominion acquired, and possession in bad faith, i. e. dominion acquired against conscience.

Theologians moreover distinguish detention in good faith, which can be joined with possession in doubtful faith and can suffice for prescription in conscience. For a possessor can have doubted from the beginning or only afterward; the doubt can be about a derivative title: whether he bought from the owner, or about an original title: whether the thing has been abandoned or lost by the owner, so that he can occupy it or acquire it by usucapion as belonging to no one; he can detain the thing from the beginning or afterward with a conditional intention and one of inquiry and of restoring it to the owner if he is found, or with an absolute intention. Good faith, in the widest usage, denotes concord between intention and conscience.

II. The Possessor in Good Faith. 1. As regards the thing itself:

a) He is not responsible for a fortuitous event.

b) He can acquire by usucapion, and he is permitted to use the privileges of positive law.

Not rarely, on account of those privileges, the very delivery that has taken place to a possessor in good faith, or the inscription of his name in public registers, assigns the thing definitively to the possessor. Cf. 402.

c) He cannot prevent the owner from vindicating his own thing (except when usucapion has taken place); indeed, he must restore it spontaneously.

But what if, in order to recover the price which he himself gave, it were necessary to restore the thing to the seller, the thief? Many permit him to do this, because he does not place the thing in a worse condition.

But if another way is available for recovering the price, it is agreed that this way must be entered upon.

d) He who, by destroying or consuming the thing, has thence been made richer, whether directly, through positive gain, or indirectly, while he spared his own thing: from that advantage, insofar as it is to be attributed to the possessed thing and not to the industry of the possessor, he must make the owner indemnified concerning the thing lost, or, as others wish, restore the value which the thing had when it was being consumed.

e) He need restore nothing to the owner for a thing which he has handed over to another without gain; indeed, as is probable, neither for a thing which he has handed over with gain, as if, for the donation of the thing having been made, the donee out of gratitude of mind sent another gift to the possessor. For the right of the owner draws to itself the thing itself, but not the gain of the possessor.

2. As regards the fruits. Considering the law of nature, a possessor in good faith would have to restore existing fruits or fruits usefully consumed insofar as they were natural, expenses nevertheless being deducted; but many positive laws establish that a possessor in good faith can simply make the fruits his own.

Thus the Code of Ecuador, 898; Argentine, 2157; Austrian, 330; Belgian and French, 549; Bolivian, 293, 294; Brazilian, 510; Canadian Q., 411; Chilean, 907; Colombian, 964; Costa Rican, 327, 328; German, 955 [cf. nevertheless 2020]; Guatemalan, 519; Helvetic (Civil Code) 938; Spanish, 451; Italian, 703; Lusitanian, 495; Mexican, 834; Dutch, 604; Nicaraguan, 907; Panamanian, 137; Peruvian, 170; Salvadorian, 937; Uruguayan, 649; Venezuelan, 686.

Concerning this acquisition the laws of England and the U.S.A. are silent.

One must attend whether, according to the received interpretation of the law, the fruits are acquired already by their very birth or production, or only by perception; and whether or not the expenses of cultivation are to be paid back by the owner for the fruits which the possessor in good faith has acquired.

3. As regards damages: if you attend to opinions, he is compelled to repair no damages. Yet it seems truer that at least from equity it is required that, by means of the gain received from the thing, the possessor repair the damage which by his own deed, although not voluntary, he brought in. For gain received from the thing is, as it were, a fruit of the thing; damage arising to the owner is, as it were, an expense by which the fruit was received. But fruits are not understood except with expenses deducted. Therefore if the fruit is gathered by the possessor, he must pay the expenses, i. e. repair the damage. Or, if you prefer, having been made richer from another's thing, will he not be moved by a sense of equity to take from the gain for repairing at least the owner's emergent damage?

4. As regards contracts: a) he can use the benefit of positive law which confirms a donation or sale made to him; - b) if he has sold the thing, since, as seller, he must provide eviction to the buyer who has suffered it, unless the buyer, by an untimely restitution of the thing, has harmed the seller himself. In the rigor of the law, such as ours, by which the sale of another's thing is declared null, he would have to restore to the buyer the price retained as if without title; but because the tribunals themselves are accustomed greatly to consider whether or not the buyer has suffered eviction, he seems able to await the sentence of the judge. If the thing has perished, let him see whether or not he has anything to fear in civil law. If nothing, at least counsel should be given to him that he restore to the owner the price existing with him, as if, unknowingly but in good faith, he had managed this one's business.

Counsel, I say; for we have not dared to press a strict obligation independently of civil law. Many authors indeed solve the case more severely. But they follow the classical guides who were writing while Roman law was in force, by which restitution of the price was commanded. Cf. l. 28, D. V, 3: "For after the senatus consultum it must be said that every gain is to be taken away both from the possessor in good faith and from the robber." Cf. also l. 55 in the same place. Therefore authors distinguish the varied origin of possession. If the possessor bought the thing and sold the same without gain, they agree that the price is not to be refunded to the owner who cannot recover his own thing. But if he has sold the thing with gain (at least non-industrial gain), whether he bought it for less or received it as a gift, then that gain or price must be restored to the owner who cannot recover his own thing: for the thing is represented by that gain or price; the possessor cannot grow rich from another's thing. Yet neither reason seems efficacious. Not the former: for the representation of the thing by the price cannot vary on account of circumstances extrinsic to the price. For what reason, therefore, is it denied when the thing exists or has been sold without gain, but affirmed when the thing has perished by chance and has been sold with gain? Not the other reason. For from the law of nature only this is had: no one can grow rich unjustly from what belongs to another.

Therefore injustice would have to be demonstrated. Nor, according to the principles of law, can there be imposed on a seller in good faith both the obligation of providing eviction to the buyer and conditionally, if eviction has not had to be provided, the obligation of restoring to the owner the price obtained (cf. e. g. Aertnijs-Damen, I, 751). But once the sale has been made, by no direct relation is the possessor in good faith now bound to the owner of the thing. Nor is he held from unjust taking, since he has not sinned, nor from the thing received, since it has passed elsewhere. The owner can vindicate his own thing where it is, not where it was; but he has no personal action against the possessor in good faith. "Certainly, if while the purchase and sale were being celebrated, the owner had suddenly been present, to each one his own would have had to be restored, that is, the thing to the owner, the price to the buyer; but what afterwards happens by chance does not change the law" (d'Ann., II, 239, note 8, II).

Wherefore we judge it equitable that a possessor in good faith restore to the owner who is deprived of his own thing the price which he can restore without damage to himself, as if he had involuntarily but usefully managed the business of the owner; but we do not think that a strict obligation of justice of acting thus can be gathered from the law of nature.

N. B. As regards expenses, or costs made about another's thing, necessary expenses are to be paid to the possessor in good faith, i. e. those without which the thing would have suffered detriment, and useful expenses which have increased the value of the thing.

Yet the possessor in good faith acted at his own risk. Wherefore for useful expenses attempted in vain he can demand nothing. Merely pleasurable expenses are not to be compensated to him, but by him, if they are separable, they can be taken away.

The Possessor in Bad Faith:. 1. As regards the thing itself:

a) He is responsible for a fortuitous event, unless nevertheless it would have perished by the same identical fortune, or at least, as some benignly permit, at the same time in the owner's possession. Nor does he formally owe anything because the thing, affected by an intrinsic defect of disease or age, has perished.

b) He cannot acquire the thing by usucapion nor use the privileges of civil law,¹ except the prescription of five years, concerning which above, n. 404, 2, c.

c) He must restore the existing thing with all increases which have come forth from the thing and not from the industry of the possessor.

d) If he himself has consumed the thing, or has alienated it in such a way that it cannot be recovered by the owner, he owes the value of this whole thing which was in it when it was consumed in that way naturally or civilly (as money spent). For as long as it existed, it belonged to the owner with its own value. Some benignly permit that only that value be restored which the whole thing had when the owner would have alienated or consumed it; but this is speculatively false. For the thing is preserved and grows for the owner. Just as he who had impeded the destruction of another's thing would have acquired no title from that to that thing or to its value for himself, so neither does the possessor in bad faith who prohibited the owner from alienating it obtain a right in the greater value of the thing preserved.

2. As regards fruits: he must restore all non-industrial fruits. Yet because, properly speaking, consumable things bear no fruits, the interest of money is not to be handed over to the injured owner as a fruit, but it is enough to restore that interest which the owner himself would have received; while the price of a rented house must also per se be restored to him who would not have rented the house.

For one thing must be said concerning the class of money, another concerning the price of a rented house or rented horse. For not less than the thing itself, its use calls out for the owner. But the price of use is the money to be paid for rental. Therefore whether the owner would have rented the thing or not, the possessor in bad faith will be able to make his own only that increase of price which is to be attributed to his own industry. But money does not have a use distinct from taking it up. Hence every fruit of it can be called industrial. Cf. concerning the principle alleged, Lugo d. 17, n. 58 ss.; d'Ann., II, 211.

Some nevertheless contradict that common opinion, who think it enough that the owner be made indemnified (Cf. Lugo, l. c. Piscetta-Gennaro, II, 111).

And often a greater obligation will not be understood by a possessor in bad faith. Wherefore no greater one will then have to be imposed.

3. As regards the damages of him who has the right: the possessor in bad faith must repair all damages which in a confused way were foreseen as going to arise from the injustice. Therefore that possessor owes to the owner: the price of an animal which died from disease but which the owner would have sold before the disease; the gain which the owner would have made from a more opportune sale; the interest which the owner would have received.

4. As regards contracts, per se he must provide eviction to the seller [source reads venditori; the legal context seems to require "buyer"].

N. B. a) Many things will often not be established. Then let him restore the value which the thing had when it was consumed, with compensation of use added, and, if the thing was consumable, with modest interest added.

b) Restitution is owed to him whose certain right of dominion or possession has been violated.

c) Concerning expenses the rules established for the possessor in good faith return.

¹ Unless some civil law wishes to punish negligent creditors, who do not reclaim debts, with this sanction of civil prescription.

What if several have successively possessed the thing?.

He owes the thing before others who has it formally or equivalently, or has destroyed or consumed it. - Then succeeds the robber of the thing.

Each one will owe, before others, the fruits which he has received.

Each one is responsible for damages with which he has cooperated, and this separately or in solidum, according to the rules to be handed down later.

The Possessor in Doubtful Faith:. 1. As regards the thing itself:

a) Every possessor in doubtful faith is bound by an obligation of justice to investigate the truth by effort and expenses which agree with the degree of doubt, the hope of success, and the importance of the thing. With the degree of doubt: wherefore a negative doubt can be despised; indeed even a positive one, if it is slight. With the hope of success: wherefore one can abstain from an inquiry which morally brings no hope of fruit. - With the importance of the thing: greater diligence must be applied to a greater cause. And because the diligence of him who perhaps must inquire at his own expense is graver or more difficult than that of him who is thereby exposed to no positive damage, more money must be spent on investigation when, by spending it, you will gain less, than when perhaps it will have to be deducted from your goods. Thus the finder of a lost thing will be able either to impute to the owner, if he is found, the expenses made for seeking him, or, if he himself has occupied it, to compensate himself from the value of the thing found. Moreover a possessor, at least one not to be blamed, is not bound to take upon himself expenses for removing the doubt which, considering the importance of the thing or the hoped-for fruit, are to be judged truly notable or grave. But he who from the beginning of possession or afterward has been guilty of injury is held more gravely than an inculpable possessor.

b) Once inquiry has been made: 1) he must satisfy the certain right of another or of others, according to the rules for a possessor in good or bad faith, according as he has been innocent or immune from delict, or from the beginning of possession or afterward, by neglecting to inquire, has sinned against justice; - 2) but if the certain right of no one has appeared, while the doubt remains, although many speak more severely about him whose possession was badly begun, he need restore nothing. And he is placed in that theological good faith which, in accommodation to positive laws, permits the thing to be acquired by usucapion.

c) He who, by omitting inquiry, has been the cause that he cannot discover the true owner or restore the thing to him who has the right, will have to destine it to the poor or to the common utility. - If that is not established, although many respond more severely, an uncertain obligation will not be able to be pressed.

d) He who, doubting concerning his own right, has despoiled of his possession a possessor who is not in bad faith, must per se restore the thing to him and repair damages. Cf. what was said concerning hidden compensation, n. 639.

e) We cannot make the condition of him who has the right worse. Wherefore the possessor must apply ordinary diligence in preserving the thing and in gathering fruits from it, nor can he dispose of the thing, unless the hope of certain truth has vanished, or unless, for avoiding damage or using an occasion of gain, the thing had to be usefully expended, with the intention of refunding the utility to the owner if he appears.

N. B. He who by an unjust action has been the cause of the doubt must himself bear the expenses for removing the doubt or discovering the right. Except if that difficulty was not foreseen even in a confused way. On the other hand, he who is not to be blamed will impose the expenses on the owner by right and merit.

2. As regards fruits and connected gains, the legal privilege of acquiring fruits does not belong to the possessor in doubtful faith, as such. Wherefore, with the principal thing, just as other advantages of the thing, they will have to be restored insofar as they exist, or even insofar as they have been consumed without good faith. Except, however, those which are owed to his own industry.

3. As regards damages: he must make good the damages who, by acquiring in doubtful faith, has made the condition of him who has the right worse, or who has neglected to inquire.

4. Nothing special is to be added about agreements and expenses.

You will ask how far it is lawful for us to acquire a thing from a possessor in doubtful or bad faith.

We are prohibited from occupying or acquiring anything in doubtful faith with the absolute intention of possession. But with a conditional intention, complicity being excluded, we are not prohibited from acquiring a thing even from a possessor in doubtful or bad faith, if we do not seem to make the condition of him who has the right worse, and if we take on a positive obligation of seeking the one who has the right and satisfying him. Then, while the doubt perseveres, although many command partial restitution, nothing strictly seems to be owed.

But if our acquisition must be charged as probable complicity in another's injustice, this action will be unjust, unless that complicity itself is excused by a grave reason. After the fact, if the matter cannot be investigated, there will not be certainty about the obligation of restitution.

Principles. 1. An unjust damnifier, as such, must per se restore as much as the damage which has followed or has been unjustly inflicted. That quantity will have to be estimated both from the quantity of the right, and from the thing taken away, and from emergent damage and ceasing gain.

2. But what has happened beyond prevision, even confused prevision, since it has been invincibly unknown, is exempt from obligation as involuntary.

3. It can also happen, in a lighter matter, that condonation by the damnified person can be presumed.

Corollaries. 1. To him who had a right in a thing actually existing, its whole value must per se be restored. But if he had only a right to a thing, for example from money lent, or the thing was present only in hope, for example a future crop, a prize in a contest: an estimation of the hope itself must be made, according to the greater or lesser certainty of obtaining the thing. In the absence of a better indication, where there was solid probability, for example of carrying off a prize, the damage will be able to be estimated at half the value of the thing. But where it can be done, it will be better to enter into an arrangement.

2. Whatever fruits (properly and improperly so called) the owner himself would have obtained, the author of the damage must restore. But fruits will always be understood with expenses deducted. Wherefore, since today a fruitful investment of money is to be presumed, almost always not only are the fruits of the damaged fruitful thing to be restored, but also, for the value of any destroyed thing which had to be supplied by another, a certain civil fruit will have to be restored. Yet that presumption can be destroyed by a contrary fact. That fruit will have to be estimated from the value of the hope, so that a greater amount is to be paid to a banker conducting prosperous affairs, but a lesser amount to him who conducts no business or whose condition of fortunes is unstable. But since the circumstances which ground the estimation of damage are often unknown, and the inquiry itself cannot remove the doubt, where there is place neither for composition nor for transaction, it will be enough to restore the thing with the customary interest of an entirely safe investment. For the owner either would have invested the money in this secure way, or would have sought a greater fruit, but at his own risk: by the interest of a safe investment that hazard is compensated to him.

3. A modest alms extorted by fraud, on account of presumed condonation, is not to be restored. But a large one, by him who lied about poverty itself or necessity, will indeed have to be restored. Many judge that the option then made of restoring it to the owner or to true poor persons remains. Falsely alleged probity is not thought to generate anything except an accidental error, which does not per se seem to stand in the way of the value of the donation.

4. He who has taken away a thing which is indeed fruitful but of small value and for which another is easily substituted seems to satisfy by restoring the thing taken away. Thus he who has stolen an ordinary hen generally need not be solicitous about restoring the eggs. For the willing owner had an easy supply of obtaining a similar hen; and the value of the hen is so modest that no civil fruit of the money which is necessary for buying the hen is to be thought of.

Yet it is necessary that the owner have noticed the matter. If not, he had no supply for substituting another hen for himself, and the eggs, today of a price not to be despised, which the hen secretly taken from the owner would have laid, would be owed to the owner.

I. One must begin from this principle: since private persons, in their mutual relation, are equally, as such, inviolable, and this independently of merit or demerit, a) none can be assumed by another as a means for himself; b) no evil of one's neighbor can be intended or chosen, but only, on account of a just cause, permitted; c) a conflict of rights cannot be had except about goods which, by first destination common, can pass from one person to another.

II. He is guilty of injury who takes away from someone, not freely consenting, the good of supernatural grace, of truth, of the use of reason, of reputation. Therefore he is injurious:

1. Who has induced someone to sin, or has prohibited him from entrance into the novitiate or from profession, not by mere persuasion and example, but has efficaciously procured this by fear or fraud: he must indicate apt remedies and repair other damages.

2. Who has taught errors, especially practical errors; for speculative ones are less damaging per se.

3. Who by fear or fraud has intoxicated someone not consenting, or by an injection of morphine has deprived him of rational life in sickness.

4. Each person has a right that he be esteemed and treated according to his own innate or acquired goodness. That right is violated by rash judgment, detraction or calumny, and contumely.

a) Rash judgment is an interior but firm imputation of guilt on account of indications which are known not to be sufficient. Wherefore, without an evil affection toward the person, it is scarcely committed. And it is judged grave against justice if it is concerned with a gravely defaming guilt.

Mere suspicion, or begun assent, and doubt, or suspension of assent, since they do not take away from the mind of the one suspecting or doubting every good estimation of one's neighbor, even if they are rash, are judged venial by their genus.

b) By detraction and calumny (which here is the false narration of a defaming thing) reputation is taken away in whole or in part, which is opinion or estimation concerning another's excellence. There is distinguished connatural and common reputation, by which one is immune from reprehension, and positive or special reputation, which one acquires by good merit. To the former every human being per se has a right; to the latter, only he who has merited it. For common utility itself requires that reputation be preserved whole for each person, and not perish on account of an accidental defect.

There is distinguished direct detraction, which is intended or chosen, and indirect detraction, which is actively permitted; formal, or blameworthy, and material. Detraction which is intended or chosen by a private person is always unjust; but proportionate utility excuses its active permission; and the good of reputation is situated in the high dominion of public power.

The gravity of detraction is to be estimated not from the thing narrated but from the consequent detriment of estimation. To narrate another's hidden crime to one prudent man is not judged grave per se. Besides a defect of advertence, also modest credence given, or a certain attenuation of the thing imputed, can remove grave detraction.

But charity can gravely forbid the revelation of a crime which is not opposed to justice.

Reputation is to be restored by praise of the person, by honor exhibited, and also, if the detraction was lying, by open retraction, before the immediate hearers, and also, per se, before the mediate hearers. He who in good faith is excused from fault must nevertheless impede the sequel of his action from justice, unless he is excused by a relatively grave inconvenience. The obligation of restitution can be taken away by impotence, condonation, reputation recovered, compensation of the injury, or danger of a greater evil.

c) Contumely is contrary to honor. Honor is a testimony concerning another's excellence or goodness. Therefore contumely will be a signification of contempt by words, writings, deeds, sometimes by the mere denial of honor.

It not only saddens one's neighbor and thus is opposed to charity; but it also injures, in the opinion of men, dignity itself or the title of honor, and besides, in the offended person himself, spirit and confidence for acting. Wherefore it is an injury per se damaging. It is mortal by its genus, whether on account of an affection of grave contempt or hatred, or on account of grave dishonoring: this can vary according to the quality of the sinner or of the dishonored person, so that a parent or Superior can even without sin need certain reproaches. The species does not seem to vary on account of the excellences despised. Contrary, therefore, to what Molina thought, De iust., tr. 4, disp. 46, not charity alone but also justice, independently of a simultaneous wounding of reputation, requires restitution of honor by acknowledgment of excellence, petition for pardon, etc., unless the offended person, by himself or through a judge, has taken vengeance. Contumely, in the concrete, is judged to be a graver injury than detraction, because by external treatment it seems as it were to complete detraction.

III. He is injurious who has injured the body of his neighbor.

1. Direct killing by private authority is intrinsically illicit; as is mutilation itself, unless it is directed to preserving the body or temporal life. By the consent of the patient the note of injustice can be removed, but not another malice. Grave cruelty in execution brings in a new species of ferocity. Accidental homicide or mutilation is imputed insofar as they were foreseen as probably going to follow from an action which, on account of such danger, was prohibited by natural or positive law.

Corollaries. a) The intrinsic malice of homicide and suicide infects the duel, i. e. a contest of two or a few undertaken from agreement, or from a preceding pact, with lethal arms. A pact, if it is freely entered upon and is not compelled by another's provocation, removes injustice. But the evils foreseen from a denied duel in no way excuse the duelist, since immunity is sought from the evil act itself; nor does fear from censure render him immune, lest it could commonly be eluded. Cf. I, 220.

A duel is punished a) by excommunication simply reserved to the Supreme Pontiff, which from c. 2351 strikes ipso facto: "those perpetrating a duel or simply provoking to it, or accepting it, or furnishing any assistance or favor, and also those watching it by design and permitting it or, as much as is in them, not prohibiting it, of whatever dignity they may be"; - b) by privation of ecclesiastical burial, which affects those who, without a sign of penitence, died in a duel or from a wound received from it; - c) by infamy of law, by which duelists and their seconds are marked.

b) To exercise embryotomy or craniotomy upon a fetus certainly or probably living is intrinsically illicit, since it is the certain or probable (by probability of fact) homicide of an innocent one, who, while he is developing in his own place, cannot be compared with a materially unjust aggressor.

Canonically, homicides and cooperators are irregular from delict (c. 985, 4°); a church is violated by a notorious delict of homicide or by an injurious and grave shedding of blood (c. 1172, § 1, 1° and 2°); a cleric legitimately condemned for homicide must be degraded, while a layman is ipso facto excluded from legitimate acts and from any function which he had in the Church.

2. Restitution. On account of a wound or killing there is owed to the injured person himself or to the heir: a) that compensation of the injured body which the judge has defined; b) compensation of foreseen spiritual damage through suffrages of which the victim was deprived; c) compensation of temporal damage: expenses of sickness, emergent damage or ceasing gain; not, however, funeral expenses, which would always have had to be made. To the wife and children certainly only those aliments must be restored by which they are deprived through that killing, since as regards the remaining patrimonial damage the killing is not injurious to the family. Nor is anything owed to creditors, since the debtor is not the thing of the creditor; nor to an insurance society, for whose utility the killing was not prohibited. - Nothing is owed from justice if before death the wounded person remitted all things, or if the wound was inflicted in a duel to which the killer did not compel the other unwilling person.

3. The direct procurement itself of abortion, i. e. the expulsion of an immature fetus, is never licit. For if the fetus is animated, a lethal wound, through abortion, is inflicted upon a human person; but if it is provoked in the first days, so that more probably a rational soul is absent, the character of malice against nature is shared. But when the danger of a dying mother is imminent, abortion would too late be attempted for saving the mother herself.

But the acceleration of birth will be licit as often as in this way the life of the infant is better provided for, or at the same time the life of both infant and mother, who is necessary to the infant, is provided for.

Those procuring abortion, the mother not excepted, incur, once the effect follows, excommunication latae sententiae reserved to the Ordinary, "and if they are clerics, let them moreover be deposed" (c. 2350, § 1). Those provoking abortion, once the effect follows, and all cooperators are also irregular from delict.

But indirect procurement of abortion is excused by a grave and proportionate cause.

Before present necessity, it is not lawful to cut out an ectopic fetus; when the necessity of saving the mother is urgent, that excision today cannot be condemned as certain. Nor is it established, unless probable baptism is excluded by this way, that the use of electric force or of an injection of morphine is prohibited more than excision, since, by way of one thing, that which can be compared with an ulcer and the human ovular content are destroyed.

4. A surgical operation, suppose a Caesarean section, which is necessary for procuring sufficiently certain baptism for the infant, must per se be undergone by the mother, even with her own danger. She is not bound to undergo that danger for preserving the temporal life of the offspring. But the mother is to be gently induced to obey the counsels of an upright physician. Once the mother is dead, Caesarean section must per se be performed, even for extracting an immature fetus who is hoped to be able to be baptized. But prudence today prohibits clerics from direct intervention.

5. He also is injurious who does not hesitate to harm another's health, for example by communication of a grave disease.

6. It is lawful to use necessary force for repelling an aggressor whose aggression is morally present, even if the defensive action certainly brings with it the effect of the aggressor's death, provided that a proportionate good, such as life, integrity of members, chastity, or a temporal thing of sufficient moment, either absolutely or with attention to the injured person, is placed in danger.

Vengeance differs from defense with the moderation of inculpable defense, because vengeance takes punishments after the perfect injury. In a civilized society this is reserved to public power, if you except certain medicinal punishments which are not very afflicting.

7. He who by force or fraud has extorted copulation from a woman is injurious to the woman, and, if she was married, also to her husband; the adulterer and his accomplice are injurious to the spouse not consenting.

To a girl for whom, through defloration, he has made marriage more difficult, the seducer must compensate that damage according to his powers: either by taking her willingly as wife, or by supplying a dowry. Reparation through marriage is more adequate, per se to be desired if the marriage can be happy; indeed then it must per se be imposed upon the promiser or deceiver. The expenses of supporting the offspring must be borne by the seducer alone, always preserving the duty of piety by which both parents are held in solidum to support the infant according to the condition of the mother.

Simple fornication is often not damaging. Fornicators take on the common burden of supporting the offspring. Except the prostitute, who is judged to have assumed that burden (otherwise rare).

Adulterers are held to repair according to their powers the damage which per se follows from supposed offspring, and probably they are in an equal place for that obligation. That damage is contained in the aliments and customary gifts or goods which legitimate offspring are accustomed to receive from parents or from ascendants. Greater detriments to be avoided bring it about that the adulteress scarcely ever has to confess the crime; and the other also, whether by too great difficulty or by doubt about his own paternity, is not rarely excused from the obligation.

An adulterine son is to be treated as a possessor in good faith, nor should he believe his mother revealing his origin.

Appendix. — Ask how far public power can dispose concerning the personal goods of citizens, and what must be observed concerning the law of war.

I. Not even public power can ever directly injure the innocent, even if it wished to take vengeance concerning the delict of others; but on account of the necessity of human society, God gave to it the faculty even of exacting capital punishment, the juridical order being preserved, unless the public safety has dispensed from preserving it.

II. It can also, when another way is lacking, declare war for its own defense, or for exercising vindicative justice. On account of a merely probable right, war cannot be brought upon anyone unless he has refused a friendly composition. And a competent satisfaction offered by the other party must per se be accepted. In defensive war it is enough that the committed injustice is not established.

Concerning the justice of war, common subjects indeed are not bound, but learned men and theologians or voluntary soldiers per se must inquire.

Those who are compelled to have a part in an unjust war must abstain from hostile acts, and only if they are personally invaded by an enemy in such a way that he is unwilling to give life to one surrendering himself, can they defend themselves.

In a just war, all those things are lawful which are necessary for the end of the war, and are not prohibited by natural law or by agreements. Faith given to an enemy must per se be kept. But reprisals can be exercised only against guilty persons or against goods, if it is necessary.

Since he who pursues his own right does not thereby make his condition worse, public power will be able to convert war into a duel of a few.

Once war has ended, restitution of expenses and of things taken can be sought on account of suitable satisfaction. And a treaty of peace, although signed under compulsion, must be observed, unless it has been vitiated by manifest inequity.

Even in an iniquitous war, since common soldiers do not seem to act from conspiracy, they are bound to repair only the damages which have been done by their own hand. The obligation of the commander or of public power is graver.

Irregularity from defect of mildness has been removed by the Code.

223. The other root of restitution to be made is unjust damaging perpetrated either by one or by several. Concerning this twofold damaging and concerning damaging in diverse matters, sufficient has been said above. In all matters and cases that one principle must be applied: There is no obligation of restitution on account of damaging caused:

a) unless the damaging action was truly, efficaciously, and formally unjust; or in other words: unless it injured commutative justice by an external act and by an internal act morally culpable; or:

b) unless after the just sentence of a judge or after a valid contract entered into concerning restitution to be made.

A few things remain to be said concerning restitution to be made by unjust cooperators.

The measure and order of restitution among several damagers. When unjust damaging has been perpetrated by several, a difficulty can arise as to the measure and order in which the individual damagers are held to restore. The following things should be noted:

There is a threefold measure of this kind among several damagers: for some are obliged in solidum absolutely, others in solidum conditionally (or proportionately and in solidum), and others simply proportionately. Solidarity, or the obligation of restoring in solidum, is generally the burden incumbent upon each of the cooperators of repairing the solidum, i.e., the whole damage inflicted. This solidarity is: a) absolute, if someone is held alone to repair the whole damage, without having the right to seek compensation from the other cooperators; e.g., the solidarity of one giving a mandate; b) conditional, if someone is held alone to repair the whole damage inflicted, but only upon the failure of the other cooperators. But if he actually restores the entire damage, he has the right to exact compensation from the other cooperators. Such is sometimes the solidarity of a participant. c) The obligation of restoring simply proportionately is the burden incumbent upon each of repairing only that part of the damage which corresponds to his cooperation; e.g., several thieves divide the spoils taken away.

224. Principle 1. Whoever (with others only assisting) was the principal cause of the whole damage is held to restitution in solidum absolutely; or, as St. Thomas says: "He who is principal in the deed is principally held to restore."⁷³

The reason is that he was the cause of the whole damage, and the other cooperators were only his instruments. This indeed appears most clearly in one mandating damaging with respect to the mandatary. For it would be exceedingly inequitable if one who mandates damaging to others, after the damaging has been done, exacted from them a part of the restitution to be made. Hence, e.g., one who commands a servant to cause damage to another is held alone to repair the whole damage caused, nor can he exact that the servant restore a part of the damage. But if the one giving the mandate does not restore, the servant, as a true cause (although secondary) of the damaging, is held to repair the damage caused. He who by force, fear, or threats induces another to violate commutative justice is to be equated with one giving a mandate.

⁷³ S. theol. 2, 2, q. 62, a. 7, ad 2.

225. Principle 2. He who together with others concurs efficaciously toward the whole damage is held to restitution in solidum conditionally.

He is indeed held in solidum, because his action really influenced the whole damage. But he is held only conditionally in solidum, because the same damage is also to be ascribed to the other co-causes. Now a cooperator is regarded as an efficacious cause of the whole damage in two cases, namely:

1. when his cooperation was so necessary for inflicting the whole damage that, had he not concurred, the damage would not have been done; e.g., someone cast a vote without which an unjust sentence would have been impossible;

2. when the whole damage caused arose from a common conspiracy; e.g., three men form a conspiracy, i.e., each morally moves the others to kill an enemy, who is in fact killed by one as the executor of that conspiracy.

In practice the uneducated are rarely to be obliged to restore conditionally in solidum, as will be said in the following number with St. Alphonsus.

226. Principle 3. He who, without a common conspiracy, together with others is a partial cause of the damage is held to restore proportionately to his influence.

Hence, if several concur in committing a theft, each one is held to restore proportionately to his influence and to the goods taken away.

A partial cause of damage is one which is neither sufficient nor necessary for perpetrating the whole damage, such that even without it the effect would have occurred, although perhaps not so easily. E.g., two thieves wish to enter a certain house by night in order to steal. A third thief joins them, and thus the theft is perpetrated more easily. All three are partial causes, and each one is held to restore only as much as he stole.

The three principles stated can be comprehended briefly thus: When several cooperate toward unjust damage: 1. the principal cause is held in solidum absolutely; 2. a secondary cause is held in solidum conditionally if it efficaciously caused the whole damage; 3. otherwise a secondary cause is held proportionately to its influence.

You will ask: What is to be done in doubt: a) whether someone was the total cause of the damage; b) whether the others restored their part?

In the first doubt he is held only to a part, because a certain burden, namely, of restoring the whole, cannot be imposed for an uncertain obligation. Except, however, if by his action he knowingly rendered the matter uncertain. E.g., when several men violated a woman by force or fraud, they are held conditionally in solidum to repair the material damages caused by those violations.⁷⁴

In the other doubt, some answer that there is no obligation of restoring the whole. Thus Noldin.⁷⁵ St. Alphonsus writes to the point:⁷⁶ "The Salmanticenses and Roncaglia deny it, saying that each one is held to restore only his part, because it is to be presumed that the other associates have already restored. But this is by no means approved by me. It should nevertheless be noted that, although the uneducated are held in solidum, it is rarely expedient to oblige them to the whole, since they will with difficulty persuade themselves that they are held to restore the part taken away by their associates. - Indeed, it can quite well 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 would restore nothing if they were obliged to the whole." Therefore, the confessor should then commonly exhort the penitent to restore what he owes, without explaining the precise quantity, leaving that to the dictate of his conscience.

⁷⁴ Thus at least more probably; cf. Lehmkuhl, Theol. mor. I, n. 1165. St. Alphonsus seems to favor the contrary opinion, Theol. mor. l. 3, nn. 562 and 658.

⁷⁵ De praeceptis n. 489.

⁷⁶ Theol. mor. l. 3, n. 579.

227. On the order to be observed among unjust cooperators.

This question is closely connected with the preceding one. For the measure of the restitution to be made and its order are ordinarily proportionate.

Principle. If the cooperators inflicted the damage in the same degree and manner, each ought to restore equally and indiscriminately; but if they exercised influence in a different degree, they are held in the following order: 1. he who now detains the thing; 2. the one giving the mandate; 3. the executor; 4. the other positive cooperators; 5. the negative cooperators.

Explanation. An equal order is present if each cooperated in the damaging in an equal manner. E.g., five thieves took away the sum of 10,000 francs. Each one is held first and immediately, without regard to the other thieves, to restore 2,000 francs.

But when they exercised influence upon the damage in an unequal degree:

In the first place, he who detains another's thing, whether in good or bad faith, is held to restitution, because the thing cries out to its owner. If the thing no longer exists, he is regarded as the detainer who above the others obtained profit from another's thing.

In the second place, upon the failure of the detainer, the one giving the mandate is held to restitution, because he is the principal author of the damage. A counselor, however, is equated with one giving a mandate: a) if he induced the other into invincible error; b) if the damage which followed from the counsel was useful to the counselor alone and not to the executor.

In the third place, the executor is obliged, because he acts in some way in his own name and, after the one giving the mandate, has a more principal part in the damage than the other cooperators.

In the fourth place, the other positive cooperators are held, namely, the counselor, the consenter, the flatterer, the receiver, and the participant. Among these there is no order, provided, however, that they caused the damage in nearly an equal manner.

In the last place, the negative cooperators ought to restore, namely, the silent one, the one not obstructing, and the one not disclosing, because these ordinarily have less influence upon the damage than all the others.

Corollary. If the principal cause of the damage restores or obtains remission from the legitimate owner, all the secondary causes are then held to nothing. Conversely, if a secondary cause restores or obtains remission of his part, the principal cause is not thereby freed, nor are the other secondary causes. If one of the secondary causes restores his part, the principal cause is held to compensate him; but if he restores the whole, then, upon the failure of the principal cause, the other secondary causes also ought to compensate him according to a proportionate part.

S. Th. II-II, q. 62, a. 4.

289. The first title of restitution is unjust taking (benadeeling). — An unjust receiver or damager is one who voluntarily inflicts damage on another without a just cause, even without gain, whether physically or immediately through himself, or morally and mediately by cooperating with another. Damage is an unjust detriment inflicted upon a neighbor by the action of another, whether by an internal act, as by rash judgment, or by an external action, as by taking away, destroying, detaining another's thing, for example, by theft, fraud, usury, or by not impeding what from justice one is bound to impede, or by cooperating with the same. Now "whoever damages someone seems to take away from him that in which he damages him: for damage is spoken of from the fact that someone has less than he ought to have... And therefore a man is bound to restitution of that in which he has damaged someone," q. 62, a. 4.

290. The general principle is: In order that the damager be bound to restore, three conditions are required together, namely, that the action (or omission) be truly, efficaciously, and formally unjust; or that the cause be 1) unjustly damaging, namely, that it inflict rigorously unjust damage or injure strict right, 2) efficacious of the damage, and 3) culpable.

St. Alphonsus, III, n. 582-588; ed. G., II, p. 73 seqq.; H. Ap., X, n. 60; Aertnys, l. III, n. 341; Lehmkuhl, I, n. 1160; Genicot, I, n. 514; Noldin, II, n. 430; Tanquerey, II, n. 587; Berardi, Theol. mor., III, n. 305.

919. Notion. Unjust damaging, in the strict sense, is an act by which, through formal injury, damage is inflicted upon one's neighbor, without any advantage of the one inflicting (cf. n. 948 seqq.).

General Principles. I. Unjust damaging is a sin from its genus grave. The reason is clear. Hence, no otherwise than theft, it admits smallness of matter that excuses from grave sin (cf. n. 904).

II. Formal damaging does not extend more broadly than foresight, at least confused, of the damage inflicted itself. The reason is clear from the things said in n. 724.

This species of injury will bring with itself very many things to be investigated and weighed in Dissertation III, where we shall treat of restitution. - In this place it will be enough to have discussed three cases in which injury is accustomed to appear doubtful, namely: 1. concerning a thing abandoned or put away in danger; - 2. concerning privation of a hoped-for thing, or concerning one impeding the obtaining of a just good; - 3. concerning unjust distribution of offices.

920. QUAER. 1. Whether you ought to prefer another's endangered thing, deposited with you or in any way committed to you, to your own thing, so that you are held concerning the damage if you have not preferred it?

Resp. Dist.: the contract or act by force of which you have another's thing either yields to your utility alone, or to the utility of the other alone, or to the utility of both. - If the first, for example if you have received the thing by commodatum, i.e. so that you may use it, you must prefer it to your own; unless yours is more precious, but in this case you are held to make the owner of the other thing unharmed, because the thing perished for your favor alone. - If the second, for example if you have received the thing by deposit, it must be subdistinguished: a) if the other thing is far more precious, you must preserve it; nevertheless, you can demand compensation of the whole damage that you have suffered in preserving it. - b) If your thing is almost equally precious, according to some you are not held to prefer another's thing to your own, since you retain this for the utility of the other alone; according to others, you are obligated to prefer the thing of another, since with respect to that thing the reason of justice intervenes, but with respect to your own, the reason of charity alone. - If the third, for example if as a broker you have been hired at a price to sell another's thing, there are those who think that, other things being equal, you can prefer your own thing; because charity does not oblige that in equal necessity you prefer another's thing to your own; but others judge that some compensation is owed to the other party, which is more equitable

seems more equitable. Here the Codes of commerce are to be consulted (III, 752; Lessius, l. 2, c. 7, n. 27).

QUAER. 2. Whether he is guilty of unjust damage who again commits another's thing, which he has withdrawn from danger, to the same danger, in which it afterward perishes?

Resp. Some, very probably, affirm, because that better condition which another's thing had obtained has become a certain quasi-accession for the advantage of the owner. Others, no less probably, and perhaps more probably, deny, whenever the avoidance of one's own damage requires that the thing be put back in its own place; for thus no injury is done, because no one is held to preserve the thing for the owner with his own damage.

Therefore, if you have taken away another's thing found in the road, and afterward you know that you will suffer damage if you retain it, you can rightly put it back in the same place and permit another to carry it away, although by doing this you put the thing into a worse state; for then the taking by the thief occurs from his own malice, and your cooperation is only permissive of another's detriment, which you are not held to avoid with your own damage (III, 569).

STATE OF THE QUESTION. It is asked whether he is an unjust damager who impedes another from obtaining a just good. For a man can be damaged not only in the goods which he actually possesses, but also in those which he hopes for, such as, for example, spiritual goods, whether supernatural or natural, and temporal goods of a benefice, alms, a legacy, etc.

NECESSARY DISTINCTIONS. 1. These goods which one's neighbor hopes for are often owed to him from justice, because concerning them he possesses a right in a thing or a right to a thing; sometimes also they depend upon the merely free will of those conferring them.

2. One's neighbor can be impeded, lest he obtain hoped-for goods, in many ways: a) directly or indirectly, according as an impediment is placed with the intention or with the mere foresight of inflicting damage; b) efficaciously or not efficaciously, according as the action of impeding obtains in itself a greater or lesser force; c) by just or unjust means, according as the means employed in themselves tend against something to which he has a right; for example, if someone impedes his neighbor by fraud, most importunate prayers, calumny, or force, he uses unjust means, because one's neighbor has a right to liberty in acting and to the preservation of reputation. But if someone has recourse to persuasion, counsel, or non-importunate prayers so that his neighbor may be turned away from obtaining the hoped-for good, there can be no question of injustice, since neither the liberty of the giver in willing and acting nor the reputation of the one aspiring to the benefice is injured.

Note. Those means must be directed against the neighbor; but if they are directed against the benevolent giver of the hoped-for good, then they will be formally unjust toward the one hoping for the benefit only if they directly redound to his damage; for example, if the benefactor is struck with fear, lest he ever confer a benefit on anyone.

921. PRINCIPLES. I. To impede another efficaciously, even by non-violent means, from obtaining a good owed to him from justice is unjust damaging, whether it is done directly or indirectly, without a just cause. The reason: in this case it is verified that your action is the true cause of the damage inflicted on your neighbor. See what will be said in nn. 949 and 979 concerning an effectively unjust action and concerning unjust counsel.

From these things conclude: If someone without cause moves a father by prayers to this, that he deprive his son of a due inheritance, he is the author of the damage which the son suffers. - Generally, in whatever way truly efficacious impediments are set against the strict rights of a third party, there is injustice, which obliges to restitution.

II. To impede one's neighbor efficaciously from obtaining a good to be conferred from free will will be unjust damaging only then, if it is done by unjust means. The reason is that, as regards goods of this sort, another does not have a right, since they are to be conferred freely.

We said 1. It will be unjust damaging. But the magnitude of the damage to be repaired here must not be measured from the magnitude of the goods which were expected, but rather from the hope itself which the neighbor had. Therefore in practice such a damager will always be bound to less.

2. Only then ... if it is done by unjust means. There will be no unjust damaging if someone acts from hatred or vengeance; there will be only a lesion of charity.

Conclude from what has been said: a) He is not held to restitution who, although he does this from hatred, without deceit or force moves a testator not to leave an inheritance to a friend; who dissuades a Bishop from conferring on someone a simple benefice, for which a competition is not used; who by lies impedes the treasury from obtaining a sentence favorable to itself for juridic fault (III, 583, 588). Cf. Lehmkuhl, Cas. Consc., nn. 690-694; Ami du Cl., 1903, p. 297.

b) But he is held to restitution who calumniates a poor person, lest he obtain alms; a servant, lest he be admitted to service, etc. He is held, even if he only foresaw these inconveniences, provided the privation of the hoped-for good is to be ascribed to his calumny.

c) He is held to restitution who suppressed another's open letters, or retained them so long until he himself or others anticipated the writer in obtaining, in his place, the good which he expected. The same must more probably be said of him who, although he delivered the letters in due time, used the knowledge which he had acquired from them, so that he might anticipate or impede the writer (III, 585). See what is to be said in n. 1188.

III. To impede someone from averting the damage of one's neighbor is unjust damaging if it is done by unjust means, or if he who is impeded has been deputed by office to avert the damage. The reason for the first is clear from the preceding principle. The reason for the second is that, from the fact that he must avert the damage by office, the neighbor has a strict right to this, that you not turn him away, even by persuasion, from fulfilling his office.

Note. Here it is always supposed that the means employed place an efficacious impediment (cf. n. 980).

It is asked. If someone impedes another, even by unjust means, from obtaining a good which cannot be accepted or conferred without sin, whether he must restore?

Resp. Negatively, provided the acceptance or conferral is sinful on the part of the thing, for example the donation is prodigal, the testamentary disposition is illicit. The reason is that, although there is sin in the fraud or calumny employed, nevertheless no new malice of injustice is joined to this by reason of the impediment placed, since the neighbor possesses neither a right to the good which he seeks, nor a right not to be impeded by any means whatever from obtaining this good. Cf. Lehmkuhl, I, 1162.

922. An unjust distributor of public offices injures principally distributive and legal justice, and subsequently commutative justice (cf. n. 400).

It is asked. Whether he who chooses an unworthy or less worthy person is held concerning the damage that follows?

1. With respect to the society: a) He who chooses an unworthy person is held concerning the damages which thence come upon the community and were foreseen. The reason is that, by force of a quasi-contract between himself and the society, and often by force of the stipend which he receives, there lies upon him an obligation from justice to procure the good of society, and consequently not to choose an unworthy person. - b) He who chooses a worthy person, while passing over a more worthy one, more probably is held to nothing toward society, even if perhaps he has sinned gravely. The reason is that the society is not judged to bind electors by so rigorous a title, namely by the title of strict justice, to choose the more worthy (III, 585; IV, 106).

2. With respect to those to be chosen: a) More probably he is held to nothing toward the worthy or more worthy person passed over, if no competition has been instituted. The reason is that he has violated no one's strict right. b) It must be said otherwise in the case of a competition, as is very commonly taught against some, whose opinion nevertheless St. Alphonsus does not dare to condemn as improbable (IV, 109; H. Ap., XIII, n. 37).

The reason for doubting is that public offices and benefices are instituted solely or principally for the common good; and therefore they are not conferred as prizes promised to those competing in a contest, which are instituted principally as rewards of merits. - A fuller discourse concerning these matters will be given in n. 2240. Cf. Noldin, II, 454.

We must treat: 1. of the unjust damager in general; - 2. of various damagers in species.

948. An unjust damager is said to be one who injures another's right, or harms his neighbor in goods, without thence becoming richer of himself or directly.

PRINCIPLES. I. An unjust damager is held to restore an equivalent price, both of the thing damaged and of the other damages which have come from his action and were at least confusedly foreseen by him. The reason is that the injured owner must be made wholly unharmed, according to equality (cf. n. 931). Yet injury is to be estimated not from damage only, but also from the will of the agent (n. 724).

949. II. In order that a damaging action induce an obligation of restitution from the law of nature, a threefold condition is required, namely that the action be strictly, effectively, and formally unjust; and these three things are altogether certain. These are to be explained part by part (cf. Lugo, disp. 8).

Condition 1. It is required that the damaging action be strictly unjust, that is, that one's neighbor has been despoiled of some thing to which he has a strict right. The reason is that the obligation of restoring, as we have already often said, arises from the violation of commutative justice alone (III, 547).

It is explained: 1. The strict right which can be injured is either a right in a thing or a right to a thing, which supposes a legitimate title. You do not have a right to all things to which your neighbor, in conscience, is obligated either from charity or from religion, namely a vow.

2. He violates a strict right who takes away the thing of his neighbor, although he himself abuses it for sinning (see nevertheless n. 1020); indeed although he received it as remuneration, a pact concerning a shameful thing having preceded (n. 1036). Cf. Lehmkuhl, Cas. consc., n. 691.

3. He violates a strict right who inculpably indeed has placed an action harmful to another, but culpably does not impede it from proceeding; for example, if someone does not extinguish a fire applied by himself without fault to another's houses; or does not warn a buyer after he has noticed that he gave poison for a remedy (III, 564, 994; VI, 621). Therefore there is an obligation of restitution.

4. Nevertheless a damager is not held to restitution who had the right of placing an action harmful to another. For the Rule of Law, Law 151, de Reg. Jur., favors him: "No one does damage, except because he does that which he does not have the right to do." Thus a merchant is not unjust who sells at the lowest price, although he injures other merchants; nor a proprietor who turns waters from his own field into another course harmful to his neighbor, lest he himself suffer gravely; nor a smith who sells a sword to a homicide, lest he himself perish by death. - But otherwise, if actions of this kind are placed without a just cause (III, 584, 697). Similarly, the owner does not act unjustly who digs a pit on his own estate, although he intended that an enemy, whom he knows sometimes passes through there illicitly, should fall and break his leg. Lehmkuhl, Cas. consc., n. 672. Nevertheless charity requires that the enemy at least be warned in general.

5. He is also not held to restitution who has injured charity alone, for example if you were conveniently able to impede the burning of another's house and were unwilling; or religion alone, as if you neglected your vow; or piety, for example if you did not feed your needy parents; or legal justice, if, for example, you denied a crime as accused or witness, lest your own or another's goods be applied to the treasury; or distributive justice, if, for example, by distributing alms left by legacy to the poor, you neglected the poorer. And the same must be said of every debt which does not arise from commutative justice (III, 547, 583).

Condition 2. It is required that the damaging action be effectively unjust, that is, a true and efficacious cause of the damage. The reason is clear: for only the author of damage is held to repair it. Therefore it is required: a) that the damage has truly been inflicted; for damage merely willed, just as also that of which you indeed placed the cause, but which another impeded, for example in a fire made by you but extinguished by another, brings no obligation of restitution; b) that the damage has emanated from your action as from its proper cause; for there can be no obligation of restitution unless the cause of the damage is established, and the true influence of this cause into the damage (III, 562, 584; cf. II, 43, 45).

Hence: 1. It does not suffice for the obligation of restitution that injury without damage has intervened. Thus, he who committed adultery without the damaging of another is held to no restitution in conscience, although he can be compelled by a judge to make satisfaction for the injury (III, 556).

2. The occasional cause of damage does not suffice, because it is not an efficacious cause, but only the occasion of an efficacious cause, that is, at whose presence the principal cause acts. Hence, if by occasion of a theft or homicide perpetrated by you, another has been accused and condemned, you are not held to repair his damage. - And the same holds even if you foresaw this or even intended it, unless the circumstances of the action were such that they proximately and morally influenced the imputation against the third party, say if you killed clothed in the garments or arms of Paul (III, 635). - In this last case the guilty person is held from justice to denounce himself, or at least to turn suspicion away from the accused; otherwise he would be held from charity alone. - Hence also, if, by occasion of a violated sacramental seal, Peter has learned the author of a theft, so that through proofs and indications he can reclaim his good before the judge, he, Peter, although he sinned by listening to the thief's confession, is not the efficacious cause of the damage which comes upon the thief from the sentence of the judge. Linz. Quart. Schr., 1906, p. 829. Ami du Cl., 1905, p. 971, certainly otherwise. Cf. the things to be said in n. 1188.

3. A cause without which the effect would not occur does not of itself suffice; for example, if you did not return the sword, another would not be killed: from this you do not become the efficacious cause of the damage.

4. A remote and accidental cause does not suffice; for a cause of this sort does not of itself and directly influence the damage, but through some unforeseen and improbable accident; and therefore it cannot be called the efficacious cause of the damage (III, 632). Now damage is judged to follow by accident when for the most part it does not arise from the cause posited, or even could not arise from that alone without the concurrence of other causes.

5. Likewise he is not held to restitution, according to the more common and more probable opinion, who by his bad example has induced others to inflict damage. For bad example is not properly a cause positively influencing the damage, because of itself it does not tend to this, that it impel others to doing the same thing; but it is a mere occasion at whose presence others, of their own accord, take up the thought and counsel of inflicting damage. See the things said above under 2. - But it must be said otherwise if the example should put on the nature of counsel or mandate, for example if the leader of soldiers began to plunder (II, 44).

Note. a) According to grave authors, sometimes a cause which ordinarily influences damage by accident is considered as a cause causing damage of itself, if it is placed solely with the intention of harming. Causes of this sort would be, for example, to steal something small from a miser so that he may become sick; to place a snare in a forest so that an enemy, rarely passing through, perhaps may bring evil upon himself; to kindle a fire in a remote place so that, if perhaps a wind arises, the granaries of the enemy may be burned. - Nevertheless it is not to be denied that this theory concerning the efficacy of intention with respect to action does not please all, as we noted in n. 727. See Lehmkuhl, Cas. consc., n. 713.

b) Since attention should rather be paid to the action considered in itself, it follows that if someone culpably placed the cause of damage and afterward, led by repentance, tried to impede the damage, but in vain, he is nevertheless held to restitution. For retractation takes away fault before God and contumacy before the Church (n. 1264), but it does not change the natural influence of the action. - Except if it is a question of counsel, whose influence revocation takes away (n. 982). Cf. St. Alph., III, 559; VII, 40.

Condition 3. It is required that the damaging action be formally unjust, that is, theologically culpable.

For a twofold fault is distinguished, namely theological and juridic.

Theological fault is the omission of ordinary diligence which the matter demands and which is customarily employed by the timorous in their own office; and indeed a voluntary omission, whether in itself or in its cause. According to the degree of the damaging, it constitutes sin, whether grave or light.

Juridic fault is the omission of diligence required by positive Law or by the nature of the contract for forestalling damages, although in the omission no theological fault intervenes. This omission is called lata fault if the diligence which men commonly are accustomed to employ in a similar business is omitted; light, if the diligence which diligent men, as a good father of a family, employ is omitted; very light, if the diligence which the most diligent put forth is omitted (III, 549). - Juridic fault becomes theological fault only then when due diligence is advertently omitted; because, when there is no advertence, not even in the cause or in a confused way,

there is lacking consent of the will into the damage, or the mind of harming. - Very often broad juridic fault has theological fault as its companion.

Therefore the sense of the third condition here is: In order that there be an obligation of restitution, there is required, on the part of the one causing damage, broad juridic fault placed advertently.

It is proved: "In order that conscience remain obligated, it is necessary that the delict have been perpetrated in conscience" (H. Ap., X, 39). Thus from natural Law.

Hence there is no obligation of restitution, at least before the sentence of a judge: a) If you killed an enemy whom, in killing, you thought to be a wild beast, even if you rejoice after the fact. - b) If a thief, by occasion of the theft, indeed efficaciously, but beyond all advertence, inflicted a new damage, for example because by overturning a lamp he excited a great fire. - c) If a maidservant from merely juridic fault breaks the crystal vessels of the owner. - d) If an industrial man omitted in his workshop the slight precautions prescribed by law, while ordering all else prudently, and a great misfortune occurred (Lehmkuhl, Cas. consc., n. 665). - Some authors indeed judge that there is an obligation of restitution if someone, in doubt whether damage may come upon his neighbor from his action, omits diligence required only by law. Yet this obligation is not established (III, 551).

Note. 1. From merely juridic fault there sometimes arises an obligation of restitution; and this can happen under a twofold head: a) By force of positive law, after the sentence of a judge. Thus a judge can justly condemn you to the reparation of damage truly inflicted by your animals or by boys committed to you, without theological fault;¹ and such a sentence obliges in conscience from legal justice (cf. n. 192). Yet the law itself does not oblige before the sentence, unless theological fault was present, as is commonly taught (cf. n. 933). b) By force of an express convention in contracts, or in fulfilling offices; for you can often justly obligate yourself even concerning a fortuitous event, as will be said in its place (cf. n. 1162).

We said by force of an express convention, in contracts; for Lessius, Lugo, and others teach very probably that it is not equitable to oblige someone in conscience to a grave penalty, without grave fault of his, whenever it is not established that he wished to subject himself to juridic fault alone (III, 554). - The same reason holds for quasi-contracts, or fulfilling offices. Wherefore no one obliges physicians, advocates, confessors, and theologians to restitution from juridic fault alone; for if the matter were otherwise, no upright and timorous man would wish to discharge these offices, which would fall to the damage of the republic (III, 555). See nevertheless what is to be said in n. 974.

2. From venial theological fault, sometimes, although grave damage is truly present, there arises no obligation of restitution: if namely the theological fault is venial by reason of inadvertence or indeliberation. Thus the more common and more probable opinion. An obligation of restitution under grave sin is not induced, because such an obligation does not have proportion with light fault; not under light sin, because a light obligation does not have proportion with grave matter; so much the more because fault imperfectly deliberated cannot induce a perfect obligation, just as in contracts and vows an obligation does not arise from consent not fully deliberated.²

3. Finally, all know that theological fault which is venial by reason of the damaging obliges to restitution under light sin (cf. n. 927).

It is added, 4. that these three things be altogether certain. Doubts concerning a damaging action can be moved: a) before the fact; concerning these antecedent doubts we are not speaking. All know that an action is licit to no one concerning which one antecedently and positively doubts whether it is unjust or not (cf. the things said in n. 81). b) After the fact, that is, subsequently to the damaging action already placed. But the object of doubt in the case can be either the existence of the damage, or the efficacy of the action, or its injustice taken objectively, or the theological culpability of the agent; and we say: as long as these doubts have not passed into certitude, there is no obligation of restitution. The reason is that, where it is a question of goods of fortune, no one ought to be deprived of his certain right unless it is established that the right has been lost (nn. 44, 850). Compare St. Alph., III, 562, 658; Conf. dir., X, 20.

Yet a twofold exception must be admitted: 1. If several have acted by common counsel, and afterward a doubt arises in what degree each concurred. 2. If someone inflicting damage notices that, by his action, he is the cause why the author of certain damage becomes uncertain. Cf. n. 963, 2.

950. Special question: On error in damaging.

In the matter of damaging, there can be a twofold invincible error: one concerning the object, the other concerning the person.

I. ERROR CONCERNING THE OBJECT. If someone thinks from invincible error that the damage inflicted by him is much less than it really is, he is probably not held to restoring except in proportion to the known damage. The reason: that damage which is not known, at least in a confused way, is not judged willed.

Thus, therefore, he who throws into the sea another's gem worth 100 aurei, thinking it to be worth only 10, must restore only 10 aurei (III, 613). See nevertheless the note to be placed below.

II. ERROR CONCERNING THE PERSON. If someone, intending to harm one person with any other excluded, harms another by invincible error, he probably cannot be obligated to restitution in the internal forum before the sentence of a judge. The reason is that it is not enough that the damaging action be unjust, but it is required that it be formally injurious toward the one damaged; and therefore error concerning the person is a substantial error.

Therefore if someone, wishing to kill Caius, kills Titius; intending to burn the house of an enemy, burns the house of a friend, etc., he will not be constrained to restitution. Thus St. Alphonsus (III, 628, 629), Lugo, Croix, and others.

Another probable opinion is given concerning this question. Besides Bonacina and Haunold, recent authors defend it, such as Lehmkuhl, Vermeersch, Noldin, Tanquerey, Schindler, Pruner. They affirm that in the case there is an obligation of restitution, because, they say, that action is unjust, an efficacious cause of damage, and theologically culpable, and error concerning the person is only accidental. These arguments are indeed not slight; nevertheless the reasoning of our holy Doctor is not to be despised, which even the adversaries concede; hence the possessor is to be favored.

Note. Yet in each mode of erring there is an obligation of restitution: a) If the damager was actually so disposed in soul that, even if he had known, nevertheless he would have inflicted the damage; because then ignorance was not the cause of the damaging. b) If he has been condemned by a judge; because in doubt one must stand for the judge (III, l. c.). Cf. Genicot, I, 522; Linz. Quart. Schr., 1905, p. 890; Ami du Cl., 1905, p. 984.

951. The unjust damagers concerning whom one must especially treat are: 1. a homicide; - 2. a stuprator or fornicator; - 3. an adulterer; - 4. one defrauding taxes; - 5. one inflicting damage by occasion of military service; - 6. one negligent in fulfilling an office. Concerning one who causes damage in spiritual goods, or in other goods, see nn. 513, 928, 1205, 1214.

In order that it may be known what and to whom a homicide must restore, a threefold genus of damages must be distinguished, which can be inflicted in goods of fortune through homicide, namely damages which are inflicted: 1. on the one killed himself before his death; - 2. on his family, that is, on his children, parents, and wife; - 3. on his creditors.

We are not speaking of compensation to be given on account of bodily torments, or the other damages which bring no loss in goods. For from these there does not arise an obligation of restoring except after the sentence of a judge, if namely positive laws grant the damaged parties the right of exacting reparation. Cf. German Law, 847.

952. PRINCIPLES. I. A homicide or mutilator is held to compensate all temporal damages which, from his crime, have been inflicted on the one killed or wounded. The reason is clear from the things said above (n. 948); for killing is of itself the cause of damage. - The one attacked himself who, with true deliberation exceeding the moderation of inculpable defense, kills the attacker, is held to compensation of damage. For the enemy, on account of his unjust aggression, does not altogether lose the right which he has to life. St. Alphonsus, III, 637, with Lugo and others. Cf. the things said in n. 734.

The homicide is held to compensate all damages, and indeed: a) damage emerging, or the expenses of treatment, etc.; b) profit ceasing, that is, the profit of which the one struck has been deprived during the time of his infirmity because of the interruption of labor, and which he had in hope; yet with the expenses which would have had to be made to obtain the profit deducted according to prudent estimation; likewise with funeral expenses deducted, unless perhaps on the occasion of the death inflicted, for example outside the fatherland, greater expenses had to be made, or unless he is bound by the judge to refund them.³ In Germany he is held to pay them (§ 844).

Compensation must be given not only to the wounded man himself, but these debts, as real, are to be paid to the heirs of the slain person, whoever they are; because all heirs succeed to all the real rights of the deceased. Except if the deceased before death validly remitted these things to the killer. We say validly; for he would remit them invalidly if he were so poor that he could not have made the necessary expenses from his own goods, or if from such remission others, for example physicians or benefactors, would be unjustly burdened (III, 630; H. Ap., X, 86).

953. II. A homicide is held to repair for the family of the one struck the profit ceasing for them and the damage emerging on account of the wounding or death of the one killed. The reason is that all the aforesaid persons, but not brothers or sisters, are judged morally one person with the one killed as regards sustenance; hence even after his death the damage is continued in them (III, 631; H. Ap., X, 87; German Code, 844).

Let it be noticed: 1. The reparation of damage must be made according to the value of the hope which each one had, considering the age, health, etc., of the one killed or wounded, of receiving goods or advantages from him if he had not been killed or wounded. 2. Compensation to be made to the aforesaid persons is not from the title of inheritance of the one killed, but from the title of damaging inflicted on them, and therefore it could not be condoned by the one killed. 3. If there is no damage, either because those persons receive sustenance equally from elsewhere, or because the deceased was bringing no utility to them, there is no obligation of compensating. 4. The best mode of compensating is a peaceful settlement with the persons mentioned (III, 631).

954. III. A homicide is held to restore, in proportion to hope, to all those whom he directly intended to harm. Thus, for example, he is held to compensate damages to consanguineous creditors, or to the poor, whom he wished to frustrate of the hope of payment, inheritance, or alms; because each one has a right not to be directly and by force impeded from obtaining a just good.

It was said: whom he directly intended to harm; because if damages of this kind were only foreseen and not intended, a certain nexus is lacking between the homicide and the damages that followed; those are judged to have happened by accident, and it is more probable that the killer, in this case, is held to nothing by reason of justice (cf. 921, 949, Condition 2). St. Alph., III, 632, 633.⁴ See nevertheless the things said in n. 727, II, v. fin.

IV. In defect of the homicide, his heirs are held to compensate the aforesaid damages, even if the killer is punished with death. The reason: punishment satisfies vindicative justice, and therefore legal justice, but not commutative justice. Heirs succeed to all the strict burdens of the killer. Except if the injured parties are judged to yield their right, from the fact that they do not seek restitution (III, 631, 705).

955. Questions. QUAER. 1. To what is one provoking to a fight held, if he kills the one accepting, for example in a duel?

Resp. According to the opinion of Suarez, he is held to restore the damage, because the provocation was a true cause of the damage. - But Lugo (disp. 11, n. 66), with Vasquez and others, more probably contradicts; because although the one provoking sins against charity, nevertheless the other, since he freely accepts the fight, renounces his right to the reparation of damage (III, 638).

Note. Another question is related to this question: whether there is an obligation of restoring if one provoking to a duel is the cause why the one provoked, refusing the contest, is expelled from the army, or undergoes other damages.

Resp. It is not established that the provocation is the cause of itself of the damages which the one provoked suffers; rather it itself is their occasional cause; hence restitution is not to be imposed. Cf. the things already said in n. 949, Condition 2 and the added note.

QUAER. 2. To what are administrators of railways or ships held, if, the rules of prudence not having been observed, someone is killed or wounded in them?

Resp. They are held to pay as much as the judge by equitable judgment decrees must be paid; and they sin and are held to restore if by fraud, deceit, or bribes they induce the judge to render an unjust sentence (Konings, n. 808, q. 4).

Note. It is counsel that the confessor impose alms and Masses for the benefit of the one killed, for the killing itself (III, 631, 5). Cf. the things said in n. 928. If the homicide is imputed to an innocent third party, see n. 2302, q. 1 and 2306 seqq.

956. Here stuprator is understood in a broad sense as whoever has had relations with a free and honorable person, that is, one who is neither married nor a prostitute. Hence what we shall say concerning a girl is to be understood equally concerning a widow of good reputation (III, 646, fin.; Conf. dir., X, 38).

Now a threefold case must be distinguished: either the woman consented spontaneously in the crime; or she was induced by force or fear; or under a promise of marriage.

957. PRINCIPLES. I. He who has violated a consenting girl, without any promise of marriage, is held to nothing, of himself strictly speaking, except to the education of the offspring, if perhaps one is born. The reason: 1. he owes nothing to the girl, even if he solicited her with gifts or prayers, because injury is not done to one knowing and willing; 2. he owes nothing to the parents, because he did not violate their right, since the daughter is mistress of her own body. Hence authors very commonly say "that the man is not held to make good to the father the damage of goods by reason of the greater dowry which he needs for placing the daughter in marriage" (H. Ap., X, 91).

We said 1. Of himself; because exception is made: a) if the stuprator has manifested the delict; for then he is held concerning the damages following from defamation; b) if he is very rich, and the girl poor; for in this case she is presumed to have consented under the condition of some compensation; c) according to some, if by the sentence of a judge he is compelled to repair damages; but in truth, since laws presume deception or force, such a sentence, if the woman truly consented spontaneously, does not bind the conscience (cf. n. 191).

2. Strictly speaking, or in the rigor of justice; for the stuprator, at least from piety, against which he offended together with the girl, ought to repair the injury of the parents by some signification of honor or by asking pardon, unless perhaps they are ignorant of the delict, or are presumed to refuse such a reparation of honor. Thus probably St. Alphonsus with Sanchez, Croix, Lugo, etc., against St. Thomas and St. Antoninus, etc., who equally probably say that he is held from justice to repair the honor of the father (III, 641).

3. Except to the education of the offspring; for since the stuprator and the girl are equally in fault, both are held, and indeed from natural right, equally and in solidum, to feed and educate the offspring until it can provide for itself. Nor can any disposition of law or sentence of a judge exempt from this obligation (cf. n. 700). Cf. French Code, 340; German, 1708; Austrian, 166-171.

Note. If the girl has had relations with several lovers, it is not licit for her of herself to denounce whomever she prefers as the father of the offspring. Similarly this is not licit for the parents or guardian of the girl. Nevertheless, if civil laws (cf. Austrian Code, 163), as punishment of the delict, oblige the fornicator, as such denounced, to feed the offspring, the girl or parents do not seem to act unjustly in denouncing one of the lovers, in the case namely in which she herself does not know who precisely is the father of the offspring. Thus Noldin, II, n. 471; Delama, n. 391, note; Lehmkuhl, Burgerl. Gesetzb., 1717.

958. II. He who has violated a girl by force or fraud is held to make good all damages of honor and fortune that come upon both the girl and the parents. The reason is that he is the efficacious and unjust cause of these damages.

We said who by force, namely absolute; because if the violence was only moral, that is, if threats, or reverential fear, importunate prayers, or similar things drew the woman to consent, the seducer is held only to part of the damages (III, 642; H. Ap., X, 92; German Code, 825).

From these things it is inferred: 1. If the crime is manifest, the stuprator must indeed ask pardon from the parents, unless they do not care for a matter of this kind; but for the girl, he must increase the dowry, so that thus she may be able to marry equally well as if she had not been violated. Yet he is not held to marry her, since he did not promise this, unless perhaps the damage cannot be repaired otherwise, or unless by the sentence of a judge he is compelled to marriage (III, 641, 646).

2. If offspring has been conceived, he alone is held to sustain the expenses of nourishment and education, or to refund them to the mother; in Germany, § 1708, up to the completed 16th year, and further if this is necessary because of certain defects of the offspring. And this obligation indeed urges by force of natural Law; therefore even in the case in which the law would not favor the mother or the offspring and would deny every civil action. Cf. Gousset, on French Code, a. 340; Spanish Code, 464.

3. If the crime is occult, and the girl marries equally, the stuprator is held to nothing. For he owes nothing for the violation of honesty, which is not commensurable with money; nothing for damage, because there is none; nothing for the injury of the parents, because they are ignorant of the crime. Nevertheless, if the woman is afterward badly treated by her husband because of the known defloration, he is held to compensate the damage to her (III, 642; Lugo, disp. 12, s. 1).

959. III. He who, under a promise of marriage, whether true or fictitious, has violated a girl, is held to accept her for himself as wife. The reason is: a) because such damage cannot be repaired adequately in any other way; b) because in unnamed contracts, do ut des, facio ut facias, as soon as the other party has fulfilled his onerous part, the other also is held, and indeed from justice, to fulfill his own, provided, as in the case, he can do it without sin. Nor does it stand in the way that he promised fictitiously, because he is held, precisely in order to remove the injury, to furnish true consent, when this is necessary so that frauds, which would impede human commerce with common damage, may be removed from contracts (III, 642, q. 1; Vind. Alph., P. III, q. 16). Thus the common and to-be-held opinion, which in practice the S. C. of the Council has confirmed several times (A. S. S., I, 341; III, p. 304).

Note. The Decrees of April 19, 1908, concerning betrothals innovated nothing as regards the present matter. Truly only those pacts are betrothal pacts which are made in writing; but the obligation of entering marriage can arise not only from betrothals, but also from an onerous unnamed contract (cf. n. 1036). See Lehmkuhl, I, 1250; II, 842.

Exceptions. 1. Only the obligation of entering marriage ceases, the obligation of restitution remaining: a) If the girl yields her right, even if the parents dissent; because the right to marriage properly belongs to her. - b) If the law of avoiding scandal or the dishonor of the family stands in the way. c) If a very bad outcome is feared, say, if the girl is known to be too frivolous, or if she is non-Catholic and the perversion of offspring is feared, etc. d) If canonical law stands in the way, for example because of consanguinity, or a vow, for example of chastity, etc., and dispensation is not usually granted, or only with great expenses or inconveniences, which were by no means foreseen. Otherwise, more probably, in the contrary case; because he who is held to the end is held to the means, in our case, to the petition of dispensation. - e) If civil law stands in the way, for example because of the dissent of the man's parents, and marriage becomes morally impossible. - f) If the woman has already been dishonestly corrupted, that is, outside marriage; because to enter marriage with such a woman, at least in many regions, is valued much more highly than that which the stuprator received from her, and otherwise the damage inflicted on her can be repaired sufficiently in another way. g) If the seducer is far more noble or richer, although the girl could not have noticed the deception; because the one seduced, in these circumstances, cannot reasonably intend the reparation of the injury through marriage, and the seducer by joining her to himself in marriage would render more than equal to the injury inflicted (cf. St. Alphonsus, III, 643, dub. 2, 646-650). Yet according to some, disproportion in riches does not free from the obligation of entering marriage.

2. The very obligation of repairing damages also ceases: a) If the seducer is prepared to stand by the promise, and the woman without sufficient reason refuses. Otherwise, if she refuses justly, for example because the man pretended to be of better or equal condition, when he is of lower. b) If the woman from words or other circumstances could easily have noticed the deception, say if she knew the seducer to be much superior to herself in nobility or fortune; for then it can deservedly be presumed that she wished or feigned the deception. - c) If the woman deceived the seducer by pretending herself a virgin; for deception compensates deception. - d) If she is defamed for this reason, that she herself manifested the stuprum perpetrated secretly. e) If the promise of marriage was not the motive cause of the girl's consent; because, in such a case, it must be interpreted like any other gratuitous promise (cf. n. 1062). Let St. Alph., III, 645-648; Lugo, disp. 12, S. 2; Lessius, l. 2, c. 10, dub. 3 be read.

960. It is asked. What if the man has only touches with a virgin?

Resp. He is not held to marriage, because touches alone are not of so great an injury that they induce the obligation of entering a fictitiously promised marriage, nor of so great weight that they do not suggest to the woman the suspicion of fiction; provided, and this is excepted, the woman was not noble or very honorable; or the man had requested only touches with a promise of marriage, and the girl remained marked with infamy because of those touches now made known, or because of notorious familiarity (III, 645; H. Ap., X, 95).

Note. Modern laws do not oblige the deceiver to marriage, but generally oblige him to the reparation of damage inflicted by the unfulfilled promise (Austrian Code, 46; Spanish, 464; German, 825, 847). But if someone has satisfied these laws in good faith, he does not seem to be disquieted. See other things in n. 963, q. 2 and 3.

Here it is a question only of adultery from which offspring has been born and damage has followed; for personal injury alone inflicted on a spouse cannot be repaired by money (cf. n. 928).

961. PRINCIPLES. I. If each adulterer freely consented in the crime, each is held, in solidum, to the reparation of the damage. The reason is that each was the efficacious and formally unjust cause of the whole damage (III, 655, 659; Lugo, disp. 13, s. 1; Lessius, l. c., dub. 5).

Hence: 1. Both are held to restore all expenses which the husband made for feeding and educating the spurious offspring. - 2. If the spurious child has received an inheritance with legitimate children, or with other legitimate heirs, they are held to compensate these in proportion. - 3. An adulteress who does not have separated goods must repair the damage in the better way she can, for example by administering the family property more diligently, by subtracting from herself superfluities in clothing, in food, etc. But each is held to repair damages insofar as he or she can without detriment to a higher good and without the bringing in of a greater evil (cf. n. 1018). See St. Alph., II, 652.

"Some authors say that if the adulterer had not induced the mother to suppose the offspring among the legitimate, but in this had behaved himself negatively, then he would not be held to maintenance, or at least not to the inheritance. But we say, with the common opinion, that he is obligated to both, because he is always the proximate moral cause of the aforesaid damages, by casting the adulteress into the moral necessity of supposing the offspring. But it must be said otherwise if the adulteress, without her infamy and danger of supposition, can keep and feed the offspring outside the house" (III, 659; H. Ap., X, 101).

962. II. If one adulterer by force, fear, or fraud extorted the consent of the other, he alone must repair the whole damage. The reason is that he is the efficacious and unjust cause of the whole damage. Yet if he fails, the other is held, unless he or she suffered absolute force or invincible deception (cf. n. 995, 3).

963. Questions. QUAER. 1. Whether an adulteress who can repair damages only by manifestation of the crime is held to manifest it?

Resp. Negatively, regularly speaking. The reason is: 1. because in this way, for the most part, she cannot repair damages; for no one is held to believe one witness, although most approved, and therefore neither is a spurious son held to believe the mother asserting that he is illegitimate, unless those indications accede which in the external forum would prove the matter evidently, for example impotence or absence of the husband, etc.; 2. "because rarely can it happen that from such manifestation she would not undergo enormous damages," say grave infamy, savagery, discord, etc. Indeed, generally it is of greater interest for the husband himself and the legitimate children that the matter remain hidden.

Except: a) if she is already of ruined reputation and does not fear the grave indignation of the husband; b) if otherwise public damage is feared which can be impeded, for example if the spurious child is of ruined morals and ought to succeed in the principate; c) if there is probable hope that the spurious child will believe her and renounce the inheritance. The reason is that she is excused when her own damage certainly and notably outweighs another's damage; but by no means when it is equal or only a little exceeding (III, 653 seqq.).

QUAER. 2. To what is an adulterer held who doubts whether the offspring is his or another's?

Resp. 1. If he doubts whether it is his or the husband's, he is held to nothing. For in this case the damage is not established; and the offspring is presumed to be the husband's unless the contrary is proved (III, 657).

2. If the doubt is between two adulterers, whose the offspring is, it is absolutely more probable that neither is held to restitution, and the same holds for fornicators. The reason is that no one is held to repair damage unless it is morally established that he was the cause of the damage.

Except: a) If the second adulterer noticed, which is rare, that by his deed he would be the cause why it cannot be known whose the offspring is. In this case, he alone would be held to the damage inflicted from that uncertainty. b) If by common counsel they perpetrated adultery; for then each would be held in proportion, and, if the other fails, to the whole (cf. n. 908, III, and 984, Quaer., and n. 992, 2).

Note. As regards adulterers who send offspring to the hospital, see the things said above in n. 700, 2, with note.

964. NOTIONS. A tax or duty, taken generically, is everything which by legitimate ruling power is imposed to be paid by citizens for sustaining the common burdens of the republic.

Taxes today generally are of two kinds. Some are called direct, which immediately and by name affect the person, or his goods, according to the estimation of faculties. Of this sort are real taxes, for example on fields and houses, and personal taxes, for example for a family and its members or for the exercise of commerce.

Others are indirect, and fall immediately indeed on things or merchandise, but mediately on persons. To this class especially come duties concerning merchandise to be made or transported, and tolls concerning things to be sold or bought; likewise those which must be paid for the right of succession, for the registration of contracts, for the sealing of letters, for salt, tobacco, etc. Cf. Waffelaert, de Just., II, n. 414; Vermeersch, o. c., n. 97; Willems, Philos., III, p. 505; H. Pesch, die Soz. Frage, I, p. 144; Staatslexicon, v. Steuern.

Note. Taxes are not all those things which are imposed by the Office of posts or railways, etc. In all these things the State performs work as though a private man and enters a true contract with private persons. Yet very many statutes which are laid down by administrators are merely penal, for example that money not be joined to letters, that a ticket not be handed to others, etc. Cf. Genicot, I, p. 574; Ami du Cl., 1906, pp. 265, 367, 467; 1911, p. 369. The author of the article in the periodical Linz. Quart. Schr., 1901, p. 388, seems to embrace the stricter opinion.

965. PRINCIPLES. I. All those in whose hands is the supreme administration of affairs can impose just taxes. The reason: this is necessary for sustaining common burdens.

We said 1. Just taxes: for since it is a question of an imposition burdensome to peoples, the burden must be divided equally.

But taxes are just if there are present: a) a grave cause, that is, the necessity of the common good, to which the worthy sustenance of the prince deservedly pertains, but not the mere utility or abundance of the prince; b) proportion of the tax, both with necessity, lest the people be burdened more than is equitable, and with the riches of individuals, so that those who have more ought also to pay more. Taxes are also just if there is lacking lesion of privileges conceded by the law of a Superior, for example of real immunity as regards clerics (cf. n. 201).

2. Can impose, and indeed in conscience, since supreme authority can direct subjects to their proper end. Yet from this it does not follow that all just taxes oblige in conscience, as we shall see immediately.

3. All those in whose hands, etc. For the imposition of taxes, since it tends to the ultimate and universal good of society, can arise only from supreme authority.

Hence these can impose them: a) emperors, republics, princes, together with assemblies if they exist; b) councils and Supreme Pontiffs, by reason of spiritual governance (cf. n. 873); c) cities, communities, with the prince approving.

966. II. Officials and ministers are obligated from commutative justice to the just exaction of taxes. The reason: for whatever is held concerning the obligation of paying taxes, they are obligated to exact by office, by stipend. Therefore from commutative justice.

Yet from the presumed will of the Superior, collectors can act more benignly with the poor, with those who diligently pay, or who carry goods for their own use (III, 616).

967. III. Those defrauding direct taxes regularly sin against legal justice alone; those defrauding indirect taxes violate a merely penal law. The reason for the first is that subjects in general are held in conscience to observe just laws which directly conduce to the common good; which belongs to legal justice. To this pertain the words of the Apostle (Rom. 13:5): Render ... tax to whom tax is due. The reason for the second is that, as regards indirect taxes, the ordinary indications of merely penal laws are present: a) a very great fine; b) not so intimate a connection with the common good; c) disproportion with the state of fortune of each one, since at times certain indirect taxes burden the poor more than is equitable; d) the practice of the timorous; e) finally extrinsic probability. Cf. n. 183, 2.

We said 1. Those defrauding direct taxes, etc. Therefore we hold a middle way between the opinion which proclaims that all taxes oblige in conscience, and the opinion which says that all are merely penal.

The first opinion has as patrons Sanchez, Lacroix, Lessius, Lugo, etc.; among moderns Schindler and a few others. The second is held by Genicot, Bucceroni, Berardi, Gury-Ferreres. - St. Alphonsus (III, 616; H. Ap., X, 81) rather inclines to the opinion of Lugo and Lessius, and advises this to peoples (see ed. G., II, p. 96). Aertnys, l. III, 377; Lehmkuhl, I, 1173; Noldin, II, 314; Hamm, Steuermoral, p. 310; Porpora, Theol. mor., p. 383 defend our opinion.

Yet let it be noted: a) Although from what has been said it follows that there is an obligation of duly declaring the state of one's goods, so that the quantity of direct taxes to be paid by each can be determined, from this it does not follow that all things must be indicated to the line. Generally, as is established from custom concerning the value of buildings to be determined, to depress 1/4 or 1/3 below the value, even with an oath acceding, is not illicit (Lehmkuhl, l. c.).

b) In doubt, whether negative or positive, concerning the justice of a tax, there is no obligation of paying. Nor does the axiom stand in the way here: A commanding Superior must be obeyed in doubt; because the subject here must furnish a thing evidently burdensome and damaging, and these inconveniences, together with doubt concerning the power of commanding, outweigh the possession of the Superior (III, 617, ed. G., II, p. 100). But collectors, in doubt concerning the justice of the tax, are held to exact it (ib.).

2. Regularly. For it can happen that from the mind of the legislator or from usual interpretation, even as regards direct taxes, the matter is judged as merely penal.

In England, with Crolly testifying (de Rest., n. 1032), tax laws universally are thought to oblige in the manner of penal laws. But in France and in Germany our conclusion is rather commonly admitted.

3. They sin, indeed not always gravely. But grave matter must be measured not from the quantity alone of the taxes defrauded, but also from the hope which the State has of recovering its right, and from the gravity of the harm which perhaps comes upon others from non-payment.

From this Schindler (II, p. 803) concludes that for gravity of matter in this case a greater sum is required than if it were a question of damage inflicted on the State in goods already possessed.

4. Against legal justice alone, so that from non-payment no obligation of restitution can be constructed (Linz. Quart. Schr., 1909, p. 484 seqq.). Cf. Pastor bonus, 1908-1909, p. 67.

Therefore we depart altogether from the opinion of the distinguished Marres, Waffelaert, Koch, Linsemann, and others, who try to demonstrate that taxes oblige from strict justice (see their argument in Genicot, I, n. 574).

Note. In one case there would be an obligation of paying taxes from commutative justice, if namely a certain and determined quota had been imposed by authority on some group, for example of merchants or notable persons (Kontingentierte Steuern). For then, when one does not pay, others of the same category would certainly be held to pay more (Lehmkuhl, I, 1170; Schindler, l. c.).

968. Consequences. I. They sin and are held to restitution:

1. Legislators or inferior ministers who, in the distribution of burdens, for example in municipalities, knowingly are the cause why someone pays more than is due. For each one has a strict right not to bear an unequal burden.

2. Collectors. They are held to restore: a) to private persons, if they exact anything from them beyond the legal tax; b) to the treasury, if they have not employed the diligence due and suitable for exacting the tax; if, without a just cause, they have acted leniently or dissemblingly toward someone, so that he could defraud the whole duty or a respectively notable part of it; if by not imposing fines they knowingly add boldness to those defrauding, and the treasury thence undergoes damages; if they do not exact fines after the sentence, otherwise probably in the case in which no sentence has intervened; or if in any other way whatever they have connived with defrauders. For they must fulfill their office from justice, even if the law were merely penal (IV, 237).

3. Defrauders. These certainly are held to restore to the treasury, or according to others to pious causes: a) if from an express or tacit pact with collectors they have avoided payment of a just tax; b) if, by force employed toward them, they have refused to pay either a tax or a justly imposed fine; c) if by reason of a tax or fines which they justly paid, they have secretly stolen something. For in these cases justice is openly injured.

969. II. They are excused, at least from injustice, and on account of custom or interpretation sufficiently received: 1. All those from whom taxes were not sought. Wherefore, if there is no one present who exacts the duty, a merchant can without fault omit payment of the tax which is accustomed to be sought by reason of passage through a gate or over a bridge. Indeed Sanchez with others thinks it probable that not even those sin, at least against justice, who purposely hide themselves or their merchandise in order to avoid the request of the tax. The reason is "because taxes of this kind have been so received that they are not owed unless sought." 2. Those who, when questioned by collectors what merchandise they are carrying, what merchandise or at what price they have sold it, what is the value of goods accepted by right of succession, etc., weaken the truth. For since the collector could proceed with the greatest rigor and verify the matter, if he does not furnish this, he indicates sufficiently that he wishes to act humanely, and he is presumed not to conduct himself thus without reasonable cause. And this has force especially when the tax is very burdensome or doubtfully just.

3. Those who are so poor that, if they paid taxes, they could not feed themselves and their own, whether because they carry off moderate profit from their commerce, or are burdened by numerous offspring, or because they are oppressed by another's money, etc. "For natural Right demands this, that one first feed himself and his own, and then pay taxes" (III, 616, 617). Cf. Sanchez, Consil., l. 2, c. 4, dub. 10, n. 11, 12.

970. PRACTICAL RULES. Peoples indeed are to be admonished that they pay taxes. But after the fact, they are not to be compelled to restitution "if they probably persuade themselves that in so great a multitude of duties they have paid something unjust, or have contributed competently to public necessities." Thus St. Alphonsus (l. c.) with Lugo and Molina, with whom Billuart, Gousset, and others commonly agree. Nor therefore is it expedient that a confessor inquire from penitents silent about a tax whether they are guilty of some defrauding, lest perhaps, if they are in good faith, he uselessly cast bad faith into them.

N. B. Concerning the mode of restoring on account of damages inflicted on the republic, see n. 1015, q. 3.

971. PRINCIPLES. I. Soldiers in war are held concerning all damages which they have inflicted through private action. But in a war which they know to be unjust, each is held, in proportion to his own influence, concerning damages inflicted by the army itself. Thus of itself; but ordinarily they are excused, whether because of ignorance, or because of fear of a graver evil if they refused to obey, or finally because of physical or moral inability of restoring (cf. n. 1017).

II. Princes and commanders are held primarily, and in solidum, concerning the whole damage inflicted by the army. The reason is that they themselves were the true mandators, or at least because they did not impede the damaging action, to which they were held by office (cf. nn. 978, 988). See St. Alphonsus, III, 407, 580; Gousset, I, n. 1003.

972. III. Only hired soldiers are held from strict justice to military service; but it is not certainly established that young men called to military service are obligated in conscience to undertake the duty. The first is clear, because there is a contract. - As regards the second, authors disagree concerning the justice and the nature of the law which is named from conscription.

Some say that it is unjust, at least under this head, that it is opposed to distributive justice, since only families which have sons suitable for military service are compelled to undergo the hard yoke. - Others indeed deny that it is unjust, at least among nations for which soldiers hired by stipend cannot suffice, but affirm that it must be numbered among penal laws, because delinquents are most gravely punished. - Finally, others, and their opinion seems to be the more common, teach that the law of conscription indeed obliges in conscience, but only from legal justice. Cf. Pruner, de Jure, P. II, § 72, II; Schindler, II, p. 799.

From these things you will gather: 1. Young men who cleverly avoid military service, for example by lies, exaggerated words, previous mutilation, etc., probably are not held to restore: a) neither to the government, in the case in which others do not supply their places, because it is certainly more probable that the law does not oblige from strict justice; b) nor to others who somewhere supply their places, because it is not established that the aforesaid arts are at once unjust and of themselves efficacious for inflicting damage on them; otherwise he would be held to restore who, by not living rightly, has so weakened his powers that he cannot serve as a soldier. The truly efficacious cause of that damage is the will of the legislator who, when one fails, calls another to arms (cf. n. 949, Condition 2).

2. Young men who by bribes corrupt physicians or magistrates so that they may be declared unfit by them: a) certainly are held to no restitution if all young men fit for military service are assumed, since damage is inflicted on no one; b) but more probably they must restore in the case in which, when one is exempted, another must succeed him; for they are cooperators of formal injustice, for they efficaciously excite public officials to inflict unjust damage on another. For he who by law is not compelled to serve as a soldier has a strict right to preserve liberty. Nor may you say that money is licitly given to redeem an unjust vexation; for here the injustice of the law is not established, and therefore neither the injustice of the vexation, unless the matter is with clerics, or others, who by right are immune from that law. Thus Gousset, I, n. 1002; cf. Bonal, Tr. de Just. et Jure, n. 337; Haine, t. II, q. 196; Vermeersch, de Just., n. 129; cf. also Nouv. Rev. Theol., vol. 37, p. 381. Yet others opine that to corrupt officials or physicians is not an induction to an action to which they themselves, namely officials or physicians, would be held from commutative justice. See Lehmkuhl, I, n. 1177. At least the obligation from the title of strict justice is not established.

In practice one must act cautiously, both because most do not advert to the damage and are not guilty of formal injustice, and because very few would obey admonitions.

973. IV. Soldiers who desert the army sin, and are held to return. This is required by obedience or legal justice, and somewhere by the religion of an oath by which they obligated themselves to soldiering for the time prescribed by law; or even by commutative justice, if by a free pact they hired themselves out.

Yet they are excused: 1. if the war is certainly unjust; for then they are held to flee away, if they can (cf. n. 750, Hence, 2); 2. if they would encounter grave danger to salvation, for example if the means of confessing were not available in the article of death, etc.; 3. if, returning, they would be punished with death or other most grave penalties.

It is asked. To what is he held who had hired himself out in place of another, and then deserted military service?

Resp. He is held of himself: 1. to restore the price accepted, because he did not stand by the pact; 2. to repair the foreseen damage, if he for whom he had hired himself out is compelled to undergo military service. But if no damage and no danger of this kind is incurred, restitution does not seem to be urged, because the hirer intended nothing by the pact except his own liberation; if therefore the liberation remains, the hired man does not commit injustice, nor properly break the pact.

He who was negligent or imprudent in fulfilling his office can be held to restitution: 1. from unjust acceptance; 2. from damage inflicted on goods either of fortune or of soul.

974. PRINCIPLES. I. From unjust acceptance all stipendiaries who have not fulfilled the obligations of their duty are held to restitution. Concerning this matter the Roman Catechism speaks thus: "Those also are to be placed in the number of thieves who, when they have been hired for some private or public office, furnishing no or little labor, neglect the duty, and enjoy only the wage and price" (on the 7th Precept).

Hence: 1. A Bishop, canon, pastor, any priest provided with a benefice, or set over the care of souls or some office, if they are lacking to the law of residence, or do not satisfy the obligations imposed by the canons, illicitly and unjustly accept the honoraria assigned to themselves. But if they fulfill part of their duty, they can indeed retain for themselves the part of the honorarium which corresponds to the labor performed, but they are held to confer the rest for the good of the Church (cf. n. 2264, Quaeres, 2248, 2268). - 2. Judges, magistrates, professors, teachers, physicians, etc., who because of negligence, or because of long or frequent absence, neglect to discharge their office either toward the republic or community or toward a private person, are likewise held to restore that part of the stipend which corresponds to their negligence or absence.

744. • An unjust damager is called one who injures another's right and harms the neighbor in his goods, without thereby of itself becoming richer.

A twofold fault is distinguished by which damage can be inflicted, namely theological fault and juridical fault. - Theological fault is that which includes an offense of God, that is, formal sin, whether mortal or venial. - But juridical fault is the damaging omission of diligence prescribed by law, whether this is a formal sin or not.¹

But juridical fault, from the common interpretation of Roman Law, is either gross, or slight, or very slight. Gross fault is the omission of diligence which men commonly are accustomed to employ in similar affairs, as if someone, leaving his workshop for a longer time, leaves the door and chests open, and anyone can easily carry away money or merchandise. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to employ; as if the same man, going away a little, neglects to carry with him the keys of the chest, which it is not at all likely that another, in his absence, will seize for stealing. Very slight fault is the omission of diligence which is usually employed only by the most prudent and most diligent; as if the guard of a house, who when about to go to bed bolts all the doors, neglects to search the individual places, lest perhaps a thief lie hidden.

745. Principles. - I. An unjust damager is bound to restore 1° the whole equivalent of the thing damaged; thus, for example, if someone culpably burns another's house, he must repay its entire price to the owner; 2° the whole equivalent of the damages foreseen besides the damaging of the thing, if any have come from it. Hence, for example, if a craftsman is compelled to omit his accustomed work for some time because you destroyed the instrument necessary to him, and you foresaw this, you are bound to compensate him not only concerning the value of the instrument, but also concerning the profit ceasing.

The reason for this principle is clear from what was said n. 587 and 713. For the injured owner must be made wholly harmless. But for this it is not enough if the damager pays to him the intrinsic price for the thing, when the other has suffered other detriments from the privation of his thing, since he would not recover everything which he lost from the unjust damaging. Nor does it stand in the way that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility perceived concerning another's thing, but from damage inflicted.

746. • II. That a damaging action induce an obligation of restitution, by natural right a threefold condition is required, namely that it be 1° unjust, 2° the efficacious cause of damage and indeed certainly efficacious, 3° theologically culpable.

1° Unjust. For the obligation of restitution necessarily supposes the strict right of another violated. But strict right cannot be violated except through an unjust action, or one opposed to commutative justice, according to what was said above n. 587, etc.

2° The efficacious cause of damage, namely 1° that the action per se influence the damage, so that this is judged truly to follow from it; 2° that it can be imputed to such an agent. The reason for each is clear. For an action can be imputed to no one unless it is his own; nor can the detriment of an action be ascribed to anyone unless his action was the true and efficacious cause of the detriment, physically or morally.

But this happens when an action is placed which from its own nature or from the circumstances has a morally certain connection with damage. Hence 1° a merely occasional cause of damage does not suffice for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on the occasion of theft perpetrated by you, another was accused and condemned, you are held by no obligation of repairing his damage. - Nor 2° does an accidental cause suffice for restitution; for this is one which, considered in itself or with attention to the circumstances, does not have a probable connection with the event, and so is not to be called an efficacious cause. Hence, if you hand a sword to Titius without probable foresight of his abuse of it, you are not guilty of injustice if he perpetrates murder with that sword.

And indeed certainly efficacious; for the obligation of restitution cannot be present unless the cause of it is certainly established.

3° Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless in the same forum an injury has been committed, nor can conscience be bound by an obligation of repairing an injury which it did not itself inflict; otherwise even those sleeping and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. Moreover there is no injury in the internal forum where there is no theological fault; for to injury there is required a will of harming, at least indirect, or some foresight, at least confused, of unjust damage. Therefore, etc.¹

747. • III. Yet even from merely juridical fault there arises an obligation of legal justice or obedience of repairing damage; but only after sentence, and that a just one. 1. The obligation arises, since the law establishing it, as made for the common good (n. 129. R. 2°) and favoring all equally in advance, is just; wherefore the injured party safely appeals to it, even if he certainly knows that the injurer is guilty of no theological fault. 2. Legal justice etc., because that obligation is imposed by right of jurisdiction. 3. Only after sentence, since that obligation has the species of penalty, and it would be hard to oblige the guilty man to take it upon himself spontaneously without theological fault. 4. And a just one (see n. 129. R. 1°).² Mar.³ (K) p. 482.

748. Questions. - Query 1° Are you bound without theological fault concerning damage inflicted by you upon another's thing detained from contract, for example of deposit or loan for use?

Resp. There is a twofold probable opinion.

The Opinion which to S. Alph.⁴ is very probable affirms absolutely that theological fault is required. The reason is that merely juridical fault does not suffice for inducing an obligation in conscience, as is established from what was said above in principle II, unless a special agreement has intervened. But the existence of an agreement of this kind is in no way established; indeed, it is not presumed that the contracting party wished in conscience to take upon himself under grave sin so great an obligation with juridical fault alone.

749. • Query 2° Is someone without theological fault bound concerning damage inflicted in fulfilling an office, as if a physician gave a harmful remedy, a judge an unjust sentence, an advocate false counsel, a confessor a resolution damaging to a penitent or to another?

Resp. Probably negatively, as in the preceding question. The reason is 1° because the obligation of restoring on account of merely juridical fault in an office, or in a quasi-contract, cannot be proved either from natural right or from the convention of the parties; 2° because such an obligation would be harmful to the public good; for from this it would happen that upright and God-fearing men would be kept from undertaking the affairs of others, and also from public offices. S. Alph.,¹ Billuart,² Lacroix.³

Query 3° Is he bound to restitution who inculpably indeed placed a cause of damage, but afterward did not impede it, although he could have impeded it?

Resp. Affirmatively. The reason is that each one is bound from justice to impede his own action from harming the neighbor; therefore he is also bound to impede the evil following from his action from persevering, but not with equal damage to himself.⁴

Hence 1° one who inculpably set fire to another's house, when he notices the danger of the fire, is bound from justice to impede it, if he can. 2° Likewise a pharmacist who sold poison by mistake for medicine is bound from justice to warn the buyer. 3° Likewise one who by mistake said something grave against another's reputation is bound afterward, when the error is known, to correct it; and if he does not do so, he sins gravely and is obligated to reparation of all damages which come from this.

750. • Query 4° Must damage following from a cause culpably indeed placed, but already retracted when the damage is inflicted, be repaired?

Resp. Affirmatively, unless with the perverse will the influence of the cause also has been taken away. Thus, for example, if someone voluntarily gave poison to another, and afterward cannot impede its effect, however much, repenting of the deed, he may wish it, he will be bound to repair the damages coming from the homicide. The reason is that he who placed the cause of the damage always goes on efficaciously influencing it. - Thus commonly.

Query 5° Must damage indeed inflicted BY ACCIDENT, but while attending to an illicit work, be repaired?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even in confused manner. Nor does it matter that the action was illicit; for this pertains nothing to the notion of justice. Thus a cleric who, while attending to hunting against the prohibition of the Church, kills a man instead of a wild beast, is no more guilty of injustice than a layman who would have done this. Indeed damage inflicted by accident need not even be repaired, even if it happened on the occasion of an unjust action, because it has no connection with that action. Hence he is not bound to restitution who killed Titius, whom he did not at all see nor know to be present, while he was aiming a gun at Caius. - Thus most commonly. - Lugo,¹ S. Alph.²

751. • Query 6° Are you bound to repair damage which by mistake you inflicted upon someone while you intended to harm another, for example if you burn the house of Caius, which you think is the house of Titius your enemy?

Resp. They deny it with S. Alph.,³ Lugo,⁴ Lacroix.⁵ The reason is that the action was not voluntary toward the damaged person.

Query 7° Is one who gravely damages, yet with light theological fault, bound to restore under whatever fault, even very slight?

Resp. More probably negatively, because proportion is lacking both between grave obligation and light fault, and between light obligation and a grave thing. - Otherwise, if someone, prudently fearing damage from his action, voluntarily admits juridical fault to which according to the nature of the thing he was bound; for this man is guilty of grave theological fault.⁶

752. • Query 8° Is one who inflicted grave damage through several venial faults deliberately committed bound under grave sin to repair that whole damage?

Resp. 1° Affirmatively, if the damage inflicted is upon the same person, although the damager did not sin gravely. The reason is that here he is bound to repair the whole damage voluntarily and freely committed. But the whole damage was freely inflicted, and besides it is grave in the hypothesis; therefore that whole must be repaired under grave sin. - Lugo,¹ etc.

Resp. 2° More probably negatively, however, if small damages were inflicted upon diverse persons. The reason is that on the one hand no one suffers grave damage, and on the other hand the damager does not become rich from another's thing. Hence the present case differs from the similar question related above n. 717. q. 4°, because a thief becomes rich from small thefts, but not a damager.

Query 9° Is one who from invincible error thinks that the damage inflicted by him is much less than it really is bound to restore that whole damage if afterward he recognizes the true price; for example, if someone throws into the sea another's gem worth 100, while he believes it to be worth only 10?

Resp. Probably he is bound to restore only according to the proportion of the damage known; because the damage which is invincibly unknown is not judged willed. - S. Alph.,² Carriere,³ against others.

Yet an obligation of repairing the whole damage will be given if, when because of suspicion of a greater price, at least arising in confused manner, the whole damage becomes voluntary.

753. • Query 10° Is an owner bound to repair damage inflicted upon the neighbor by his animals?

Resp. 1° Affirmatively, if from theological fault he neglected to watch over the animals. For each one is bound by natural right diligently to guard his animals lest they inflict damage upon others, just as he ought to guard against detriment coming to the neighbor from his own actions.

Resp. 2° But, theological fault being set aside, he is not bound before the sentence of the judge, as is clear from principle II. n. 746; but after sentence has been pronounced, as is established from principle III. n. 747. - But by the laws according to which sentence is commonly given among us, animals inflicting damage are held until satisfaction is made to the injured party, and by public authority they are sold if the owner neglects to redeem them. But if the owner of the estate often omitted to enclose it lawfully, he can recover nothing; but he himself will be bound to repair the damage if the animal wounded or killed.⁴ Cf. n. 686.

Query 11° Is that man bound to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The more probable opinion denies it, because one who gives bad example is not the cause of the damage, but a mere occasion. For an evil action of itself does not tend to this, that it excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflicting the damage. S. Alph.,¹ Salmant., Laymann, Sanchez, Lugo, etc.

754. • Query 12° Is he bound to restitution who doubts whether he himself was the cause of damage?

Resp. There can be doubt: 1. whether a cause of damage was given, for example whether you calumniated someone; whether you were the cause of damage or only the occasion; 2. whether damage truly came to someone, suppose from your detraction; 3. whether damage which actually followed arose from that cause, for example from the calumny, or from elsewhere; 4. whether, if many were the cause of damage in the same way, for example by adultery, the effect (offspring certainly adulterine) is to be attributed to this or that adulterer. In all these doubts the obligation of restitution is to be denied; and indeed in the 1st and 2nd according to the common opinion; in the 3rd according to a sufficiently probable opinion; and in the 4th according to the more probable.² The reason is that in each hypothesis it is a question of a doubtful obligation, by reason either of the cause or of the effect.

Except, as to the 4th doubt, if the second adulterer, knowing adultery to have been committed by another, had intercourse with the adulteress, noticing that he by his second adultery becomes the cause of uncertainty whether support can be exacted from the first adulterer. But the reason indeed is not valid for the earlier adulterer, who would think nothing concerning future adulteries. And for the second to be bound, it is further required that he notice that damage which can come from his adultery; because nevertheless this advertence will be very rare, the obligation of this adulterer also will be very rare. - 2° If several adulterers from common counsel perpetrated adultery.²

755. • Query 13° Are you bound to repair damage coming to someone on the occasion of your unjust action, for example if you stole, and the theft is imputed to him?

Resp. 1° Certainly negatively, if you did not foresee that damage. This is clear from what was said above in principle II. n. 746.

Resp. 2° Also more probably negatively, although you foresaw this damage. The reason is that your action, placed with the foresight alone of the damage, must be held not as the per se cause of it, but only as the cause by accident. It is established also from the second principle, ibid. Except if at any time the circumstances were such that they morally proximately influence the grave suspicion and condemnation of another. - S. Alph.,¹ Lacroix,² etc., against others.

Resp. 3° Indeed probably it must also be denied, although you acted deliberately so that your action would be imputed to him, because this action is always only the cause of the damage by accident and not per se; for from its nature it did not efficaciously influence that damage. For a depraved intention does not effect that the work is unjust which of itself is not unjust with respect to a third party. Yet it must be excepted if someone used those means which would furnish a very grave suspicion for accusing another, for example if he dressed himself in his clothes to perpetrate homicide, threw away these stained with blood, etc. - S. Alph.,³ Lessius, Vogler, against others.

756. • Query 14° Is an unjust distributor of offices bound to restitution?

Resp. 1° More probably he is bound to nothing toward the worthy person passed over, the case of competition being set aside, because he violated the strict right of no one. - S. Alph.,⁴ and others commonly.

Resp. 2° By reason of the election of an unworthy person he is certainly bound toward society concerning all damages thence coming. The reason is that there is judged to be present an agreement of strict justice between society and the elector, by which the latter is bound not to elect unworthy ministers. - Thus commonly.⁵

But more probably he is bound to nothing by reason of the election of one less worthy, although he can sin gravely. The reason is that society is not judged to oblige electors by the title of commutative justice to elect the worthier.⁶

757. • Query 15° Is he bound to restitution who impeded another from the obtaining of some good or benefit?

Resp. 1° Affirmatively, if the neighbor has a strict right to obtaining the thing, as if you impede a creditor from obtaining payment.

Resp. 2° If the neighbor does not have a strict right to obtaining the thing, a distinction must be made. 1° It must be affirmed if this is impeded by unjust means, for example force, fraud, calumny, fear, etc. Namely, then he is obligated to compensation of damage according to the judgment of a prudent man, according to the certitude or probability which the other had of obtaining that good, provided nevertheless he is worthy and could have obtained that good without injustice; for if he were unworthy, the one impeding would not be bound except to restitution of reputation, if perhaps he injured this unjustly.¹ 2° It must be denied, however, if it is impeded by means just in themselves, for example persuasion, prayers, etc. The reason is that then no right of the other is violated, neither in itself nor in the means. - Thus commonly.²

Query 16° Are you bound to restitution if from an evil intention, for example from hatred, yet with means of themselves unjust set aside, you turn another away from the obtaining of a good to which he does not have a strict right?

Resp. More probably negatively. The reason is that no injury is inflicted upon the neighbor. For evil intention does not suffice for injury, but there is required an external action which is the true and efficacious cause of unjust damage. - S. Alph.³ and others more commonly against others.

Query 17° Must someone in danger prefer another's thing to his own, so that he is bound concerning damages if he does not prefer it?

Resp. The contract by force of which he has another's thing either yields for his utility only, or for the utility of the other only, or for the utility of both. If the first, as if he received the thing by loan for use, he ought to prefer that thing to his own, or, if his own is much more precious, to make the owner harmless concerning the price of his thing, because for his benefit alone the thing of another was brought into ruin. - If the second, as for example if I received the thing by deposit, a distinction must be made. If this is much more precious, I ought to conserve it; nevertheless I can exact compensation of the whole damage which I suffered by preserving it. If my thing is equally precious, I am not bound to prefer another's thing to mine, since I retain it for the utility of that man alone.⁴ If the third, as for example if as a broker (agent) I have been hired for a price to sell another's thing, there are those who think that, other things being equal, I can prefer my thing, since charity does not oblige me to prefer another's thing to mine in equal necessity; but others think that some compensation is owed to the other party, which seems more just to Varceno.⁵

758. Cases. - 1° Didacus at night puts away in a corner of the house a very precious crystal vase of Caius, by which no one was soon going to pass, intending to place it in a safe place very early in the morning. But Basilius, entering the house that same night without light, strikes against the vase and breaks it. What is the law? - Resp. Neither Didacus nor Basilius is bound to restitution, because on the part of each theological fault is lacking; for neither thought about damage or the danger of it. Indeed neither one would be bound if he had foreseen some very remote danger, because in morals attention is not paid to mere possibility.

2° Quirinus, intending to steal cloth, enters a workshop at night and lights a candle, employing diligence to avoid every danger of fire; but by an unexpected event, namely the leap of a cat, the candle is thrown into straw, and in a short time the whole workshop is burned, and the thief barely escapes unharmed by taking flight. What of Quirinus? - Resp. He is bound to nothing, because he in no way foresaw the danger. Indeed he is not bound concerning the cloth which he wished to steal, even if he had seized it, because even that damage is involuntary; nor is the seizure of the cloth the cause of the damage, nor did the carrying of the candle create a proximate danger of fire when sufficient caution had been employed. Yet if the thief had not only seized the cloth, but had consummated the theft by withdrawing it from the power and custody of the owner, when by accident, for example by the lit candle, the cloth was burned, he would be bound concerning it, as is said concerning any stolen thing which perishes by fortuitous event with the thief. - Thus Lugo,² Lacroix.³ Cf. n. 734. 1°.

3° Pomponius, impelled by a mind of revenge, while seen by no one, discharged a shot at a goat of Marri grazing peacefully in the estate of the owner; but instead of the goat, which was unharmed, he struck and killed a cow of Marinus lying behind a hedge, while he was wholly ignorant of it. To what is Pomponius to be obligated? - Resp. To nothing. For he is not bound to anything for the aforesaid goat, since it remained unharmed; nor for the cow, since he in no way foresaw its damage. But what if the cow belongs to the same owner? The difficulty increases, since the damager truly intends to inflict damage upon such a person; for although he does not destroy the thing specially intended, since in general he wishes to harm the enemy, the damaging action which he places seems formally injurious to the same owner. Nevertheless, standing in the rigor of the principles, he can still more probably be excused, if in no way, not even in confused manner, did he foresee this other damage. For it can be said that it happened merely by accident; nor does the depraved intention of harming the same man make the damage of a thing wholly unknown become voluntary. It is otherwise, however, if, wishing generally to harm the enemy as much as he could, he had known somewhat in confused manner various objects to be damaged. Recall what was said n. 746 and 755.

4° Sidonius, seeing Justin passing by and thinking that he is Titius, says to his companions: Look, that man is not the standard-bearer of the scrupulous! ... But he is a worthless man, a thief, fornicator, and drunkard. Query: What must Sidonius do when the error is detected? - Resp. He must retract the things said before the same companions, although involuntarily he said these things against Justin; and if he does not do so, he will be bound to repair all damages which follow from the defamation. Cf. n. 749. q. 3°.

5° Babinus, by repeated prayer and flatteries, yet with all deceit set aside, induces Roger, who is dying, to tear up the will already made in favor of Paul, so that he himself, or a friend or blood-relative, may be constituted heir. But Babinus is determined to do this, besides his own advantage or that of a friend, from inveterate hatred which he cherishes against Paul. Is Babinus guilty of injustice? - By no means. For although on account of hatred he has sinned gravely against charity, nevertheless more probably he has not injured the virtue of justice, because he has violated no strict right of Roger. The same would have to be said if someone from hatred had turned the testator away from constituting Paul heir, so that anyone else would be constituted in his place. - Recall what was said n. 757. q. 15°. q. 16°.

6° a) John intercepts letters by which Paul seeks some office, and thus impedes him from obtaining that office. b) Peter, the secretary of the Governor, sets aside a little the letters by which Caius was demanding some office, so that the office meanwhile may be conferred upon Titius. c) Iphigenius reads letters sent to Cornelius and opened by accident, and uses the knowledge derived from this for his own advantage, but without any damage of Cornelius. d) Antony, a secretary hired by Hubert for a price, uses knowledge received on occasion of his office to the detriment of Hubert, or even of those who wrote letters to this man. To what are John, Peter, Iphigenius, Antony bound? - John, Peter, and Antony are bound concerning the damage respectively toward Paul, Caius, Hubert, or those who wrote letters to this man, since they used unjust means to impede them from the obtaining of a good. And indeed John and Peter are bound to compensation to be estimated according to the reason of the hope which shone upon Paul and Caius of obtaining the office. But Iphigenius is bound to nothing, since he inflicted no damage.

7° Charles persuades the Governor to choose Patrick rather than Kilian, otherwise certainly to be designated, for an office. To what is Charles to be obligated? To nothing, provided that in persuading he used no fraud, calumny, or other unjust means. (n. 757. q. 15°.)

8° Hilary a) from hatred toward Philip induces the notary that in favor of Philip an act not be done before him, which otherwise will be invalid; b) in order to harm Bertha, otherwise to be instituted heir by Caius, he craftily removes the secretary, or another suitable person for drawing up a will, lest the dying Caius use his work, who will scarcely have the work of another. Is Hilary guilty of unjust damaging? He certainly is in the former case, because, since the notary by force of his office was bound to furnish his work to Philip, who, as is supposed, asked for it, he deprived Philip of his strict right. Resolve the same of itself in the latter case. I say: of itself; for since everywhere among us the will of a dying man can obtain force also in another way, namely by declaring it before witnesses, there will scarcely be an obligation of restoring to Bertha, unless force was employed by Hilary lest the will be made in any manner in which it could be valid.

9° Felix a) detains a messenger lest a business useful to Ferdinand be transacted; meanwhile he uses the occasion for his own utility. b) Elsewhere he hires all the post-horses in the town for a price lest the same Ferdinand betake himself to a certain place, where he would have made an immense gain. Is Felix bound to make Ferdinand harmless? A distinction must be made. If by force or threats he detained the messenger or hired the post-horses, affirmatively. If only by persuasion or art, negatively, unless the messenger had been hired by Ferdinand, or by another contract ought to have conducted Ferdinand's business.

Generally each one is bound from justice to repair damage which he has efficaciously and unjustly brought upon the neighbor in goods of the soul, both natural and supernatural, provided that this damage can be repaired in the same order. For no one has a less strict right not to be injured in goods of this kind than not to be injured in goods of fortune.

805. Resolutions. - I. As to damage in supernatural goods:

1° He who by force, lie, fraud, or unjust fear induced someone into lethal sin is bound under mortal sin from justice to reparation of the damage, by taking away the force or seduction, by manifesting the error, etc. But one who without force or fraud, but only by counsel, induced someone to sin lethally, is indeed bound from charity to revoke that counsel, but not from justice, because no injury is done to one knowing and willing.

2° He who by deceit induced another into error, especially practical, from which grave damage can arise to him in matter of morals, is bound from justice to repair the damages which come from it, and therefore with all care to remove him from error. Say the same concerning speculative error about the articles of Faith.

3° He who by force, grave fear, or fraud impeded someone from entrance into Religion, or induced one already entered to desert Religion, is bound from justice to remove the fraud and deceit; for each one has a right not to be unjustly impeded or drawn away from the obtaining or possession of so great a good. He is likewise bound to repair damages caused to the monastery or Order through the departure of a professed religious, or even more probably of a novice.²

4° He who inculpably placed a cause of damage in spiritual goods, for example preaching false things in a moral matter which he thought true, is bound to the same thing as a material damager who can still impede the damage. Recall what was said n. 749. q. 3°.

806. • II. As to damage in natural goods:

1° He who deprived another of memory, reason, etc., through poison, a love-potion, etc., is bound from justice to repair everything which is reparable from the damage unjustly inflicted.

2° He who by fraud impedes another from learning a science, an art, ... or from teaching others, is bound to dispel the fraud and to repair temporal damages which have arisen from it.

3° He who from office ought to teach an art or science is bound to correct errors, if he has admitted any of some moment. The same obligation also lies upon him if from negligence or levity he has mixed probable things with improbable.

4° But if someone gratuitously and without the obligation of agreement or office were to teach badly, that is, without any or with slight progress of the pupil, from negligence or ignorance, fraud and deceit being set aside, he would not be bound to reparation.

5° He who inculpably placed a cause of damage in natural goods is bound to the same thing as he concerning whom in the next preceding number under 4° it was said.

Namely 1° on account of homicide, 2° defloration, 3° adultery.

807. • From homicide and mutilation a threefold damage can arise: spiritual, when the victim is deprived of the sacraments or of time for due preparation; natural, from life or members lost; temporal. From the first there exists an obligation of charity, as far as one can, of helping the soul of the killed person; indeed, according to distinguished theologians,¹ also of justice, if that damage was foreseen in confused manner, for it is a question of a good from whose obtaining the killed person was impeded by an unjust means. Cf. n. 805. 1°. - For natural damage, since it cannot be estimated by price, more probably nothing is owed; nevertheless the confessor fittingly imposes something for penance or from equity. - Temporal damage is either of the injured person himself or of others.

Damage exists for the injured person himself: 1 on account of expenses for the healing of the wound; 2 on account of damage emerging and profit (pure, namely "clear gain") ceasing for the time during which the wounded man could not attend to his accustomed work or business. Both this (if it was foreseen) and that (unless they have been condoned by the dead person²) must be furnished: a. by any heirs whatever of the dead person; b. by the heirs of the killer or wounder; for the former succeed into the rights of the dead person, the latter into the burdens also of the killer or wounder. - On account of funeral expenses, since they would have had to be made at some time, nothing is owed, unless perhaps, on account of a killing inflicted outside the homeland, they had to be greater.

The others to whom damage can exist are understood of themselves only to be parents, wife, and children, insofar as they actually are deprived either of support or of profit to be perceived, with attention to the hope of life and the condition of the deceased. - Only, that is, not brothers, sisters, and the other blood-relatives, since not these, but only those constitute one moral person with the deceased, namely the family, so that by homicide damage is directly inflicted unjustly only upon them. Wherefore not even the one killed could condone to the killer the reparation of this damage. Nor are creditors of the deceased understood here; because if by his death they are frustrated of payment of the debt, this follows from the killing only by accident and remotely. - Of themselves, because if someone kills another, not I say foreseeing, but intending by this very murder to damage the brothers or creditors, or to impede the making of a will, the damage must be furnished. Cf. n. 692. 5° and (r) p. 475. - In reality, because if, for example, the wife has married equally advantageously, or she, the parents, children are supported by a friend of the killed man, no reparation of damage is owed to them as to support, since it was in fact not inflicted.²

Reparation of damage inflicted by homicide perpetrated without theological fault is also licitly sought from a judge. Cf. n. 747. III.

808. Questions. - Query 1° Does an obligation of justice remain in the heirs if a murderer is punished with death without having repaired the damages?

Resp. Affirmatively. For penalty satisfies vindicative justice, but not commutative justice. Therefore heirs must pay debts from commutative justice, unless the injured parties do not complain, provided nevertheless that the thing does not exist or the damage is not very grave.³

Query 2° Is he bound to restitution who kills another by exceeding the mode of just defense, or the MODERATION OF BLAMELESS DEFENSE?

Resp. Affirmatively, if he deliberately exceeded, because the invader has a right not to be unjustly killed; therefore the killer, by knowingly exceeding the limits of just defense, commits grave injury. - Thus the common opinion. S. Alph.,³ with Lugo,⁴ against some older authors cited by the same Lugo.⁵

Query 3° Is he bound to anything who kills another in a duel?

Resp. More probably negatively, whether he was the one provoking or the one provoked. For no injury is done to one knowing and willing, when the right can be remitted; but even one accepting the fight both willed and could remit temporal damage. Therefore... S. Alph.,⁶ Lugo,⁷ etc.

Others say that the one provoking is indeed bound to restitution if he killed the adversary, but not the one provoked. - But others obligate each one. But these opinions are not to be attended to in practice.

Query 4° To what are those bound who have ownership of railways and of ships which are moved by steam, if, the rules of prudence not having been observed, someone is killed or wounded in them?

Resp. They are bound to pay as much as the judge by equitable judgment decrees to be paid; and they sin and are bound to restitution if by fraud, deceit, and gifts, as often happens, they induce the judge to bring an unjust sentence.

809. Principles. - I. For merely natural damage, or for the injury of bodily integrity and the loss of virginity, nothing, at least more probably, is to be restored; because that damage cannot be compensated by money.¹ Hence, agreement being set aside and no other damage having followed, for example because the crime lies hidden, or the woman has married honorably, has professed religion, or has died at a premature age, nothing is owed.

II. Even for temporal damage which has followed from base intercourse, nothing, except the education of the offspring, must be restored when the woman consented to the solicitation; for no injury is done to one knowing and willing.²

III. If the deflowerer violated the girl by force or fraud, he is bound to repair all damages coming from it to her or her parents. Yet, if Marriage was not promised, he is not bound to marry her, unless the damage can in no other way be repaired or he has been condemned to this in penalty. But he is bound only for part of the damage who, through moral force alone, suppose threats, reverential fear or fear of infamy, very importunate prayers, touches and kisses, elicited the consent of the girl.³

810. Questions. - Query 1° Is the violator bound to marry the girl violated under promise of marriage?

Resp. The common opinion, and according to S. Alph.⁴ altogether to be held, affirms. The reason is 1) because otherwise the damage cannot be repaired adequately; 2) because the unnamed contract Do, that you may give, etc., is then perfected when the handing over of the thing or the furnishing of the work is done; and then the reason and force of laws which render base agreements void ceases. For the obligation which is then contracted by the other party is not base, nor does it drive one to a base thing. - Yet note the following.

I. If the promise was not the motive cause of the woman's consent, it, as any other gratuitous promise (n. 872 sq.), will have to be interpreted.

II. If it was the motive cause, it obliges from justice, unless excusing causes are present. Hence the obligation ceases: 1. If the outcomes of a very bad marriage are feared, for example on account of the lighter disposition of the girl, hatreds and quarrels of the families, etc., because in these cases the promise, as being concerning an illicit thing, was invalid. 2. If the man afterward discovers that the girl had already been deflowered before or had afterward fornicated with another. The reason of the former is that there is no obligation of furnishing to a corrupted woman what was promised to a virgin; of the latter, because faith is not to be kept with one breaking faith. 3. If, as is clear, the girl herself rejects marriage. 4. If an impediment of marriage is present, the obligation ceases, because it is impossible of fulfillment, if in it there is either never or rarely dispensation; because it is concerning an illicit thing, if the woman is non-Catholic (yet in this case, under the due conditions, dispensation must be sought, if the woman, otherwise honorable, suffers danger to her reputation on account of the man's delict). The obligation holds, and that even with grave inconvenience, if dispensation is usually granted in the impediment, whether an agreement of seeking dispensation is supposed or even set aside. Otherwise if (the agreement being set aside) the fornicator inculpably did not notice the impediment and cannot remove this without grave inconvenience (which nevertheless today scarcely exists). The reason of each is that one who has taken upon himself some obligation by an onerous contract is bound, even with grave inconvenience to himself, to remove impediments which he knows or culpably does not know to stand in the way of fulfilling this obligation; but not those to which (the agreement being set aside) he inculpably did not attend. 5. From a fictitious promise, as from damaging fraud, an obligation exists equally as from a true one. But it does not exist in the case in which the fiction could easily have been perceived by the woman, for example from ambiguous words or from known notable disparity of condition; for then she wished to be deceived and is to be judged to have consented freely.

Compensation made in another way than through marriage is required and suffices: a) Very probably, in the case under 5, if the woman was ignorant even of the fornicator's disparate condition, because justice obliges only to equality, and the woman was not seeking consent of so great a value; b) In the case under 3, if it does not stand through the girl that she enters into nuptials, for example the parents impeding them. Then compensation made in another way suffices, as is clear of itself; more truly, as it seems to S. Alph., it is required, because the promise was made principally for repairing damage; c) In the case under 4, if (the agreement concerning seeking dispensation being set aside) the fornicator did not inculpably notice the impediment of marriage and cannot remove the impediment without grave inconvenience. Resolve the same if dispensation is denied. The reason is that it is always true that damage was unjustly given.

811. • Query 2° Is the violator bound to anything toward the parents of the violated woman, if she freely consented to the sin, for example because they must increase her dowry?

Resp. Most commonly negatively, since the girl is mistress of her body, not the parents. Wherefore, since she is not bound toward them concerning damage, neither can the violator be bound concerning it. Except if this man, by spreading abroad the violation, brought infamy upon the girl, in which case he is bound concerning every damage arising to the girl and the parents from the infamation.¹

Query 3° To what is the violator bound toward spurious offspring?

Resp. 1° If he oppressed the mother by force, he is bound to all expenses of nourishment and education. The reason is clear from what has been said. Yet in his default, the mother ought to undertake care of the child, although she admitted no fault, because she is the mother. But then she preserves recourse against the corrupter, who is bound to compensate to her all expenses which she made on occasion of the offspring.

Resp. 2° If the woman consented to the sin, by natural right both parents are equally and in solidum bound to those expenses. As regards the Fed. States, Smith notes:³ "The ... duties of parents of bastards are regulated to a great extent ... by local statute."

812. Principles. - I. Each adulterer is bound in solidum to repair all damages of the family, if the crime was voluntary on each side, because the whole is imputed to each. Hence 1° all expenses which the husband sustained in nourishing and educating the offspring must be restored. But if these expenses are compensated by the labor of the spurious son, damage which afterward must be repaired is not in reality given to the father. 2° If the illegitimate son with legitimate or other innocent heirs (but not those of the adulteress alone) has already received the inheritance, compensation according to proportion must be made to these.¹

II. The adulteress must restore from paraphernal goods (and, if surviving the husband, from goods coming to herself) to husband and children through donations, through contract, testament, etc. If she does not have them, let her administer the family more diligently, be more sparing in private expenses, and work more diligently insofar as state permits.

III. If the woman consented by force or fear, the adulterer alone is bound; but he who by contract took all damage upon himself is bound in the first place.

813. Questions. - Query 1° Is a woman bound to reveal her crime if she cannot repair the damage in another way?

Resp. Negatively, speaking generally. The reason is 1° because commonly this revelation cannot be made without great infamy, and often also not without danger of death, or perpetual hatred, or other grave evils; 2° because with difficulty could she repair the damage even by it, especially since the son, except in the case in which the mother as adulteress would be condemned in the external forum, is not bound to give faith to her. Except: 1) if the mother is of lost reputation; 2) if by manifesting herself to the spurious son she would probably hope that the son would believe her and would cede the goods, nor would there be feared further great infamy or vexation of the mother; 3) if she could avoid the damage by manifesting herself only to the husband. But the cases of these exceptions, especially of the second and third, are very rare, not to say metaphysical.²

814. • Query 2° What in doubt whether the offspring is of the husband or of the adulterer, or from this adulterer rather than from another?

Resp. to the 1st, more probably, adulterers are bound to nothing, because the damage is not established.³

Resp. to the 2nd. Negatively; see n. 154.

Query 3° Must those things be restored which are given or left to a spurious person because he is thought legitimate?

Resp. Negatively, unless either the spurious person knows himself to be such (n. 894), or some unjust means is used so that another be impeded from obtaining those gifts (n. 692. R. 5°), for example if the adulteress, knowing that some rich man is going to give to the children of her husband, substitutes the spurious child.¹

815. • Query 4° If wealthy adulterers or fornicators send offspring to a foundling hospital, are they bound to repay the expenses?

Resp. It is controverted. The opinion more probable to S. Alph.² denies it, because foundling hospitals have been erected for all indiscriminately abandoned infants, who are cast off by parents. Nor does it stand in the way that aids are supplied by the Government or by the Municipality for these little children, because these are assigned for abandoned children generally, without attention being paid to the parents. Moreover hospices of this kind have been instituted for this end, that illegitimate children be freed from the danger both of eternal and temporal death, to which illegitimate children of the rich are also exposed. In practice parents are to be exhorted that, at least under the title of penance, they contribute something to the foundling hospital.

II. Principles. - Three things are to be attended to in the present matter:

1. The adulterer who by force, grave fear, deceit, or another unjust means led the wife to carnal union is bound from justice, he alone, to repair all damages which from this come of themselves to the husband and legitimate children, because he is the sole truly efficacious and formally unjust cause of these.

2. The adulterer who did not use an unjust means, but obtained consent from the wife wholly freely, is bound from justice in solidum with the wife to repair the damages inflicted on the husband and children, because both together are the unjust, efficacious, and culpable cause of them.

3. Several adulterers who, from carnal union had at a time apt for conception, can be the father of offspring certainly adulterine, are bound to reparation in proportion to the doubt, at least if they acted thus by common counsel or with advertence, because then they are the voluntary cause of the uncertainty of the father, which already is a damage certainly inflicted and to be repaired; otherwise it is uncertain whether they are bound to restore, since rather the mother is the cause why the father cannot be established.

III. The manner of restitution is altogether to be attended to, since in practice it is often difficult because of the danger of suspicion by which the peace of the family would be disturbed. Wherefore:

1. The male adulterer can restore by laboring for the family, or by giving to the husband or legitimate children, whether among the living or by testament, according to prudent estimation.

2. The adulterous mother can restore: a) from her own goods if she has those of which she can dispose without prejudice to the husband; b) from the profit which she makes from her own labor, or by exercising a business or art; c) by diminishing customary expenses, by caring for the family property more diligently, and by living more sparingly insofar as can be done according to her condition, to which, if another manner is lacking, she is also bound; d) by applying to the adulterine offspring the alms which according to her state she can give, or by asking from the husband an alms for a poor relative; e) by secretly taking, as much as she safely can, from the goods which are to come to the adulterine child or have already come to him, and by compensating the legitimate children with them; f) or also by prudently giving counsel to the illegitimate child concerning religious life.

3. If it is possible for the adulterine offspring to be educated in a hospice or foundling house without suspicions arising, care must be taken that it happen thus, since in this way the expenses of education are greatly limited and division of the inheritance is avoided. Nor generally is there an obligation of restoring to the hospice, unless in the case in which it is sustained only by public expenses of the city and is destined exclusively for poor infants, and the parents are not truly poor.

4. Restitution for damage already following is to be made as soon as possible. For damage not yet inflicted but to be inflicted it suffices that the guilty party so arrange matters that he restore at the opportune time, unless nevertheless he is near death; in which case he is bound immediately to restore, by himself or through another, according to the proportion of probability of the life of the adulterine child, attention being given to his age and strength, and according to the proportion of damage to be inflicted on others.

Thus also he could commit it to the confessor, or to another trustworthy man, that he restore the whole damage from goods to be handed over to him, yet in such a way that, if the adulterine offspring dies before the putative father, he would dispose otherwise of the goods received, as the adulterer had determined.

IV. Observations. - 1. There is no obligation of restoring: a) for the injury inflicted on the husband through adultery, if he has suffered no moral detriment from it, as in the case of secret adultery, or if he does not care for reparation; b) for temporal damage, if none has followed, as if offspring has not been born, or, having been born, by his own labor has compensated the expenses of his education; c) if the husband consented in the adultery; unless nevertheless to necessary heirs, in the case in which on account of adulterine offspring born they would be frustrated of part of the legitimate inheritance.

2. Detriments which come from adultery merely per accidens are not to be restored, from the fact that other relatives or friends give or leave certain things to the adulterine child which otherwise would have come to the legitimate children.

3. Nor is there to be restitution in the case in which the offspring born is doubtfully adulterine; for in doubt offspring received in marriage is presumed to be from the legitimate husband, according to the axiom: the father is he whom marriage indicates. And otherwise restitution is not to be made as long as it is uncertain that the action was efficaciously damaging.

4. An adulterous woman can sometimes be bound alone to repair the damages which happen by reason of inheritance: namely if she could easily remove the adulterine child so that he would be nourished outside the family, for example in a foundling house or hospice, and the adulterer did whatever he could to obtain this; for then he effectively retracted the cause of the damage and did not sin against the family, and the adulterous woman alone efficaciously caused the damage.

5. Nevertheless, regularly, even if it is necessary for avoiding or repairing damages, the mother is not bound to manifest her crime: namely she is not bound with danger of life, nor with danger of graver infamy unless she is already suspected and has partially lost reputation, nor with danger of great hatred on the part of the husband and relatives and of graver discord, nor without hope of fruit, when the manifestation will be of no use, whether because the son will not believe his mother, or because he will not restore, since it is foreseen that he cannot or will not wish to do this.

Nevertheless the mother would be bound if the aforesaid dangers of death, graver infamy, indignation, and scandal were absent, and the son were thought likely to believe his mother and to restore.

6. The illegitimate son is not bound to believe his mother affirming his adulterine origin, even under oath, but can consider himself as legitimate, unless from circumstances or indications the testimony of the mother produces such certainty as would suffice in a public judgment, as if the absence of the putative father at the time of conception is certainly proved. But if this is thus established, the son cannot retain the paternal inheritance, nor gifts which come to him from error, unless meanwhile he has lawfully prescribed.

7. The confessor to whom a dying adulterous woman would wish to entrust that after death he declare the offspring spurious cannot accept that office, both lest confession be rendered odious, and because the offspring would not be bound to give faith to his words, and thus the manifestation would be useless.

V. Corollary concerning Forcible Violation and Fornication. - Similar things hold for unjust or violent violation, which is carnal union with an unwilling unmarried woman, or the oppression of an honorable woman, even if not a virgin or not a minor; to whom damaging injury can be inflicted by reason of future marriage and by reason of offspring perhaps to be born. Now the unjust violator is bound to restore from justice:

1. On account of temporal damage, as inability or difficulty of marrying, infamation and dishonoring, syphilitic infection, etc., if in fact it has been inflicted, provided that it arose of itself from his action and consequently was foreseen in confused fashion. To this the one who oppressed the woman is also bound: to marry her, if he promised this, even fictitiously, and therefore truly deceived the woman, or if the damage cannot be repaired otherwise and graver evils are not prudently feared; otherwise he ought to dower her or increase her dowry, or otherwise take care that she can marry according to her condition, or contribute to her support, according as the damage was inflicted and it is possible to repair it.¹ Nevertheless he is not bound to compensation if in fact the woman has suffered no damage, as if she has already married well, or even otherwise could not have married, or has entered religion, or has been defamed from her own indiscretion, or has now died by premature death.

¹ See more in Summa Theol. Mor., II, n. 382.

2. On account of offspring born, so that, if he is the certain father, he ought from justice to provide for the whole support and education, according to the condition of the mother, until the offspring can suffice for himself. But if the father is uncertain, because several have had carnal union, he is bound to restore in proportion to the doubt, at least if they acted thus by common counsel or knowingly, because the voluntary cause is of the uncertainty of the father, which already is a great damage for the mother and offspring; otherwise he cannot be obliged to restore anything, since rather the mother is the cause why the father cannot be established.

In the case in which the woman has suffered violence or injury in no way, but has freely consented, the man contracted no obligation from justice of itself, but can be obliged from piety and charity. And indeed:

1. To the support of the offspring, according to the condition of the mother, by natural right he is bound for half the part, if he is the certain father, even if the civil law prohibits inquiry concerning the illegitimate father; but he is bound in solidum with the mother, so that, if she supplies nothing, he ought to provide for the whole; but if the civil law or the civil judge petitioned according to law should determine the quantity of support to be paid by the illegitimate father, this would have to be paid. But if there are several uncertain fathers, they are bound to half the support in proportionate part, at least if they acted thus by common counsel or knowingly, as was said above; otherwise none can be obliged to compensate for the support of the offspring.

2. To acknowledgment of the offspring and to its legitimation through subsequent marriage, unless graver inconveniences stand in the way.

Let it be noted that the man of himself owes nothing to the woman:

a) on account of the carnal union had, because to one knowing and consenting no injury is done; unless per accidens, as if he promised something, or, by indiscreetly manifesting the crime, defamed her;

b) on account of the expenses of childbirth, because by offering her body the woman is judged to have taken this burden upon herself.

Note. A twofold fault is distinguished : one theological, the other juridical. Theological fault is formal sin before God, whether mortal or venial. Juridical fault is the omission of some diligence from which damage follows to another. Such an omission, I say, jurists call a fault, even if perchance it be not a fault before God, for example because it is either involuntary, or is not of such diligence as one is bound to employ. But if it be a voluntary omission of such diligence as one can and is bound to employ, it will be at once both a theological and a juridical fault.

Juridical fault is divided into gross, light, and lightest. Gross fault is the omission of the diligence which prudent men are accustomed to employ in such a case, in such a business; as if someone go out of the house without having closed the door of the inner room.

Light fault is the omission of the diligence which the more prudent are accustomed to employ; as if someone go out with the door of the room indeed closed, but not bolted.

Lightest fault is the omission of the diligence which the most prudent are accustomed to employ; as if someone did not try with his hand whether a closed and bolted door were well bolted.

It is asked, therefore, whether in simple damaging, in which no gain accrues to the damager, theological fault is required, or that he have sinned before God, in order that he be liable to restitution, or whether juridical fault suffices. Concerning which :

I say : No one, contract set aside, is bound to restitution by reason of damage inflicted before the sentence of the judge, unless he have admitted theological fault against commutative justice in inflicting the damage. This is the common teaching against Adrian and certain ancient authors.

Proof. The damager, in the case proposed, is not bound to restore by reason of a thing received ; because, as is supposed, he received nothing, nor has he been made richer by the damage : nor by reason of an unjust action ; for where there is no fault before God, the damaging action is not formally unjust : nor from positive law ; for none can be assigned outside of contract. Therefore from no heading is he bound to restore,

It is confirmed. If damaging merely materially unjust induced the obligation of restoring, it would follow that a madman, or one asleep, or one who damaged his neighbor by a mere chance event, would be held to restitution ; which no one admits.

Therefore, however much damage to another may follow from your act, if you have not truly sinned before God, either because you employed the due diligence, or because you omitted it through natural inadvertence or blameless forgetfulness, although it is called gross fault in law, you are not held to restore in the forum of conscience before the sentence of the judge.

And this is true even though the damager deal with a thing illicitly, provided it be not dangerous and as it were a way leading to damage, such that neither per se nor in the majority of cases does damage follow from it, nor could it have been foreseen in a human way as about to follow; because, although the cause is voluntary, it is nevertheless not voluntary as the cause of such damage, which could not be foreseen in a human way as about to follow from it. Hence, if while hunting in a prohibited place or time you kill a man, thinking invincibly that you are killing a wild beast, you are not held to restore on account of the homicide.

I said, « before the sentence of the judge ; » because the judge, where there is gross juridical fault, though there be no theological fault, through natural inadvertence or some other case, is accustomed to condemn the damager to restitution or rather to payment, or to the surrender of the animal, if the damage was inflicted through an animal, unless it be otherwise certainly evident that he is innocent. And the damager is held, more probably, to obey this sentence as just in the forum of conscience. For this sentence does not rest upon a false presumption, as certain ones think; because the judge condemns you not because he presumes you have sinned internally before God, but because you have sinned externally, that is, because you omitted the diligence which prudent men are accustomed to employ, on account of which juridical fault, though not theological, the laws decree the obligation of restoring, with the sentence of the judge supervening.

And indeed justly, both because gross juridical fault usually proceeds from theological fault, although the contrary sometimes occurs per accidens, and laws attend to what happens for the most part; and on account of the common good, namely that men be more attentive in guarding their own goods, and more cautious in avoiding damage to their neighbor.

[You will ask whether he is held to restitution who blamelessly placed the cause of the damage, if afterward he neglect to remove it.

I answer, affirmative ; because he who placed the efficacious cause of the damage, and does not retract it when he morally can, wills it virtually, and consequently becomes at that moment strictly, effectively and formally the unjust cause of the damage³⁵¹. ³⁵¹ S. Lig., lib. VI, n. 621.

I said, « when he morally can, » that is, without great and proportionate inconvenience, as is commonly taught.]

An unjust damager is called one who harms his neighbor in the goods of fortune, and yet does not thereby become richer. One is formally unjust and another juridically only unjust, according as the fault was theological or juridical. - But theological fault is called that which includes an offense against God, that is, formal sin, whether mortal or venial. But juridical fault is the omission of diligence, whence damage comes to another, whether it is a formal sin or not. This again is distinguished, and from the common interpretation of Roman law, is gross, slight, very slight. Gross fault is the omission of diligence which men are commonly accustomed to apply in similar affairs. Slight fault is the omission of diligence which the more prudent and more diligent men are accustomed to apply. Very slight fault is the omission of diligence which is customarily applied only by the most prudent and most diligent. - Cf. St. Alphonsus, n. 549. - Kenrick, tract. 10, part. 2, n. 177.

I say. An unjust damager is held to restore the whole of that which is equivalent both to the thing damaged and to the foreseen damages arriving beyond the thing damaged itself. The reason is that otherwise the injured owner would not be made altogether indemnified, which is required for repairing justice. - But in order that he be held to this from natural right, and consequently in the forum of conscience, before any sentence of the judge, it is necessary that he have damaged truly, efficaciously, and formally. Truly indeed, insofar as he violated a strict right through the injury of commutative justice; efficaciously, insofar as he was not only the occasion, but the proper cause of the damage, so that the effect can and must be imputed to him; formally at last, insofar as he adverted to the unjust action and properly sinned before God. - I said before any sentence of the judge, because after the sentence of the judge an obligation of restoring can arise in conscience even from merely juridical fault. For one must obey the just sentence of a judge; otherwise the laws would not provide for public security and would be empty. But the sentence of which we are speaking is just, because that law is enacted for the common good and tends to making men more cautious, lest they inflict damage on others. - Cf. St. Alphonsus, nn. 550 and seq.; and Hom. Ap., nn. 29 and 41. - Billuart, dissert. 7, art. 4.

Question 1. Whether theological fault is required for inducing the obligation of restitution for damage inflicted upon another's thing, which was held from some contract, for example, of lease, deposit, or loan for use, etc.?

Resp. It is controverted; but the affirmative opinion is, according to St. Alphonsus, very probable unless a special pact intervened. The reason is that the obligation of repairing an injury ought to pertain to the same forum to which the injury itself pertains. - I said unless a special pact intervened, because then a special obligation is knowingly and freely assumed. But theologians who hold the negative opinion affirm that this special pact is always present, not indeed expressly but implicitly; but they prove this by no solid argument. Cf. St. Alphonsus, n. 554. - Lugo, disp. 8, n. 106. - Lacroix, n. 177. - Antoine, part. 2, cap. 3, qq. 2 and 5.

Question 2. Whether he is held to restitution who indeed inculpably placed the cause of damage, but afterward did not prevent it, although he could have prevented it?

Resp. Affirmatively, and the reason is that each one is held from justice to prevent his action from harming his neighbor; therefore he is held also to prevent the evil following from his action from persevering; and consequently, once the error is known, he must correct it, and if he does not do so, then he sins gravely and assumes the obligation of repairing all the damages which come from this. Cf. St. Alphonsus, n. 564.

Question 3. Whether damage following from a cause culpably indeed placed, but already retracted when the damage is inflicted, must be repaired?

Resp. Affirmatively, at least if that damage was determinate and foreknown in species. The reason is that the damager then properly contracted the whole malice and assumed the obligation of restitution; but then he harmed not only affectively, but also by acting effectively and really. Therefore in this way too he must repair the injury, and simple retraction of the will does not suffice.

Question 4. Whether damage inflicted per accidens indeed, but while being occupied with an illicit work, must be repaired?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even confusedly. Nor does it matter that the action was illicit; for this pertains nothing to the notion of justice. Thus a cleric who, by being occupied with hunting contrary to the prohibition of the Church, killed a man as though he were a wild beast, is no more guilty of injustice than a layman who had done this. - Cf. Vogler, n. 170. - Lugo, disp. 8, nn. 72 and 82. - St. Alphonsus, Hom. Ap., n. 39.

Question 5. Whether you are held to repair damage which you inflicted upon someone by error, while you intended to harm another, for example, if you burn the house of Caius, which you think to be the house of Titius, your enemy?

Resp. It is much controverted among theologians, but with St. Alphonsus and others the negative opinion seems probable. The reason is that in this case the damaging action is materially only unjust toward Caius and affectively only unjust toward Titius. It is indeed true that then all the conditions required for urging restitution from unjust damaging are verified, but not in relation to the same person, which is altogether necessary. - Cf. St. Alphonsus, n. 620. - Lugo, disp. 17, n. 75. - Lacroix, n. 200.

Question 6. To what is he held who indeed inflicted grave damage but with light fault, for example, from defect of advertence, etc.?

Resp. More probably he is held to nothing. For he cannot be obligated either under grave obligation or under light obligation: not under grave, because grave obligation does not have proportion with light fault; not under light, because light obligation does not have proportion with a grave thing. - Cf. St. Alphonsus, n. 552. - Lugo, disp. 8, n. 56. - Vogler, n. 109.

Indeed the opinion of those who deny that there is a grave obligation of compensating grave damage inflicted by deliberate theological fault, but only venial fault on account of ignorance or inadvertence to formal gravity, even if the material and objective gravity is known, is probable. For this obligation is not certain; if it were given, it would be either from the thing accepted, or from unjust taking. But not from the first, because the thing is supposed no longer to exist either formally or equivalently; not from the second, because the obligation of restoring ought to be proportioned to the act itself insofar as culpable, and indeed against commutative justice, for the violation of which it is, as it were, a penalty, which cannot be above the demerit. But here the fault is light, and since, where no fault intervenes, there can be no natural obligation, so neither can there be a grave obligation where grave fault has not intervened. Finally, a grave natural obligation does not arise from a light sin, if there is no advertence to the objective gravity, or the material gravity of the damage, or the formal gravity. Cf. Wirceburg, vol. 6, n. 585.

Question 7. Whether he who inflicted grave damage through several venial faults deliberately committed is held under grave obligation to repair that whole damage?

Resp. 1st. Affirmatively, if the damage inflicted is upon the same person, although the damager did not sin gravely. The reason is that here he is held to repair the whole damage voluntarily and freely committed; but the whole damage was freely inflicted and besides is grave by hypothesis; therefore that whole damage must be repaired, and if the damager does not do this, then indeed he will sin gravely. But otherwise one must answer, at least probably, if minute damages were inflicted on diverse persons; because no one has suffered grave damage, not even radically, as when small little thefts are committed. Cf. Vogler, nn. 124 and 126. - Lugo, disp. 8, n. 69.

2nd. But others deny: for it makes little difference whether the objective gravity of the damage is known all together in one taking, or successively in several, if in neither is the formal gravity known. Those individual damagings were light; the formal gravity also was not known. In this case several light obligations can coalesce into one grave obligation just as little as several light sins into one mortal sin. Cf. Wirceburg, vol. 6, n. 587.

Nor should you say that this opinion is identified with proposition 38 condemned by Innocent XI: One is not held under pain of mortal sin to restore what was taken away by a few thefts, however great the total sum may be. But this is not to the point, for even if you prescind from the present question, that proposition was most justly transfixed, because it says universally that there is no grave obligation of restoring what is taken away by several smaller thefts. For certainly this obligation exists if, before he committed the last small theft, the thief adverted that he was completing a grave sum; if he had from the beginning the intention of inflicting grave damage by several little thefts; finally, if those little thefts still exist in the thief's possession either formally or in equivalent. In these cases a grave obligation is certainly given; but from the condemned proposition it does not follow that it is present when the formal gravity of the damage is not known.

Question 8. Whether you are held to repair damage coming to someone on the occasion of your unjust action, for example, if you have stolen and the theft is imputed to him?

Resp. Negatively, whether you did not foresee or did foresee that damage, indeed even if you acted deliberately so that your action would be imputed to him. The reason is that the intention, however unjust, does not make that work externally and materially also unjust with respect to a third party, when of itself it is not such. Except, however, if at some time the circumstances were such that between them and a grave suspicion concerning another there would be a true connection, or if someone expressly used those means which of themselves provide a most grave suspicion for accusing another. Cf. St. Alphonsus, nn. 635 and 636. - Lacroix, n. 157.

Question 9. Whether an owner is held to repair damage inflicted upon a neighbor by his animals?

Resp. Affirmatively, if from theological fault he neglected to watch over the animals. For each one by natural right is held diligently to guard his animals, lest they inflict damage on others, just as he must guard against detriment coming to his neighbor from his own actions. But, theological fault being excluded, he is indeed not held before the sentence of a judge, but he is certainly held after the sentence, as is clear from what has been said.

But as regards us, Kenrick has these things: "By most American laws, as also by English laws, animals inflicting damage are detained until satisfaction is made to the injured person, and they are sold by public authority if the owner neglects to redeem them. But if the owner of the estate omitted to enclose it with a lawful fence, he can recover nothing, but he himself will be held to repairing the damage, if he has wounded or killed the animal." - Cf. Kenrick, tract. 10, part. 2, n. 185.

Question 10. Whether he is held to restitution who prevented another from obtaining some good?

Resp. 1st. Affirmatively, if the one impeded has a strict right to that good. 2nd. If he does not have a strict right to obtaining the good, one must distinguish: Affirmatively, if by unjust means he is impeded from obtaining the good; for anyone has a strict right not to be impeded unjustly from the obtaining of a good of which he is not unworthy. In this case restitution must be made according to the certainty or probability by which he is judged otherwise to have been going to obtain such a good. Negatively, if he is impeded by means just in themselves, because then no right of another is violated. - Cf. St. Alphonsus, Hom. Ap., n. 61. - Lacroix, n. 69. - Laymann, l. III, tract. II, cap. VII.

Hence he exists as obligated to restitution toward a son who induces the father to exclude him from an inheritance to which by civil law he has a strict right. Likewise he is held to restitution who, by lies scattered against a poor man, prevents alms from being given to him. Those sellers also are held to restitution who unjustly detract from other sellers and from the merchandise for sale among them, in order that they may turn buyers away from them and entice them to themselves.

I say. Each one is held from justice to repair damage which he efficaciously and unjustly brought upon his neighbor in the goods, both natural and supernatural, of the soul, provided that that damage can be repaired in the same order. The reason for the obligation is that each one has a right no less strict not to be injured in goods of this sort than in goods of fortune. But the reason for the condition added is that otherwise reparation is not possible.

You Will Resolve. - 1st. He who by force, lying, fraud, unjust fear, induced someone into lethal sin, is held under mortal sin from justice to reparation of the damage, by removing the force or seduction, by manifesting the error, etc. But he who without force or fraud but only by counsel induced someone to sin lethally, is indeed held from charity to revoke that counsel, but not from justice, because to one knowing and willing no injury is done. - Cf. St. Alphonsus, nn. 660 and 661.

2nd. He who by deceit induced another into error, especially practical error, from which grave damage can arise to him in the matter of morals, is held from justice to repair the damages which proceed therefrom, and therefore with all care to remove him from error. Say the same of speculative error concerning articles of faith.

3rd. He who by force, grave fear, or fraud has impeded someone from entrance into religion, or has induced one already entered to desert religion, is held from justice to remove the fraud and deceit; for each one has a right not to be impeded unjustly from the pursuit or possession of so great a good, or to be drawn away from it. - Cf. St. Alphonsus, n. 662.

4th. He who has deprived another, for example, of the use of memory, etc., by poison, a love-potion, etc., is held from justice to repair all that which is repairable from the damage unjustly inflicted.

5th. He who by fraud has impeded another from learning a science, an art . . . or from teaching others, is held to remove the fraud and to repair the temporal damages which have arisen therefrom.

6th. He who from office ought to teach art or science is held to correct errors, if he has admitted any of some moment. - I said from office, because if gratuitously and without the obligation of some agreement he teaches and procures no or only very little progress in his hearers through negligence or culpable ignorance, excluding the case of fraud or deceit or special damage proceeding from the error which he taught, he is not held to reparation.

I say. A deflowerer or fornicator is held to nothing for merely natural damage or for the loss of virginity, because that damage cannot be compensated by money. - The same must be said of temporal damage which has followed from base intercourse, except the education of offspring, when the woman consented to the solicitation, because no injury is done to one knowing and willing. But if the deflowerer by force, fraud, deceit, or grave threats has violated the woman, he is held to repair all damages coming to her or her parents, because he is the efficacious and unjust cause of these damages. - Cf. St. Alphonsus, nn. 640 and 641. - Elbel, n. 220. - Lugo, disp. 12, n. 11.

Question. To what is a fornicator held toward spurious offspring?

Resp. If he has violated the mother by force, he is held to all expenses of nourishment and education, as is clear from what has been said. Nevertheless, in his default, the mother ought to undertake the care of the child, although she admitted no fault, because she is the mother; but then she retains recourse against the corrupter, who is held to compensate her for all the expenses which she has incurred on occasion of that offspring. - But if the woman consented to sin, both are held equally to the expenses if natural right is considered; but if attention is given only to civil laws, then:

1st. By Roman law the mother is held to nourish the infant for three years, and afterwards the father ought to provide for him.

2nd. By our law, Kenrick has these things: "The laws of the United States for the most part permit it to be defined by the decision of magistrates or judges what is to be paid; holding him as father whom the mother, under oath, affirms to have begotten the offspring." - Kent accords with these when he says: "The mother or reputed father is generally in this country chargeable by law with the maintenance of the bastard child; and in New York it is in such way as any two justices of the peace of the county shall think meet; and the goods, chattels and real estate of the parents are seizable for the support of such children if the parents have absconded. The reputed father is liable to arrest and imprisonment until he gives security to indemnify the town chargeable with the maintenance of the child. These provisions are intended for the public indemnity and were borrowed from the English statutes on the subject; and similar regulations to coerce the putative father to maintain the child, and indemnify the town or parish, have been adopted in the several States." - Cf. Kenrick, tract. 8, n. 85. - Kent, Comment. vol. 2, part. 4, lect. 29, n. 215.

I say. If an adulterer extorted the consent of a woman by force or grave fear, he alone is held to repairing the whole damage, as is clear in itself. But if indeed the woman consented freely to adultery, both adulterers are held in solidum to repairing all damages of the family, because all things are to be imputed to both as to an efficacious and unjust cause. - Wherefore both ought to restore all expenses which the husband has borne in nourishing and educating the offspring; and if an illegitimate son has already accepted the inheritance with the legitimate children, compensation must be made to them according to proportion. - Cf. St. Alphonsus, n. 659.

You Will Resolve. - 1st. An adulterous woman, if she has paraphernal goods, must from them restore to the husband and to the injured children through manual gifts, by contract, testament, legacies, etc. If she does not have them, let her administer the family more diligently, be more sparing in private expenses, and work more diligently, insofar as her state permits.

2nd. If nevertheless she cannot repair the damage in another way than by confession of her crime, she is not held to this, both because generally this revelation cannot be made without great infamy and often not without danger of death or perpetual hatred and other grave evils, and because it is difficult to repair damage even by this, especially since the son is not held to give faith to the mother. Many except the case if the mother is of ruined reputation; but not even then is the son held to believe her testimony. - Cf. St. Alphonsus, nn. 654 and 655. - Ballerini, note (a), p. 610.

3rd. In doubt whether the offspring is of the husband or of the adulterer, or from this adulterer rather than from another, no strict obligation can be imposed, because there is no certainty concerning it; for in neither case can the true father of the offspring be designated with certainty, and therefore neither can the true cause of the damage. Nevertheless, except with St. Alphonsus: 1st, if the second adulterer adverted at least implicitly that he would be the cause of that uncertainty; 2nd, if the adulterers perpetrated adultery by common counsel. - Cf. St. Alphonsus, n. 658.

4th. Probably wealthy adulterers or fornicators are not held to reimbursing the expenses, if they have sent the offspring to the foundling asylum. The reason is that foundling asylums have been erected for all infants indiscriminately who are cast off by their parents. Nevertheless, all agree that in practice parents are earnestly to be exhorted to contribute something to the foundling asylum, at least under the title of penance. - Cf. St. Alphonsus, n. 656. - Lugo, disp. 13, n. 3. - Kenrick, tract. 8, n. 84.

I. Theologians reckon nine kinds of persons who concur, either positively or negatively, in the loss of others, and who are comprehended in these verses:

Command, counsel, consent, flattery, harbouring, Partaking, silence, not opposing, not disclosing.

II. He who inwardly assents to a man already wholly prepared to inflict an evil, no counsel or persuasion being added, sins indeed against charity, but not against justice: therefore he is free from restitution, because he does not flow into another's loss. But before discourse be instituted concerning causes cooperating to evil, a few things are to be premised concerning those who hinder the obtaining of a good.

III. QUESTION I. Whether one who applies an efficacious impediment, that a man may not obtain a benefice to which he has a right, whether in the thing or to the thing, is liable to restitution? ANSWER. The common opinion affirms it, whether this impediment be applied by fraud, guile, or force, or by entreaties, persuasion, and gifts. It is to be observed nevertheless that if the collator had constantly decreed to confer the benefice, the whole loss is to be made good. If the collator was doubtful, the loss is to be compensated according to the degree of hope. That the impediment may bring in the debt of restitution, it must be efficacious, that is, that on account of such impediment the effect should follow. The reason is obvious. He who by force, guile, or fraud hinders a man from obtaining a benefice to which he has a right, whether inchoate or consummated, inflicts an injury upon him: he who by counsel and persuasion hinders the obtaining injures both distributive and commutative justice. Therefore he who hinders is bound to make good the loss, either wholly or in part, according to the quality of the greater or lesser right which the candidate had to the benefice. But if you turn away the candidate himself by entreaties, persuasion, or counsel, you are held to nothing; because to one willing and consenting no injury is done. And if you should secretly disclose to the collator a hidden but true crime, on account of which the candidate would be deprived of the benefice, you would owe to restore nothing, since that would turn to the public good, provided the offence rendered the candidate unworthy or less worthy.

IV. QUESTION II. To what is he held who hinders a promise made from being fulfilled? ANSWER. If the promise be accepted, the loss is to be made good, because the promisee had a right to the thing promised him. If the promise be not accepted, and by counsel or persuasion you draw back the collator, you are held to nothing. He who by guile or fraud draws back a rich man from bestowing an alms upon a poor man is bound to make good the loss inflicted upon the poor man. If you should persuade a testator lying sick, who had destined a legacy to Sempronius, to institute him his heir, or rather to leave the legacy to yourself or to a friend, Sempronius being neglected, authors commonly teach that you neither sin nor are held to restitution; but I assert that you should never do it. An exception is the case in the Clementine On Privileges, where it is severely commanded to religious that they draw not testators back from bequeathing goods to mother churches. Let all who assist testators counsel them to distribute their legacies justly and prudently, the order of charity and of justice being preserved. He who without fraud or guile persuades someone not to confer an undue good upon Peter out of vehement hatred, is to me more probably bound to restitution. Since although inward hatred does not bring in this debt, it is nevertheless conjoined with an outward persuasion, which, though absolutely regarded it be innocent, in these circumstances becomes evil. This opinion nevertheless I submit to the judgment of others.

V. He who hinders goods from being applied to the treasury, which on account of some crime are wont to be applied after the judge's sentence, is held to restitution; but not before the sentence pronounced: since before the sentence is passed no one has a right to goods of this kind. He who hinders legacies left by a testator, that they should be distributed among the maidens of this or that city adorned with such prerogatives, from being distributed to them, and takes care that they be conferred upon others, sins and is held to restitution: because the maidens of such a city have a right to goods of this kind. What if a dispensation be obtained from a superior? Dispensations of this kind are commonly without just cause. In which case both he who asks and he who grants sin, and are liable to restitution. But if the cause of dispensing be just, there is no debt of restitution.

VI. He who hinders a collator from conferring an ecclesiastical benefice upon the worthier, is held to restitution, both he who hinders and the collator who knowingly deprives the worthier of the benefice. Which restitution is to be made both to the worthier man excluded and to the Church, as will be said more fully when the discourse shall be of benefices.

VII. QUESTION III. What is to be said of those who cooperate in another's loss? ANSWER. He who assents to a man already prepared to inflict an evil, all counsel and persuasion being removed, sins against charity, but not against justice: therefore he is immune from restitution, because in no way does he flow into the injury of another. That a cooperator therefore may be subject to restitution, his cooperation must flow in and be a cause. But if you should by counsel persuade one not prepared to steal or to injure another's right, then you are held to restitution. Nor does it matter that the executor would have been persuaded by another: because this does not take away that you are the cause of the loss. The same seems to be said of him who persuades one prepared to steal that he should execute the theft more quickly, when between the counsel and the execution there flows so much time that the executor could change his will. Read Vol. VII, Book I, dissertation 2, chapter 4, § 1.

VIII. QUESTION IV. When you doubt whether by any of the cooperations recounted in the two verses you have been the efficacious cause of the loss, are you held to restitution? ANSWER. You can doubt whether you have counselled, commanded, and so forth; or, being certain of the counsel, the command, and so forth, you doubt whether the evil followed; or you doubt whether your counsel, persuasion, and the like was the efficacious cause of the loss. The Salmanticenses, no distinction being made, absolutely deny that this doubter is liable to restitution, resting upon the axiom: the condition of the possessor is the better.

IX. But the question needs explication. If you doubt in the first way, whether you gave counsel, you are held to nothing: because no one is presumed evil unless it be proved. When, being certain of the counsel, command, mandate, and so forth, you doubt of the loss thence following, then in the degree of the doubt you are bound to compensate the loss. Since indeed, while it is certain that a cause of its own nature bringing loss has been posited, and it is doubtful whether the loss followed, then there is danger lest the loss have in fact followed. There is danger therefore that you have injured justice. Therefore you ought to withdraw yourself from this danger. When finally, being certain of the depraved counsel, mandate, and the like, and of the loss that followed, you doubt whether your counsel, mandate, and so forth was the efficacious cause of the loss, Molina, Bonacina, Lessius, Sánchez, and others assert that you are liable to restitution — some of the whole loss, others in proportion to the doubt. To this second opinion I incline. Since it does not seem equitable that he who doubts should be bound by the same burden as he who is certain of the loss inflicted. The circumstances nevertheless are to be regarded. Hence gather that I do not incline to the severer opinions, but to those which are plain by solid reason.

X. QUESTION V. He who by his own depraved example is the cause that others perpetrate evil, is he held to restitution? ANSWER. Many, seeing Sempronius stealing, laying waste another's vineyard, committing adultery, and the like, are moved by this example to commit similar evils: is Sempronius held to restitution? The common and true opinion denies it, because although the depraved example be an occasion to them, it is nevertheless not an inflowing cause. Further, only an evil cause flowing into the loss inflicted brings forth the debt of restitution. Sempronius alone sins, as regards this, against charity.

XI. QUESTION VI. What of those who by command, counsel, or consent flow into a neighbour's loss? ANSWER. Under command are comprehended all those who order an injustice to be done, for the executing of which another was not prepared. This command can be imposed tacitly or expressly. When by force of that mandate the loss follows, he who commands is always held to restitution. Tacitly this command can be imposed in various ways. What! says a master to his servants, or a friend to his friends: does none of you avenge my injury? He would do me the greatest favour who should kill my enemy. By these and like expressions a tacit mandate can be made. All the circumstances nevertheless are to be regarded before it be determined that anyone is liable to restitution by force of a tacit mandate.

XII. If the mandate, before the execution follows, has been retracted, and this has become known to the mandatary, the debt of restitution fails. But if it be revoked either in mind only or outwardly, when it does not reach the ears of the mandatary, he who commands is not freed from restitution. If the mandatary exceed the limits of the one commanding, in practice the one commanding is with difficulty freed from the compensation of the whole loss. Wherefore in the chapter He who commands concerning homicide, in the Sixth, it is decreed that he who commands a beating from which homicide follows is subject to irregularity, even though the one commanding did not intend the homicide. For in practice mandataries scarcely ever contain themselves within the prescribed limits. Wherefore those who command freely cast themselves into these iniquitous consequences. Therefore they are bound to make good all the evils which in fact follow from the mandate. If nevertheless one commanding should enjoin something lawful, from which no evil to follow can prudently be foreseen, then he would be free from restitution, even if an evil should follow.

XIII. Counsel, by which the counsellor with guile, fraud, and evil mind persuades, brings in the debt of restitution. Authors dispute whether a counsellor, the counsel being revoked, is liable to restitution, when he who was counselled has in fact committed the evil. To me the more probable opinion is that a counsellor who with a sincere mind and all industry revokes his counsel is free from restitution. A mandate and a counsel differ indeed; but when a counsellor strives with true and solid reasons to dissuade his client from the evil which he had counselled, and leaves nothing untried that he may obtain his wishes, then the evil proceeds from the client's malice alone. If evils befall mandataries, or those receiving counsel, at their own asking, both the one commanding and the counsellor are free from restitution, because it was in their power to reject either the mandate or the counsel. If nevertheless the one commanding were a lord or superior, then he would be held to restitution, because a superior's command induces a certain coercion. If anyone steal or kill in your name, no counsel or mandate having been received from you, you are not bound to restore or to compensate the evil that followed without your knowledge, although you should ratify the evil committed, because ratification can afford no influx into an evil already committed. But if the executor should be moved by your complacency and ratification to omit restitution, then you would be liable to restitution.

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.

XV. Flattery indicates those who by praises, encomiums, and applause, or by reproaches and mockeries, provoke and impel someone to commit an evil. You reproach a husband for tolerating his wife's adultery, for suffering the injury done him: he, stirred by your mockeries, kills his wife, the reviler, the offender. You are the efficacious cause of the evil committed. Therefore you are liable to restitution. Nor is it enough that you should reply that you did not do this with an evil mind, nor intend the vengeance or the homicide: because it is enough to have brought in the outward speech to the committing of the evil. Whether ignorance, inadvertence, and other circumstances may sometimes excuse, I leave to the judgment of prudent men.

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.

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

XIX. Those who are bound by the title of charity alone, even if they keep silence with an evil mind, are held to nothing. Because the debt of restitution supposes an injury of justice. These are not obliged in justice. Therefore there is no debt of restitution. The Salmanticenses with others defend that these are not held to restitution, even if they should accept money from a thief for keeping silence. Since, they say, if they can be silent without money, why not also with a price accepted? Is not this an excellent reason? He who accepts your price that he may be silent flows into the theft, and enters into an iniquitous bargain with you: therefore he is held to restitution.

XX. Servants who see strangers filching their master's goods are held to restitution if they keep silence and do not oppose according to their strength. Since by reason of their service they ought in justice to guard and defend their masters' goods from foreign invaders. Servants also who see goods entrusted to their own custody filched by domestic thieves, if they keep silence, if they do not oppose, if they do not disclose, are held. But if they see common things stolen, they sin against charity if they keep silence, but they are free from the burden of restitution, since they are not bound in justice to guard the aforesaid common things against domestic thieves. The circumstances, customs, and agreements nevertheless are to be regarded.

XXI. Keepers of fields, vineyards, meadows, and woods, hired at an agreed price by the lord that they should watch and guard the aforesaid goods from any invader whatsoever, are bound to make good the losses if they keep silence and do not resist according to their strength. The same is to be said of keepers hired by a prince, that they suffer not wares to be carried out or brought in without the customs being paid.

XXII. QUESTION VIII. What order is to be observed among cooperators in an unjust action, when they are held to restitution? ANSWER. When many concur to a theft, those first of all are bound to restore … … in whose hands the goods subsist, or the price of the same. Restitution having been made by these, the rest are free. When the goods do not subsist, because nothing was filched but only an evil inflicted, it is to be made good first by those who were the principals, and by the others in default of them. Those are called the principal cause who direct, who incite, and who animate others to inflict the loss. And those who by threats, guiles, and frauds induce others to commit an evil, ought to restore as principals. After the principal cause, nevertheless, the executors themselves of the theft are bound to make good the loss. These, however, would have an action against the principal cause, which is always bound to compensate the executors, if these should restore. When many secondary or principal causes equally concur, each is held according to the advantage which they carried off. But if one neglect to restore, then each is held in solidum, and the rest are always bound to compensate him who bore the whole burden of restitution. The principal causes and the executors failing or refusing to restore, there succeed in the debt of restitution the negative causes, who ought to restore in solidum, more or less according to the greater or lesser duty of hindering, regard always being had to that cause which is more strictly bound to hinder.

XXIII. QUESTION IX. How are all the causes recounted bound to restore in solidum? ANSWER. The discourse is of many causes executing the same theft or loss, not of many partakers of the same thing taken away by theft. For it is certain that you, having been invited to a supper made of things taken away by theft, are held only to the restitution of that part alone which you ate. Similarly, when many enter to lay waste a vineyard, no conspiracy having been made among them, but each ignorant of the other's design, and each of himself bringing in the loss, then each is bound to compensate the loss inflicted by himself, since he conferred no influx into the loss inflicted by the others. These things are beyond dispute.

XXIV. When many concur to the committing of the same evil, if one be the principal mover, he ought first and in solidum to restore. Thus princes and their counsellors are bound to make good the losses of war; captains and tribunes the losses of the soldiers, because these are the principal movers. Inferior soldiers, in default of the principals, ought to compensate those losses which they themselves immediately execute; when they concur to the same individual loss — say to the burning of the same ship or house, to the killing of the same man, to the electing of the same unworthy person — all and each are bound in solidum to make good the loss which they brought in by common conspiracy, as the common and more probable opinion teaches: since although physically each executes a part of the loss, morally nevertheless each flows into the whole loss. For by reason of mutual counsel and reciprocal conspiracy all constitute one moral cause of the whole loss. Therefore each is held in solidum.

XXV. QUESTION X. Whether from a shameful promise there arises an obligation of performing the thing promised? ANSWER. Sempronius, that he might induce a maiden to fornication, a wife to adultery, an assassin to homicide, promised a fixed wage. That before the execution the promise brings in no obligation, and is to be rescinded, all confess. It is disputed whether, the promise being fulfilled, the price promised is to be paid. The Salmanticenses affirm it, tract 13, chapter 1, point 6, no. 154, and assert that this is the common opinion of the Doctors.

XXVI. The opposite opinion is defended by Adrian, John Medina, Navarrus, Vigerius, Paul Comitolus, Henry of St. Ignatius, and the Continuator of Tournely. Since indeed the laws, both sacred and civil, decree that stipulations, agreements, and promises entered upon for a shameful cause have no force, and are to be held as void. Gregory IX in the chapter Pactiones established these things: According to lawful sanctions, an agreement shameful, or of a shameful or impossible thing, brings in no obligation either of right or of fact. The civil laws in the law Generaliter, 26, Digest, On Verbal Obligations, title 1, decree these things: Generally we know that shameful stipulations are of no moment. Again in the law Mercedem, the same title, On Contracts, these things are added: That actions are to be denied for a shameful cause, upon a stipulation interposed against good morals, is demonstrated by the authority of law. Finally the law Pacta, Code, On Agreements: That agreements which are made against the laws and constitutions, or against good morals, have no force, is of undoubted right. Many other things from either law I pass over.

XXVII. The laws recounted, since they are absolute, urge equally before and after the crime committed: and it is proved by reasons. For if after the evil committed the price is to be paid, the stipulation has force. But the laws declare that it has no force. What of this, that the Doctors themselves, defenders of the common opinion, teach that stipulations of this kind are to be rescinded? Therefore by their own confession they are of no moment. Besides, if the stipulation here has force after the deed, as those Doctors contend, it assuredly has it not from a new agreement or convention between the contracting parties, but from the agreement which preceded the deed. It is necessary therefore that those Doctors confess one or the other: either that this stipulation is valid both before and after the deed, or that it is null both before and after the deed.

XXVIII. Finally, does an obligation once altogether extinguished revive? All deny it. Therefore far less can an obligation which was null before the deed, and by every law natural, divine, and human is held null, revive. God and all laws punish more severely the depravity of a crime committed than of one to be committed. Therefore if on account of the shamefulness of a thing not yet done they take away the force of obligation from a stipulation, much more ought they to take it away on account of the iniquity of the thing done. Again, obligations which impel to evil and foster crimes ought not to be tolerated. But if stipulations and agreements of a wage to be paid for a crime to be committed were to be observed, the licence of sinning would range more freely, and an entrance would be opened to infinite crimes. Lastly, vows and oaths concerning a sin to be committed are by the common opinion null: therefore far more are human promises null, which surely bind less than vows and oaths made to God.

XXIX. The cited Doctors object. Two things are to be distinguished in a crime: one, the depravity of the action and the offence of God; the other, the pleasure, the delight, the entity of the action, the trouble, the danger to which the shameful person is exposed. The first cannot be venal. The second by its own nature and of itself is vendible. ANSWER. This distinction being laid down, the soul, an angel, the sacraments are vendible, inasmuch as they are beings. The aforesaid crimes do not fall under contract inasmuch as they are beings of a metaphysical precision, but as involved in their own conditions. The pleasures which are in crimes are wicked. Therefore if the crimes themselves are not venal, neither can the pleasures which accompany crimes be sold. Therefore the cited opinion of the Doctors is to be reckoned false.

XXX. QUESTION XI. What is to be said of a harlot's gain? ANSWER. That a harlot's gain may be retained, and ought to be paid, all commonly confess. Therefore the opinion hitherto defended is false, and the opinion of our adversaries true. I answer that a harlot can demand back and retain the price of her whoredom, not on account of any stipulation, not on account of consent to fornication, not on account of the pleasure, not on account of any danger or trouble, not finally because she can let out the use of her own body; but because the laws, which for the avoiding of greater evils permit harlotry, punish fornicators with this mulct, that they pay a wage to the harlot in penalty of the crime committed. I add that those laws are permissive. Whether before the divine tribunal they are always just, is not established for us. This is certain, that princes can permit lesser evils, that they may avoid greater. But hence it does not follow that subjects can use those same laws. Wherefore I would urge all harlots compunct with a sincere heart to distribute the gain of harlotry among the poor, and would grant to them, as to the poor, something more or less for their sustenance according to the diversity of circumstances.

XXXI. QUESTION XII. Whether maidens, wives, and honourable women receiving a price for chastity sold are bound to restore it? ANSWER. Fr. Leonard Lessius writes these things, Book II On Justice, chapter 14, doubt 8, no. 52: “And although the evil work for which he gave is not appraisable at a price inasmuch as it is evil, nevertheless inasmuch as it is delightful or useful to the one and detrimental to the other, it is appraised at a price among men. Therefore what has been received for it on this account is not to be restored, unless perhaps someone exceed the estimation; as if a harlot, who is accustomed to grant the use of herself for one gold piece, should extort fifty from some young man as the price. This, however, has no place in her who is reckoned honourable; as if some matron or daughter should accept a hundred gold pieces for the use of her body from one who was able to give: for he who was able to give could also RETAIN. SHE CAN VALUE HER OWN CHASTITY AT SO MUCH, AND AT MORE. For things which have no fixed price, and are not necessary to life, but are sought for the sake of pleasure, can be appraised at the seller's discretion, and, as Peter Navarra and others probably teach, at others' too.” Thus far he: which doctrine assuredly, like others of this kind, St. Francis de Sales did not commend, although he commended the works of the same author, which are indeed praiseworthy for many rightly handed down instructions. That women or girls of this kind can, justice alone being regarded, retain a gift spontaneously given by one who has the faculty of giving, I do not absolutely deny. Concerning these gifts, nevertheless, I inculcate that the same is to be done which St. Thomas hands down, II-II, q. 100, art. 6, reply 4, concerning a price simoniacally received: namely, that it is not to be rendered back to the guilty party himself, but to be laid out either upon the worship of God or upon the poor: both that the handle of sinning may be taken from women prone to avarice, and that no monument of past unchastity may remain, and that by the things wherein a man sins, by these he may be tormented, according to the saying of the Holy Ghost. To this so equitable an opinion no one can be repugnant, save perchance he who does not do penance, but feigns it.

XXXII. QUESTION XIII. Are harlots, whether public or secret, bound to restore the price received from a religious for a shameful union? ANSWER. I would not stir up such little questions, did I not find them agitated by others. Pellizarius, Manual of Regulars, tract 4, chapter 2, section 4; Malchardus, Vol. I, book 5, part 2, tract 1, document 1; de Lugo, disputation 3, section 3; John of the Cross, book 1, chapter 5, doubt 10, and others defend the negative opinion. When, they say, a religious obtains a faculty from his superior of disposing of the goods granted him for use, while he draws them off into shameful things, although in the mode of alienating he acts against the superior's will, nevertheless the alienation itself is valid. And to this alienation absolutely regarded the superior consents. These things are not so much to be refuted by arguments as to be lamented with bitter tears. No superiors can grant licence for paying a price for a shameful act. The alienation therefore is invalid. Therefore restitution is necessary.

XXXIII. QUESTION XIV. Whether one receiving a price for an unjust sentence to be passed ought to restore it? ANSWER. The positive laws detest and prohibit all donations to be made to judges for unjust sentences, to advocates for the unjust defence of clients, to witnesses for false testimony. The Salmanticenses, tract 13, chapter 1, point 7, no. 169, teach that donations of this kind, natural law being regarded, are valid. But this opinion is to me false, and to be rejected.

XXXIV. It is disputed whether by force of positive law prohibiting donations of this kind they ought to be restored. A twofold opinion is found, and each is reputed probable by the Salmanticenses. The former denies the debt of restitution, because the laws indicated oblige only in the exterior forum, say authors of this kind, but not in the interior forum. This opinion I reject as false and improbable. Since indeed the aforesaid laws, resting upon the law of nature, oblige in each forum. Let St. Augustine be heard upon this argument, who in Epistle 54 to Macedonius writes thus: But an advocate ought not therefore to sell a just judgment, or a witness true testimony, because an advocate sells just patronage and a jurist true counsel. For those bend themselves to the examination of either party, and these take their stand on one side. But since judgments and testimonies, which ought to be sold neither false nor true, are sold when iniquitous and false, assuredly money is much more wickedly taken, because it is also wickedly given, although by the willing. But he who gave for an unjust judgment would indeed wish to demand it back, did he not fear, or were he not ashamed, to have given it. … Nevertheless, if justice be more sincerely consulted, justice says to the advocate: Render what you received, when you stood against the truth, favoured iniquity, deceived the judge, oppressed a just cause, and conquered by falsehood.

XXXV. This testimony Fr. Leonard Lessius objects to himself, Book II On Justice, chapter 14, doubt 8, no. 55, in these words: “You will say: St. Augustine in the fifty-fourth epistle to Macedonius says that it is more wickedly that money is accepted for an unjust sentence than for a just one, for false testimony than for true. But money accepted for a just sentence is to be restored. Therefore also for an unjust one. So Soto.” But he adds: “I answer by denying the consequence. For it is not because a thing is more wicked that it therefore obliges more, or equally, to restitution. For this obligation does not follow the magnitude of the crime, but the loss given by the injury. But he who accepts for an unjust sentence inflicts no injury upon the giver, as does he who accepts for a just one. Now the former is more wicked than the latter: both because it is worse to pass an unjust sentence, to the passing of which he who accepts the money has already set his mind, on account of the injury which is done to the other party, than to accept money for a just sentence to be passed; and because (as Augustine there says) it is more wickedly given for an unjust one than for a just one, although it be given voluntarily and willingly. For he is speaking of a sentence to be passed. Add that Augustine in the same place signifies that this money, though more wickedly accepted, is not to be restored once the work is performed, since he says it was given by the willing. For to one willing no injury is done. It is otherwise if it be given for a just sentence, which is reckoned given under compulsion, from fear of an unjust sentence.”

XXXVI. If in explaining some article of faith a man should with this liberty, and with a most vain wrapping of distinctions, entangle and elude the opinions of the holy Fathers, it would be all over with the articles of faith. And because in explaining the commandments of morals the opinions of the Fathers are in fact adulterated with various cavils, therefore Christian theology has been in a deplorable manner relaxed and obscured by not a few casuists. The doctrine of St. Augustine is unshaken. Wherefore Vásquez and de Lugo, disputation 18, section 5, no. 57, confess that St. Augustine stands on our side; nor nevertheless do they themselves fear to defend an opinion disapproved by Augustine. The reason of our opinion is evident. A judge by force of his office is bound to pass sentence. Therefore he cannot receive a price. For a just sentence, someone will say, I grant. For an unjust one, I deny. Since he is compelled by force of his office to pass a just sentence, therefore he cannot receive a price for a just sentence to be passed, and if he receives it, he is bound to restore it. But he is not obliged to pronounce an unjust sentence, and therefore he can receive and retain a price for an unjust sentence to be passed. Would you have things yet more absurd? Because we set forth such paradoxes, which strike common sense, to be derided, some refute us. But we entreat them to prove that these are not paradoxes worthy of severe confutation. But let Marcus Tullius come forth into the midst, who in Book II of the Offices, chapter 21, wrote these things against the reproved opinion: But the chief point in the whole management of business and of a public office is that even the least suspicion of avarice be driven away. "Would that," said Gaius Pontius the Samnite, "fortune had kept me for those times, and that I had been born then, when the Romans began to accept gifts: I would not have suffered them to rule longer." Truly he would have had to wait many generations. For this evil has but lately invaded this commonwealth. And so I the more gladly suffer that Pontius lived rather then. … There is therefore no viler vice … than avarice, especially in princes and in those who govern the commonwealth. For to make merchandise of the commonwealth is not only shameful, but wicked and abominable.

XXXVII. QUESTION XV. When that which is restored does not reach the creditor's hands, is the debtor bound to restore anew? ANSWER. Many things hinder immediate restitution, which therefore must be made either through a confessor or through another person. If the intermediary person be designated by the creditor, or if he grant the debtor the faculty of choosing him, and the debtor in good faith choose a person reckoned worthy, it is certain that the thing perishes to the creditor, and that the debtor is immune from a new restitution. The same is to be said when the person is designated by the judge. It is disputed only when the debtor of himself chooses this person. Many defend that the thief is not liable to a new restitution after he has consigned the thing to be restored to a faithful and honest man, even if it perish.

XXXVIII. The opposite opinion is to me the more probable. Since indeed the nature and essence of restitution is to constitute the equality injured by unjust acceptance; and the creditor is always unwilling so long as he does not obtain his own thing or dispose of it, and the equality is restored. But here the equality is not restored unless the thing taken away return into the creditor's hand. The thief is the cause of the unhappy outcome. He, by taking away another's thing, exposed himself to these dangers.

XXXIX. If a possessor of good faith send a thing found by an honest man to its lord, and it perish, he is not liable to a new restitution. Since he is held neither from unjust acceptance nor from the thing received. But if the thing be owed from a contract of loan, of deposit, of pledge, and the like, authors distinguish. If the thing to be restored be the same in kind — as this garment, this horse, which you received on loan for use — and it be sent by an honest man, the thing perishes to the creditor, because it was his, and therefore it perishes to the lord. On the contrary, if the thing be not the same in kind, but in genus — as moneys, wheat, wine, which you received on loan — they perish to you, not to the creditor, because those things were yours. These things are common ground.

XL. QUESTION XVI. In what place, and at whose expense, ought restitution to be made? ANSWER. A possessor of good faith ought to restore in the place where the thing subsists. If the lord be absent, he is to be admonished, and at his expense the thing ought to be carried to him. But if this possessor of good faith has transferred the thing elsewhere, then he ought to send the thing to the lord at his own expense. On the contrary, a possessor of bad faith is bound to restore the thing in that place where the thing would have been, had it not been taken away, and at his own inconvenience. Restitution owed from a contract ought to be made where the contract was celebrated, unless it be otherwise appointed by the contracting parties. A loan is to be restored at the borrower's expense, since it turns to his advantage. On the contrary, a deposit, since it turns to the depositor's advantage, is to be demanded back at his expense.

MANY assert that only he who is the true Cause of the Damage is subject to restitution, without whom the damage would not have been. Innoc. cap. sicut dignum, extra de homic.; Hostiensis there; Altissiodorensis lib. IV. tract. de Poenit. cap. de Restit. quaest. 3; Rich. 4. dist. 15. art. 5. quaest. 4; Sylvest. V. Restit. 3. quaest. 6; Adrian. 4. quaest. 4. de Restit. §. De concurrentibus cum fure; Nau. man. cap. 7. num. 20; Caspensis disp. 1. sect. 9. §. 2; Bassaeus V. Restit. 3. num. 3. §. 2. Because otherwise the causes would be inefficacious.

THE OPPOSITE is held by Caietanus here, art. 7; Ioan. Medin. quaest. 7. de Restit.; Sotus lib. IV. de iustit. quaest. 7. art. 3; Valencia disp. 5. quaest. 6. puncto 3. The reason is, because they operate efficaciously. This was the view of D. Bonavent. in spec. animae, cap. 2, and Clatius cap. 1. §. Damnificatio. Therefore the Advocate who unjustly defends a Client is bound to Restitution — otherwise, one who would still unjustly covet the inheritance, which he would invade by others if he did not otherwise obtain it.

IT IS PROVED from the Holy Doctor. That is a true cause, posited, the effect is posited, as the Holy Doctor and others say. For if many wished to kill Peter, would not one who alone killed him be guilty of injustice, even if he would have to be killed by the others? See Valencia, and Caietan.

All agree that one who mutilates, kills, breaks limbs, or renders a man's body useless is held to make restitution of all the damages that follow from these deeds; and if the man cannot be restored by medical treatment, the wrongdoer is held to restore an equivalent in money. Thus the Saintly Doctor in the place cited and in Spec. animae cap. 1; D. Thom. art. 2. ad 1; Richardus in 4. dist. 15. art. 5. quaest. 2; Sylvest. V. restit. 3; Soto Lib. 4. de Iustitia, quaest. 6. art. 3; Valentia quaest. 6. puncto 5. §. 1; Tanner. disp. 4. quaest. 6. dub. 4; Carbo quaest. 15, and others commonly among these.

Wherefore if the man mutilated or killed was earning by his own industry, reparation must be made out of the goods of the assailant, even if the assailant is dead; and if the slain man was bound in justice to support certain persons, the assailant will be bound to provide for them, as Sotus loco cit. and Valentia loco cit. say against Scotus 4. dist. 15. quaest. 3 and Adrianus de Restit.

Sotus adds that somewhat less must be rendered, at the judgment of a good man, to the heirs of the mutilated or killed man than he himself would have earned, in view of the fact that it is less to have something in hope than in reality; for the man who was killed might have died for another cause, and the man mutilated might have been disabled in some other way. Wherefore Valentia admonishes that diligent consideration be given to age, health, etc., as Caspensis disp. 3. sect. 6 and others also observe.

From all this it appears that what Maior 4. dist. 15. quaest. 19. dub. ult. and Valentia loco cit. say is true, namely that although one who kills a nobleman sins more than one who kills a hired laborer who would have earned nothing by his labor or industry, yet the killer of such a hired laborer is bound to more.

The Saintly Doctor in Speculo animae, cap. 1. v. Damnificatio observes that not only the slayer, but also one who commands, helps, or counsels is held to restitution; yet not one who fails to prevent when he ought out of Charity; indeed he does not even sin mortally if for some reason he desists from removing the slayer — for instance, if he fears the slayer may break in against himself. But if he permits a man to be killed out of hatred, he is not held to restitution unless he himself is bound in justice to prevent it.

Next observe that damages can be exacted in conscience immediately to the point of equality, but not yet that penalty of restitution which is prescribed by law; for by means of that law he must await the judge's sentence, as we have in Leg. ex iudiciorum, ff. de accusationibus.

They dispute, however: whether compensation must also be made in money, or the like, for the injuries of killing, mutilation, etc.

The first opinion is negative. Nauarri in manuali, cap. 15. num. 21; Azorii, Ostiensis. Thus Caspensis loco cit. num. 51; Couar. lib. 2. var. cap. 10; Petrus Nauar. lib. 4. cap. 2. num. 80; Gomez lib. 3. variarum, cap. 6; Lessius Lib. 2. cap. 9. num. 141.

The second opinion is affirmative. Thus D. Thom. art. 2. ad 1; Scotus in 4. dist. 15. quaest. 3; Richardus ibi, art. 5. quaest. 2; Adrianus 4. de restit. quaest. ultim.; Maior in 4. eadem dist. quaest. 14; Sotus Lib. 4. de Iust. quaest. 6. art. 3; Valentia quaest. 6. puncto 5. §. 1; Carbo quaest. 12; Lopez p. p. quaest. 47; Angles 4. de restit.; Salon quaest. 62. art. 2.

To me the negative opinion appears truer. It is proved by the doctrine of D. Bonaventure. Restitution is a part of satisfaction, or a species of it, as S. Bonavent. 4. dist. 15. quaest. ultim. shows, et in spec. animae. But satisfaction must hold a proportion to the offense, and no one Satisfies unless he Restitutes as much as he took away. From this it follows that Satisfaction and Restitution must be made from proportionate goods; but money cannot be made proportionate to the good of a life taken away: Therefore.

This is the doctrine of S. Bonaventure in 3. dist. 20. quaest. 6 et in 4. dist. 15. part. 2. quaest. cit. It rests, moreover, upon the Laws; for by the Lege finali, ff. de iis, qui deiecit. vel effud. and the L. Liber homo, ff. ad Legem Aquiliam, and the L. ex hac, ff. si quadrupes pauperiem fecisse dicatur, afficitur, it is laid down that a free man cannot be valued at any price; and that a free body receives no estimation, as is had in the L. citata, L. homo, et L. ex hac, where it is added that nothing can be demanded for a free man even if he is killed.

Valentia answers that the Laws conclude only that this is true from the nature of the thing; yet if the injured man for a reasonable cause is content, satisfaction can be made to his very life by money.

But it is beside the point to call that a restitution which is made with things unfit for compensation — e.g. to restore reputation with money, as Sylvester noted V. Detractio, quaest. 4.

Valentia answers with D. Thomas ad 2. that when restitution cannot be made in the same genus, it can be made in another.

But he does not answer the point, because although restitution could be made in diverse kinds — say, the restitution of a field through a price — still it cannot be made except according to a reasonable estimation of things, as Valentia himself says. But there are many things that cannot be estimated by other things: the soul by money, or reputation by gold; for it is of a higher order, incomparable, as it is said Proverb. 22: Melius est bonum nomen, quam divitiae multae — as I shall show in the dub. sequenti.

Valentia objects first, and Tannerus, from Exodi 21: If he who is struck rises again and walks abroad, he who struck him shall be quit, yet so that he make restitution of his charges and the physicians' fees. By this law it is enacted that if the man struck has not recovered, the assailant must make greater restitution — clearly even for death or deformity.

It is answered that the same place sets forth what penalty is owed if the man struck dies: he shall die the death. This is confirmed, for further on, when it speaks of the death imposed on a goring ox, it declares: But if a price be laid upon him, he shall give for his soul whatever is demanded. But if the owner of the ox was aware beforehand of that vice, he himself shall be killed, since according to the precept he did not confine it.

Scotus and Tannerus object second that one who kills another's Ox or Dog must make some restitution for that Ox or Dog killed. Therefore much more must one who deprives a Man of life or health make some restitution for this very thing. And not to notice this (say Scotus, Tannerus, and Adrianus) is foolish.

But the comparison is absurd to me; for an Ox and a Dog are purchasable at a price, nor will any owner of a Dog receive money for the injury of the Dog's death insofar as it was his owner's — but only for the estimation of the Dog and Ox for use. Moreover, satisfactions are exacted from the slayer because he did not fear the Lord of the animal, and the injuries of the world bring contempt upon that contemning slayer.

That reputation is a good having marketable value, the taking away of which obliges in justice to restitution, is certain. For reputation is good estimation among others, of which Proverb. 22: Melius est nomen bonum, quam divitiae multae. From this S. Bonaventure p. p. Centil. sect. 13 deduces that the detractor is held under greater obligation to Restitution than the thief, which Valentia thereupon noted disp. 5. quaest. 6. puncto 5.

Therefore the detractor is held to restore reputation, three conditions concurring. The first is that the reputation have been taken away — for sometimes reputation is not removed by a saying, either because it is not believed, or because that sin does not blacken a person of that rank, as if you say of a knight: He wounded another man. The second condition is that the reputation have been taken away unjustly. The third, that the defamed man have not redeemed his stolen reputation. Thus they report from the common teaching: Soto Lib. 4. de Iustitia, quaest. 6. art. 3, Valentia disp. 5. quaest. 6. puncto 5, Turrianus disp. 53. dub. 3, Caspensis disp. 10. sect. 5.

I assert, therefore, first, that the unjust detractor is held to restore reputation, even with the loss of his own reputation, though not of his life, even by saying (if need be) that he lied. Thus D. Thom. 2. 2. quaest. 62. art. 2. ad 2, Caietanus ibi, Sotus Lib. 4. de Iustitia, quaest. 6. art. 3, Petrus Navar. Lib. 2. de restit. cap. 4. disput. 5. num. 375, Michael Salonius 2. 2. quaest. 62. art. 2. controu. 13, Navar. in manuali Latino, cap. 18. num. 45, Rodriquez 2. part. summae, cap. 45, Lopez prima parte, instruct. cap. 16, Sayrus Lib. 11. cap. 3. num. 21, Filliucius Tom. 2. tract. 32. cap. 9. num. 145, Malder. de Iust. tract. 7. cap. 2. dub. 9. fol. 554, et all the Doctors commonly, as in Valentia loco cit. Fagundez in octavum praeceptum Decal. cap. 15, Tannerum disp. 4. quaest. 6. dub. 4, Bassaeum V. Detractio, 2. num. 4.

Some add a little exception: unless there be great inequality — as if the defamed man be of low condition, but the defamer of great dignity, and he suffer greater detriment by saying he lied. Thus Sotus and Valentia, although Nauarrus doubts of this: for one is not held to make greater restitution than what he took away. Whence it comes about that he is not held to restore reputation with the loss of his own life; for although reputation is a kind of civil death, as Anselmo teaches Lib. de simil. cap. 147 as cited by D. Bonaventure in Pharetra Lib. 3. cap. 3. §. De Detractione, still it is not the proper taking away of life, but of a good inferior to life itself, namely reputation, which outweighs riches, according to Proverb. 22; and accordingly it binds more to restitution than the taking away of an eye, as the Saintly Doctor again enjoins in speculo animae, cap. 1. Most follow this doctrine, as in Fagundez cap. 15 et Dianam part. 2. Tract. 5. resol. 29 et 30.

There is, moreover, a question there in Diana: whether one who falsely defamed someone is held, if need be, to swear that he spoke falsely. They answer affirmatively: Caietanus and Aragon 2. 2. quaest. 62. artic. 2, where also Sylvius quaestione 22. tractat. 32. cap. 20. num. 245, Turrianus disp. 52. dub. 1, Salon de Iust. tom. 1. quaest. 62. art. 2. controv. 3, Carbo de restit. quaest. 18, Villalob. in summa, Tom. 2. tract. 11. diff. 37, Tanner. 2. 2. disp. 4. quaest. 6. dub. 6. num. 141, Diana ibi, Fagundez Lib. 8. cap. 15, Navar. cap. 18. num. 45, Pet. Navar. Lib. 2. cap. 4. num. 137, Sotos de Iust. Lib. 4. quaest. 6. art. 3, Faustus in speculo, disp. 21. quaest. 21, Bassaeus num. 9. Nay, they add — Molina tom. 5. disp. 41, Ioan. de la Cruz in Direct. pract. 1. punct. 7. art. 2. dub. 5, Soto, Aragon, and Salon — that he must, if need be, even bring witnesses.

I WONDER, however, that the Doctors so crowd headlong into binding consciences; for, as Faventinus observes in 4. dist. 15. quaest. 3. disp. 53. cap. 1. num. 32, the ancient Theologians — such as S. Bonaventure in the places adduced and elsewhere, Alensis part. 2. quaest. 129. memb. 6, D. Thom. quaest. 62. art. 2. ad 2, Scotus loco cit. — require only a simple retraction. But the modern Zealots superadd a most heavy burden, which perhaps they themselves do not touch with a finger.

The Doctors bring forward a certain SMOOTH manner of restoring reputation. For since to say one lied is an arduous act, they teach that the reputation is to be restored by praising the defamed man before those who had heard the detraction. Thus Caietanus 2. 2. quaest. 62. art. 2, Soto de Iustitia, lib. 4. quaest. 9. art. 3. ad 4, Villalob. in summa, Tom. 2. tract. 11. diff. 37. num. 4, Tannerus 2. 2. disp. 4. quaest. 6. dub. 4. num. 143, Valentia quaest. 4. puncto 5 and quaest. 17. puncto 2, Fagundez in octavum praeceptum, Lib. 8. cap. 15. num. 3, Lessius Lib. 2. cap. 11. dub. 10, Aragon. 2. 2. quaest. 62. art. 2, Faustus in speculo confess. disp. 21. quaest. 74. num. 6, Diana loco cit. Whatever they may bring to the contrary: Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 7, Navar. lib. 2. cap. 4. num. 370, Faber n. 46, Sylvius 2. 2. quaest. 62. art. 2. quaeritur 22, Fillucius Tom. 2. tract. 31. cap. 10. num. 246.

IT IS ASKED second: whether the defamer, not being able to restore the reputation, can, and ought, to make satisfaction with money.

They AFFIRM that he is held: Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 7, Filliuc. Tom. 2. tract. 32. cap. 10. n. 239, Turrianus 1. 2. tomo 2. disp. 53. dub. 7, Faber in 4. disp. 53. cap. 4. num. 122, Malderus 2. 2. tract. 7. cap. 7. dub. 8, Navarrus cap. 17. num. 19, Bannes 2. 2. quaest. 62. art. 2, Sylvest. verbo Detractio, quaest. 4, Navar. lib. 2. cap 4. num. 416, Lessius Lib. 2. cap. 11. disp. 11, and others as in Bassaeum num. 7.

OTHERS, however, as in Diana resol. 50 citata, propose with probability that it can be done. Thus Villalob. Tom. 2. tract. 11. diffic. 39, Sotos de Iust. Lib. 4. quaest. 6. art. 2, Aragon 2. 2. quaest. 62. art. 2, Valentia disp. 5. quaest. 6. puncto 5, Couar. lib. 1. variar. cap. 2. num. 8, Molina tract. 4. disput. 25, Sà V. Infamia, num. 7, Sylvius 1. 2. quaestio 62. art. 2. Quaeritur 22, post Rebell. — Sotum, Richardum, Adrianum, Caietanum, and others as in Fagundez Lib 8. cap. 14. num. 11, asserting also Couar. reg. peccatum, p. p. num. 6 et Lib. 1. var. resol. cap. 2. num. 8, Cordubam quaest. 33. art. 2, Lopez p. p. Instruct. cap. 116, Salonium 2. 2. quaest. 62. art. 2. controv. 13, Rodriquez 2. part. summa, cap. 45, Rebell. Lib. 2. quaest. 10, the Gloss on cap. Ecclesia sanctae Mariae extra, ut lite pendente nihil innovetur, Malderum de Iust. tract. 7. cap. 2. de restit. famae, dub. 8, Tannerum disp. cit. num. 150, and others adduced above. Add Bassaeum num. 7, who says it can be done in equity if the defamer is poor.

The OPINION of the Seraphic Doctor, in my judgment, is that this compensation cannot be made. Thus the authorities cited, to whom add Caspensem disp. 10. sect. 5. num. 37, and Tanner judges it probable.

The rationale of D. Bonaventure, in nearly all the places cited and ad cap. 10. Ecclesiast., is this: Restitution is an act of Justice, reducing to equality according to commutation through compensation of what was taken away; but money, or other goods of fortune, are not proportionate to compensating reputation: Therefore. The minor is proved by Proverb. 22, Melius est nomen bonum, quam divitiae multae, and Ecclesiasticus 41, Curam habe de bono nomine: hoc enim tibi magis permanebit, quam mille thesauri pretiosi. The authors of our opinion use this rationale, from which it also follows that, conversely, one is not held to restore with goods of a higher order of life. Thus it is laid down in cap. offi. II., de poenit. et remiss, and the Doctors commonly cite it as in Fagundez in octavum Praeceptum Lib. 8. cap. 13 and Diana part. 2. Tract. 3. resol. 30 — even if the defamed man is a noble defamed by a VILE man. The reason has already been given. IT WILL BE ASKED third: whether one who, without just cause, makes known the hidden crime of someone to one or two prudent men whom he knows will not spread it about, sins mortally.

YOU WILL ASK third: whether one who, without just cause, makes known the hidden crime of someone to one or two prudent men whom he knows will not spread it about, sins mortally.

They answer AFFIRMATIVELY: Turrianus 2. 2. Tom. 2. disp. 53. dub. 8, Sotus de Iust. Lib. 7. quaest. 10. art. 2, Molina de Iust. tract. 4. disp. 29, Lessius Lib. 2. cap. 11. dub. 11. num. 70, Bannes 2. 2. quaest. 62. art. 2, Azor. Tom. 1. Lib. 6. cap. 9, Fillincius Tom. 2. tract. 40. cap. 4. num. 91, Suarez tom. 4. disp. 34. sect. 1, Villalob. Tom. 2. tract. 11. diffic. 36, Valentia tomo 3. disp. 5. quaest. 17. puncto 2, Malderus 2. 2. tract. 7. cap. 1. dub. 4, Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 3, Ioan. de la Cruz part. 8. quaest. 2. art. 2. dub. 3, Salonius 2. 2. quaest. 62. art. 2, who state this opinion to be common among the more recent Thomists; Fagundez also defends it in octavum praeceptum, Lib. 8. cap. 2. num. 7, and Bassaeus V. Detractio 1. num. 11.

Caietanus teaches the CONTRARY opinion, 1. 2. quaest. 62. art. 2, Navar. de restit. Lib. 2. cap. 4. num. 234, Graffius lib. 2. cap 137, and others; and many of the adversaries hold this opinion probable, as Tanner. 2. 2. disput. 4. quaest. 8 dub. 7. num. 138, Ioan. de la Cruz, and others, with whom Diana subscribes, part. 2. Tract. 5. resol. 23.

The OPINION of D. Bonaventure is that this man sins mortally. His rationale, which the Moderns use as in Diana and Fagundez, is that reputation is blackened even before one or two. Wherefore Jesus Christ in Matth. 18 grants that one or two be called to correct someone when the obstinate man refuses solitary correction; otherwise he commands it to be done inter te, et ipsum solum. For one man could be harming, even if prudent, and of the sort Christ desires to help in reproving the fallen. For he wills that suitable men be chosen to raise up the fallen; and indeed reputation is often more harmed if it is said to one weighty person than if to many of the common people; but especially if the defamed man depended upon him. Thus the Saintly Doctor defines this question at those words of Ecclesiasticus 10, Si mordeat serpens in silentio, nihil eo minus habet, qui occulte detrahit, from which he elicits a new argument; for the striking is deadly even when secret before one whom he defames, for he compares this to the striking of a venomous serpent.

They OBJECT that the prudent man would not reveal it. It is answered, as I said, that it makes no difference. Next, who made you the guarantor of this?

ANOTHER doubt arises: whether the detractor is held to restitution of damages in the goods of the man's household, and in other things, lost on account of his ruined reputation.

Philip, a Catholic, placed poison in his garden to kill harmful animals. Sometimes he had found a cat or even a dog killed by the poison in the garden, when the thought occurred to him: “Would that this valuable dog of my neighbor Caius were killed in this way, for Caius has often been troublesome to me, and not rarely have I found his dog entering my garden.” Therefore, led by the hope of killing the dog of Caius, which is descended from the breed called Saint Bernard, he placed a larger quantity of poison, and the next morning found that unfortunate dog dead in a corner of the garden. After it was buried, his conscience pricked him concerning restitution to be made. Hence it is asked:

1. Can the intention make an external act unjust?

2. What is an occasional cause and an accidental cause of damage?

3. When is one who posits the cause of another’s damage excused from making restitution, even if the damage was foreseen or desired?

4. What is to be said of the case?

1. Can the intention make an action unjust which otherwise is not unjust? Some theologians, with Lugo, assert that it can, but the common opinion is against them. For the intention with which an action is done does not alter the nature of its influence on the effect produced, and whether an act is unjust or not, depends on this influence.¹

1 St. Alphonsus, book iii, no. 584.

2. What is an occasional, and an accidental cause of damage?

An occasion is that which, being put, an effect follows from some other cause. Thus if A murder B, and C is taken up on suspicion, A is the occasion of C’s arrest. An accidental cause is that from which the effect was not probable, though possible, as if A digs a trench where few people pass, but B, a blind man, passes that way, falls into the trench, and is killed; A is the accidental cause of B’s death.

3. When is one who puts the cause of another’s damage excused from making restitution, even though the damage was foreseen and desired? Besides theological fault, it is necessary that the action of him who is to be obliged to make restitution be the efficient cause of the damage, and that it be unjust. For unjust actions alone impose the obligation of making restitution, and nobody is bound to make restitution for damage which he did not cause.

4. The case. Philip poisoned his neighbor’s dog out of spite. He certainly committed a grave sin against charity. But as he put the poison in his own garden, into which his neighbor’s dog sometimes strayed, his action was not the efficient cause, but only the accidental cause of its death. He may therefore be excused from the obligation of making restitution, according to the better opinion.

Titia, a Protestant, asked Paul the priest to receive her into the Catholic Church. Paul, however, found that she was very well instructed, and that the sole difficulty she felt was whether she was bound to disclose to her husband the truth concerning the paternity of her only daughter. For she knew with certainty that the daughter was not her husband’s, although he believed her to be his, but was born of adultery. It is very probable that, on account of her age, Titia will have no other offspring, in which case the only daughter will succeed to the property of her mother and to at least a large part of her husband’s property. Hence it is asked:

1. By what right do children succeed to the property of their parents?

2. To whom, by whom, and what kind of restitution is to be made on account of adultery?

3. What is to be said of the case?

1. By what right do children succeed to the property of their parents?

According to the common opinion, children have a natural right to succeed to the property of their parents, though this right may be determined and modified by positive law, or by the will of the parents, and even be altogether taken away for good reason.¹

1 Lehmkuhl, vol. i, no. 1141.

2. To whom, by whom, and what restitution is due for adultery?

Adulterers are bound jointly and severally to make restitution for all the damage which follows to others from the adultery on account of the illegitimate child being supposed to be legitimate. This, however, supposes that it is known for certain that a child is illegitimate, and this can seldom happen if the husband is living maritally with his wife. If he is not living with her, both he and others will know that the child is illegitimate, and so there will be no damage done which has to be repaired; for the merely personal injury which adultery inflicts on the adulterer’s consort is irreparable.

3. The case. Titia is not bound to make known her sin to her husband, and she should not do it. More harm than good would come of it. The case says that she is certain that her child is illegitimate, though her husband thinks it is his. On this hypothesis she should make up, out of her own property, the damage which her husband’s property incurs on account of his treating the child as his, unless he does this out of affection for the child, and not precisely because it is his. In practice, the illegitimacy will either be doubtful, and then Titia will be strictly bound to nothing, or her husband will know it, and then whatever he spends on the child will be given to it knowingly, and no restitution will be due to him, or to others, for this.¹

1 St. Alphonsus, book iii, no. 651.

Mr. A. is a dealer in works of art and antiques. Once a year, or oftener, he makes a business trip to Europe, to purchase a new supply of goods. He is an expert in the business, and knows to a nicety what an article of this kind is worth, and what price it will bring in the American market. Now, it often happens that Mr. A., in order to purchase some article at a bargain, conceals its true value from the owner, often insisting that it has very little or no value, and thus succeeds in purchasing for a trifle, pieces that he knows are worth a great deal, and which he afterward disposes of for many times the price he paid for them. In this way he is making considerable money, but sometimes has misgivings about his methods of making it. What judgment, from the view-point of good morals, are we to form of Mr. A.'s business methods?

Mr. A. is certainly bound to restitution, provided his conduct in the purchase of goods is really deceiving and unjust. Whether his conduct is really such in each and every instance, will appear from the following considerations, as also the extent of his obligation to make restitution.

1. Mr. A. conceals from the owner of the piece of furniture or art its true value, which it possesses by reason of its age or workmanship, etc. He simply remains silent about it. He is careful to drop no remark that might arouse suspicions in the owner as to its real worth. Now we ask, Is Mr. A. bound in conscience, in every instance, to enlighten the owner of a work of art as to its real value? Fr. Lehmkuhl (I. 1120) has this to say on the subject: “An agreed price

... may be admitted for things found among dealers in old goods, provided the proceeding is not deceitful and fraudulent. Thus, if a valuable thing is discovered among worthless objects, it must be considered whether the buyer’s knowledge is exceptional, or whether those who commonly see that thing regard it as valuable, so that it is rather the ignorance of the seller or of a few unskilled persons that is exceptional. If the latter obtains, the very low price is not regarded as just; if the former, it is not regarded as unjust. Hence it is readily admitted that, if I discover old books to be of great value, I may obtain them for myself at a lower price, provided I do not act deceitfully.” That is to say, if the purchaser's knowledge, in this particular business, is altogether exceptional, he may profit by it. If the purchaser's knowledge is not exceptional, but the ignorance of the owner of the work of art, etc., is quite unusual, then the purchaser may not profit by his knowledge, because what he profits by, then, is in reality not his own knowledge, but his neighbor's exceptional ignorance.

This is also the view of Fr. Noldin, S.J., professor of moral theology in the University of Innsbruck. Dealing with the same case, which we give above, he says: “If one of the contracting parties knows the true value of the thing and the other is ignorant of it, the following distinction must be made: the sale is unjust if the true value of the thing is easily known by all experts; but the sale is just when the true value of the thing is discovered only by the buyer because of his exceptional expertise.” And he gives the reason as follows: “The reason for the first is that the ordinary price, which is commonly determined by experts, is greater. The reason for the second is that the thing is not commonly valued more highly” (The. Mor. II., n. 589).

If Mr. A., therefore, ob singularem ejus peritiam, being an expert, alone knows the value of the object, and he leaves the owner of it in ignorance of its real value, and thus succeeds in buying it for little or nothing, only to sell it later on for a very handsome price, he does not commit any injustice against the owner. Because, under these circumstances, the object has little or no value for the owner, since the value put upon it by those versed in such matters is very small. Mr. A. is not responsible for the ignorance of the owner. He did not deceive the owner into offering the object for avery small price, and can not be considered, therefore, the causa efficax of the lucrum cessans, which the owner might have enjoyed if he had known the article's true value. Therefore, Mr. A. is not bound to restitution for this part of his conduct.

2. But how stands the case with regard to the rest of Mr. A.'s business methods? Mr. A. not only conceals the true value of the goods he intends purchasing, by observing a profound silence, but he positively contributes to lead the owner into error, in order to profit by it. Can we also, in this case, maintain that Mr. A.'s conduct is not a causa efficax damni, and, therefore, does not create an obligation to restore? Even here we can excuse Mr. A. from the obligation of restitution if what he did amounts to nothing more than an effort, common to all barter, to purchase goods as cheaply as possible. That is called a trick of trade, and in itself does not constitute an act of injustice, even though a less experienced seller might sometimes be induced by it to sell an article cheaper that he would otherwise have sold it, provided the price paid may still be considered a justum pretium.

St. Alphonsus says: “Hence it must also be noted that credence is not commonly given to the falsehoods of sellers when it is sufficiently known that these are ordinary stratagems; and therefore they are not regularly bound to restitution on that account, as the Salmanticenses and others teach. I said ‘regularly,’ because if a seller should at some time certainly perceive that the buyer believes his falsehoods and therefore buys at a higher price, then indeed he is not excused from injustice” (Theol. Mor. iv., n. 805).

What the Holy Doctor says here of the seller who by false exaggerations endeavors to deceive the purchaser, and thus receive a higher price for his goods, we may apply to the case of the purchaser who, by false representations, induces the owner of a work of art, for instance, to part with it at a price far below the lowest pretium justum. In this case Mr. A. can scarcely be excused from the obligation of making restitution. By false and unjust representations, he procures an article at a price far below any actual value it possesses. His profit can not be ascribed, in this case, to any exceptional knowledge he possesses, but only to his mendacious representations. He is, in fact, positively cheating his neighbor. “The reason is that the buyer, as is now plain in itself, is no less bound than the seller to observe commutative justice in a contract; therefore, just as the seller cannot with a safe conscience accept more than the just price demands, so the buyer cannot give less than the limits of the just price demand” (Elbel. vi., n. 179).

Titius, a traveling salesman, is more or less intimately acquainted with a number of conductors on the several railroads over which he travels on his business trips. Now, whenever he rides with one of these conductors, he does not pay the usual fare for the distance he travels, but instead he hands the conductor a dollar bill, which is much less than the fare, for which the conductor gives him no receipt, in order not to be obliged to turn it in to the company, but to keep it for himself. In this way Titius has defrauded the several railroads in the last few years, to the extent of several hundreds of dollars.

Now, it is asked:

1. What constitutes materia granris, when stealing from a corporation?

2. When do small thefts coalesce, and create a grave obligation to restore?

3. Did Titius commit a mortal sin from the start, or only after he had, de facto, taken a considerable sum?

4. Was he also responsible for what the conductors stole?

1. The good of society at large, as well as the good of the individual, require that the members of society shall enjoy complete security in the possession of their earthly goods. Unless peace and concord reign among the individual members of a state, civilized life would become impossible. But the peace and concord required to make life tolerable would be impossible were the individual members of society free to steal from one another. And all human society would fail of its purpose were property rights not inviolable, because the greatest if not the only inducement held out by society to its members to promote industry and to encourage sustained labor and effort is precisely the security that the state guarantees to its citizens in the possession of the fruits of their labor.

The stealing, therefore, from a private individual of a sum sufficient to jeopardize the peace and concord that should reign among private members of society in the possession of their property, and which would therefore cause grievous injury to the individual, will constitute a materia gravis, and be forbidden under pain of mortal sin.

Now, although the amount stolen from very rich persons and from great corporations may not do the said persons or corporations a grave damage, and therefore might seem to be a venial sin only, nevertheless the security of property, which must necessarily obtain in every civilized state, requires that the stealing of a considerable sum, even from a corporation, shall constitute a grave transgression. For if the stealing of a considerable sum from very rich persons or from large corporations were only a minor misdemeanor anda venial sin, these thefts would multiply rapidly, as, for instance, the adulteration of goods, the falsification of weights and measures, the defrauding of insurance companies, railroad corporations, State treasuries, etc., and thus incalculable injury would be done to society at large by destroying the confidence and trust and good faith on which commerce and trade and business enterprise of every kind depend. An amount must be fixed, therefore, to exceed which will be always and in all cases a grave transgression and a mortal sin, no matter from whom it is stolen, because a grave injury is thereby done to the security of the State and the interests of its citizens.

To fix this amount in dollars and cents is one of the difficult tasks of moralists. To say, in a general way, that whenever the amount stolen, although not inflicting a serious injury on the individual owners of, say, a railroad, still is sufficient to place in jeopardy the peaceful possession of property and render the State insecure, it is a materia gravis and a mortal sin, does not help much to a solution of the difficulty. For when we come to estimate in money the amount of damage that constitutes a materia gravis, we discover an ingens auctorum dissensio. The authorities on this matter are agreed that when the sum stolen belonged to a number of owners, all constituting one moral body, as, for example, a railroad company, the sum must be absolute gravis, that is, the sum taken must not necessarily inflict a grievous injury on the individual holders of stock in any particular company directly, but only on the State directly by rendering property insecure, and through the State indirectly on the stockholders.

But what the materia gravis amounts to, when estimated in money, is difficult to determine with precision. One reason for this difficulty is the fluctuating value of money, or the varying purchasing power of money throughout any given period of time, as is apparent from the history of money in the United States and Europe for the last century. It is estimated by skilful economists that the purchasing power of money has suffered a decline of from 30 to 40 per cent. in the last one hundred years. Another reason for this same difficulty is the difference in purchasing value of money in different countries at the same time. Thus the same amount of money will purchase less in the United States than it will in Europe, as American tourists know to their comfort. Thus the estimates given by moralists, as to what constitutes materia gravis in this matter, depend largely on the time and the country in which they live. Father Konings, C.SS.R., who understood American conditions well, thinks that $10 constitutes a materia gravis when taken from very rich persons or great corporations. Father Tanquerey, S.S, thinks that $7 or $8 is a materia gravis. Fathers Sabetti, S.J., and Lehmkuhl, S.J., think that $5 is a materia gravis. Palmieri, S.J., thinks that even for Europe 100 francs, or over $19, is required to constitute a materia gravis. His words are: “I have heard other learned men who, because the value of money has greatly diminished day by day, would now have an absolutely grave amount be one that equals approximately one hundred francs; with them we agree without difficulty.” (Ball. Pal., vol. I, n. 607.)

From this opinion of Palmieri Father Genicot, S.J., dissents, and thinks that Palmieri exaggerates the decline in the purchasing power of money, and prefers to adhere to the generally accepted opinion of contemporaneous writers. We are inclined to think that Father Konings' opinion is just and reasonable, and that it is safe to say that $10 constitutes a materia gravis when stealing from a large corporation, like a railroad company.

2. Small sums stolen by the same person, but at different times, may coalesce, either by reason of the thief's intention, from the very start, of stealing small sums until he acquires a large amount, or else, where there is no intention from the start of repeating the small thefts, but still they are repeated, as occasion offers, then the short space of time intervening between one small theft and another will bring them so closely together as to make them really one moral act, and that grievously injurious. If a sufficiently long interval elapse between one small theft and another, then the victim of them has ample time to recover from the injury done by one before another is inflicted, and therefore is riot in the long run injured grievously. What this time limit in which these small thefts must follow one another in order to coalesce is, theologians are not agreed. Roncaglia thinks that these small thefts should not be separated by more than two months in order to coalesce; if they occur at intervals longer than two months, they can not be said to coalesce and to inflict a grievous injury. St. Alphonsus indorses Roncaglia's opinion. Sometimes an interval of one month, or even less, is sufficient to prevent very small thefts from coalescing. This is the opinion of Ball. Palmieri (n. 78).

A distinction must be made, however, between small thefts committed against individuals and small thefts committed against large corporations. When small thefts are committed against a corporation, they must amount to a sum half again as large as required to constitute a mortal sin if taken at one time from a corporation. Because a corporation is less injured by ten small thefts, done at considerable intervals of time, even though they amount to a considerable sum, than by the single theft of a considerable sum. Therefore, if $10 constitute a materia gravis if taken at one time from a corporation, $15 will be required to constitute a materia gravis if taken in small sums and at different times.

3. Now, in regard to Titius, there seems to have been an intention from the very start of stealing a considerable sum. If there was, then he committed a mortal sin when he first formed this intention, because the intention was graviter peccaminosa. A grave obligation to restore, however, did not arise for Titius until he had accumulated about $15. Although Titius, over and above the mortal sin he committed, when he formed the intention to defraud the railroad company, committed a new mortal sin each time that he stole a small sum, because he put into effective execution an intention that was mortally sinful, still in ordine ad confessionem he commits one mortal sin by all these small thefts.

4. Titius is also guilty of the sin of co-operation, being a party to the thefts that the conductors committed. He would be bound also, ex hoc capite, to make restitution of the sum the conductors stole, but only secundo loco. Practically speaking, however, Titius will not only be quite ignorant of his duty in this respect, but it would be difficult to convince him of it, and still more difficult to persuade him to perform it. Therefore, it will be more prudent for the confessor to say nothing about this latter obligation, and simply to urge Titius to make restitution to the railroad company for what he himself took, leaving him in good faith as regards the rest.

A fire broke out in a village which partly destroyed a certain house of Mr. N. N. The owner was insured, but nevertheless suffered a loss of about $4,000, which was all the harder for him to bear, as he, after toiling and laboring throughout the entire year, at its end considered himself fortunate if he was not in debt, there being no capital or savings. How the fire started, whether caused by negligence or by some malicious hand, could not be ascertained. Sometime had elapsed when there came to the confessional of Father Sempronius a woman who confessed having been the incendiary, in about this fashion: "Your Reverence, I was the incendiary! I set fire to the property, and did it out of revenge because the farmer had given me notice to leave. I regretted it immediately, and even attempted to put out the flames, but it was too late. I know that I have committed a great sin. It gives me no peace, day or night, and I am ready and willing to make restitution as far as lies in my power. Of course I can not make up the loss entirely, as I am only a poor servant-girl. I have saved so far $400, this I will relinquish no matter how hard it is to do so. But, Reverend Father! what shall I have to do with my future savings? I can save yearly eighty or ninety dollars. If I could keep this I should have a prospect of marrying. If, however, I must sacrifice all my earnings, I can never think of marrying, and shall eventually become a burden upon the community. Still I know that I have sinned grievously, and will abide by what your Reverence says, if only I may clear my conscience of this sin."

What answer will Fr. Sempronius have to give to this penitent, whom we will call Pelagia, so that the strict requirements of justice and restitution may be complied with, and also that a too difficult burden may not be laid upon Pelagia, which, though lived up to in her present grievous remorse, would later be found impossible to bear?

The answer is really very simple. It is evident that Pelagia, simply because she was after her unfortunate deed immediately seized with contrition, and because of the fact that she sought to extinguish the fire, is not excused from restitution. At the moment of causing the harm, she was conscious of the injurious consequences of her action, and hence her act must be considered as morally voluntaria and therefore grievously sinful. As the same was also causa efficax damni, all the requisites for the obligation of restitution are present. But according to the moralists the damnificans is wholly or partially excused from restitution when, and for as long as there would arise for him a notabiliter greater damnum than that which the damnificatus himself has suffered. (Alph. IV, n. 697.)

Let us examine if this is not Pelagia's case. All she has with which to make restitution are the savings from her wages. As regards the $400, which she has laid aside, one could not oblige Pelagia to part with the entire sum at once, for in case of emergency she would be left wholly without means. How about her future savings? Will she be obliged to give them all up for restitution? First of all Pelagia is entitled, ex jure naturae, to lay aside so much of her savings, that in her old age, in case of inability to work or other impediments, she may be able to support herself. No one can or should expect of her to deprive herself of the most necessary means in order to make restitution, for otherwise she would become a burden to the community and lead a miserable existence. That would be nimis durum! And why, in conclusion, should a third party—namely, the community, be made to contribute toward a restitution which is strictly a matter ad personam for Pelagia? In examining to what extent Pelagia should apply her savings in making restitution we must furthermore take into consideration the following circumstance. If Pelagia can not retain her savings, then she will have little hope ipso facto of winning the security and protection of wedlock; for if she has not at least some money it will be a hard matter for her to find some one to marry her. In her savings alone she has a possibility of entering the married state such as she desires. Though the duty of making restitution will not cease for Pelagia in the married state, she would presumably be able to do little or nothing toward making good the harm she has caused. The requirements of household and motherhood would probably demand the little that she might be able to earn herself. Must she on this account renounce all idea of marrying? Is not Pelagia entitled ex jure naturae in the event of a chance offering itself? Even the ecclesiastical marriage laws know of no prohibition in our case. To remain unmarried for life, a state for which she had neither inclination nor vocation, would be expecting something akin to heroism on Pelagia's part, and a renunciation of the married state would without doubt be a far greater incommodum than the damnum to the injured party if in the married state she is unable to make further restitution: besides, there would be the dangers toher soul if unwillingly she were made to lead a life of celibacy. There would therefore be a damnum altioris ordinis present in consequence of which Pelagia would even be in conscience bound to enter into matrimony, if there was a possibility of her doing so.

Hence there apply in our case the principles “No one is bound to make restitution at a loss to himself very much greater than the creditor’s advantage” (Kutschker: “Doctrine of Restitution”), and “A good of a lower order is not to be restored to the detriment of an equally grave good of a higher order” (ibidem), inasmuch namely as matrimonium belongs to a higher order of good than the mere material bonum which the injured farmer would receive if the persona ad compensationem obligata did not enter the married state. If therefore the obligation of restitution can not be insisted upon to the extent that Pelagia must on that account renounce a natural right, such as the married state, then one must also allow her the means necessary to obtain this natural right. In other words, Pelagia can not be bound to devote her future savings to restitution to such an extent that because of it she can not hope for a possible matrimonial alliance. Nay, more, if one reflects how trifling her savings are in reality—what are eighty or ninety dollars a year? provided of course she avoids all unnecessary outlay—one could ask her at most to give up a trifling part, or more probably, none whatever, from these small savings so long, at least, as there is a probability of her getting married. Should Pelagia however not enter the married state, she would only be called upon, as we have already mentioned, to deprive herself of so much of her savings, past and future, that she will not be left entirely without means in her old age, or in the event of inability to work. If she should possibly have poor parents to support besides herself, then, of course, this natural duty of filial affection would take the place of the duty of making restitution. In the event of Pelagia's ever becoming possessed of considerable means, by inheritance, for instance, she will, of course, be obliged to use such moneys for restitution in so far at least as she does not necessarily require them for her own needs.

Is a person answerable in conscience, or in foro interno, for damage done by his animal? The case is this: A. had a dog that repeatedly chased and killed chickens belonging to B. B. had complained to A. about his dog, but, as it seemed, to very little purpose, because the dog continued to injure and destroy B.’s property. Finally B. killed the dog. Now, the dog was a valuable animal, worth many times more than the chickens, and A. is at present endeavoring to recover damages in the courts. Is A. justified in bringing suit to recover the value of the dog, or was B. justified in killing it? Which one of them ought to stand the loss of the chickens?

Answer.—In answering the foregoing questions, the confessor proceeds in quite a different way from the judge of a court of law, because, there is a very material difference between the forum internum and the forum externum, i. e., between the court of conscience and the civil law court. The decision in a case given by the confessor will often differ very materially from the decision given by a judge in a court of law. In the forum internum, or court of conscience, in a case like this one, it is the culpa theologica that counts; in the civil courts, it is the culpa juridica, or the omission of the care which the law requires in the use of property so as not to injure others. When the confessor estimates a man’s responsibility for injury done by the man’s animal, his first concern is to ascertain whether the damage done by the animal is imputable to its owner as a sin, that is a culpa theologica. If the damage done was the result of carelessness, then was the carelessness sinful?

If there was no sin, then as far as the court of conscience, the forum internum, is concerned, there is no restitution to be made. The civil court, on the contrary, is concerned about the culpa juridica, that is to say, the civil judge is not concerned about the sinfulness of the accused’s action of omission, but only about the fact of the omission of that care which the law requires of citizens in the use of their property so as not to injure others in person or property. Whether the omission of the proper care was sinful or not, is no concern of the civil court. The court endeavors to ascertain the culpa juridica, that is, in the present case, whether A. failed to take the care that the law demands that he take in the use of his property so as not to injure others. Whether A. committed a sin in failing to confine his dog is of no consequence in the civil court, provided it can be shown that he failed in the care required by the law. It is the only thing of consequence in the forum externum. A.’s carelessness in keeping and using his dog may have been wholly without sin; in fact there may have been no real carelessness at all, but only what is called constructive carelessness, nevertheless the court will hold him liable. The general rule of the law is that a person shall so use his property as not to injure another in person or property. Where a person uses his property so as to injure others, even though he be not guilty of any sin or criminal carelessness in such use, still if he fails to take the amount of care that the law says he must take, then he is guilty of constructive carelessness, and is liable. It is irrelevant that he did not intend to do the injury, that he did not actually foresee it, and was not guilty of sinful or criminal negligence in not foreseeing it; the fact remains that the injury was inflicted because the amount of care that the law ordains that people must and shall take in the use of their property, was not taken, and therefore A. is liable.

If a case like the present one, therefore, is being tried in foro interno by the confessor, and no sin attaches to A.’s neglect to confine his dog, then no reparation can be required of A. in foro conscientiae, ante sententiam judicis; whilst, if this same case is argued in the civil court, the fact that injury resulted from the use which A. made of his dog will be prima facie evidence that A. did not employ such care as the law directs, and the court will so find, until proven otherwise.

This rule of the law, although it may work a hardship in some particular instance, is just and wise and reasonable, as regards the whole community, because it compels persons owning property to use it in a reasonable and just manner so as not to injure others, and were it not for this disposition of the law, a great deal of injury would be done to life and property through carelessness and neglect, and the social order would be very considerably disturbed. Reparation imposed by the law for injury done to others in the use of one’s property, is just and reasonable and must be made.

According to the statute law, a dog is a tame animal and therefore the owner must know of his vicious habits to be held liable for damages done by him. But where the dog was upon the premises of another and did injury, the owner was held liable by the court, although without knowledge of the dog’s bad habits. In case a dog kills or wounds sheep or lambs, the statute law makes the owner of the dog liable for the value of the sheep killed or wounded by the dog, whether the owner. knew of its vicious habits or not, even though the sheep be at the time trespassing. This refers of course only to the killing of sheep or lambs. The dog’s propensity to chase and kill such animals is so universally well known, that the law supposes every owner of a dog to have knowledge of it and holds him liable for any injury resulting therefrom. In cases where other property is injured by a dog, knowledge of the dog’s vicious habit must be proven against its owner, before he can be held liable. The liability of the owner or keeper of any animal for an injury committed by it is founded upon negligence. Any person is justified by the law in killing another’s dog, where the dog is dangerous or ugly, and his owner knew it, and the dog is found running at large or has been bitten by a mad dog; when it attacks one’s domestic animals on his land, or when it attacks persons or in any way becomes a nuisance; when in the act of chasing, worrying or wounding sheep, unless such chasing, etc., be done by the direction or permission of the owner of the sheep, or by his servant. But no one has a right to shoot a dog because he has been trespassing on his land, although he may have put up a sign or notice on his land that he would do so.

The confessor, therefore, if we may be allowed to repeat, distinguishes between a culpa theologica and a culpa juridica. Culpa theologica is a real sin, either mortal or venial; culpa juridica is the omission of the care which the law requires of persons in the use of their property so as not to injure others, whether the omission be sinful or not. Very often such omission will be sinful: then it becomes theologica; but it will also often happen where it is not sinful: then the theologians call it culpa mere juridica. The principle insisted on in moral theology is this: “For an injurious action to induce an obligation of restitution, it is required that it be theologically culpable; for no one is bound in conscience to repair harm unless it was inflicted culpably in conscience.” No one can be held liable for the results of involuntary actions. Now only voluntary actions can be sinful. If an action is not sinful, although injurious, then it is not voluntary qua injurious, and one can not be held answerable for the injury. The injury done may be voluntaria in se or else voluntaria in causa, or altogether involuntary. A person may intend the injury resulting from his action of omission or he may not intend it, but still foresee it as necessarily resulting from his action or omission, which action or omission is done for some other purpose and not to cause injury. In this latter case, if the injury is foreseen and no sufficient cause is present to justify its being allowed to happen, it is imputable as sin.

Now let us apply all this to the present case. It may be said, then, that it is lawful to kill another’s dog if he is injuring one’s property, but only on certain conditions. These conditions are: (1) Killing the dog must be the only way open to us to stop the injury. If the injury may be prevented by notifying the owner of the dog, etc., then in conscience it is not lawful to kill it; (2) the injury done by the dog must be a grave damnum; (3) the primary purpose of the killing must be the protection of one’s property, and not the injury done to another. These conditions are required in foro interno; for the forum externum all that is required is proof that the care required by the law was or was not taken in using one’s property.

The confessor must determine whether A. was guilty of sinful negligence in the keeping and using of his dog. According to the statute law he is liable for carelessness and may be compelled to repair the injury resulting from such carelessness. The dog in killing B.’s chickens becomes a nuisance, and may be killed and damages recovered from A.

But before the matter is brought into court, what is A.’s duty? It will depend on the nature of A.’s carelessness in keeping his dog. If A. was guilty of sin in being careless, then he is responsible in conscience for the injury done by his dog. A. had been notified of his dog’s vicious habits and should have so guarded that he could not injure another’s property. In neglecting to do so, he evidently failed in his duty and committed a sin, and must now make reparation.