The Doubtful Damager

460. On doubtful damaging. 1. He who doubts whether damage was truly inflicted, that is, whether the action placed by him was the cause of the damage, if after diligent inquiry the doubt perseveres, is bound to nothing; for an obligation must not be imposed unless it is certainly established.

Thus he is bound to nothing who doubts whether a calumny uttered by him brought damage to another in business.

2. He who doubts concerning the influence of the cause on the damage, as if damage is established and there is doubt whether it followed from his action or from a natural cause, by the same reason is bound to nothing.

Therefore he is bound to nothing who doubts whether the death of an enemy followed from poison administered by him or from disease. Likewise he is bound to nothing who doubts whether the damage which a merchant truly suffered arose from a calumny uttered by him or from another cause.

3. If the damage is established and it is established that several placed a cause per se efficacious of the damage, but there is doubt from whose action the damage followed, it seems that one must distinguish thus: a. if several acted by common conspiracy, or at least with advertence by which they knew that several together were placing a cause of damage and that for this reason the author of the damage could become uncertain, they are bound to repair the damage: for each by his own manner of acting is the cause why it is uncertain who inflicted the damage, and thus they unjustly impede the owner from being able to demand compensation. b. If the individuals did not foresee that by their manner of acting the author of the damage could become uncertain, since the damage cannot certainly be imputed to anyone, likewise no one is bound to restitution.

Thus if two discharge a bullet into another's cow and only one bullet is found in the body of the killed animal, each is bound to repair part of the damage, and if one is deficient the other is bound to the whole, if, what rarely happens, they foresaw that they were making the author of the damage uncertain in this way. St. Alphonsus, n. 657 coll. n. 562, contends that no one is bound to repair damage unless it is established with moral certitude that he himself was the cause of the damage: for to induce the obligation of restitution it does not suffice to place an unjust action, but in addition it is required that the damage certainly followed from it.

461. To what is he bound who doubts whether he has already paid a debt?

a. If he doubts only negatively, he is certainly bound to payment: for a debt once contracted must be paid, unless at least a solid reason suggests that payment has already been made.

b. If he doubts positively, so that solid probability stands for each side, the creditor certainly can seek payment either privately or through a judge, and can accept and retain payment either made spontaneously or adjudged to him by a judge: for the creditor is not despoiled of the right of seeking payment unless it is established that payment was made.

c. Whether the debtor must pay spontaneously in conscience is very much disputed: some oblige him to make full payment, others to pay a part according to the ratio of the doubt, finally others entirely free him from making payment: for a doubtful obligation is none. And indeed equality between the given and the accepted, which commutative justice demands to be established, cannot be established while doubt remains; but there is no reason why the creditor should receive more than what is equal rather than the debtor, supposing that the debtor is not the culpable cause of the uncertainty.¹

¹ Cf. Waffelaert, De iustitia (Bruges: Beyaert, 1886), II, n. 261; De principiis^3, n. 220.

462. On error in damaging. He who inflicted damage from invincible error, being ignorant of its magnitude, must repair it insofar as it was voluntary, or insofar as he foresaw it at least confusedly; but as to the part of the damage which he did not apprehend, the damage is involuntary and therefore is not theologically culpable.

a. Therefore he who throws a gem into the sea from invincible ignorance, thinking that it is glass, afterward knowing its true value, is bound only for the damage which he knew. This solution is true if invincible ignorance is certainly established; but if the true damage was foreseen in some way, at least confusedly, which ordinarily happens, the whole must be repaired. For unless the error is excessively great, it must be said that it was foreseen in some way. Hence he who takes away a watch thinking it bronze, which afterward he finds to be gold, is not excused from restoring the whole price of the watch.¹

b. He who, wishing to kill Paul's goat, by error kills his horse, must repair the damage of the goat. Nor is the opinion of those to be admitted who teach that no obligation of restoring is present because this damage happened per accidens and therefore was involuntary.

c. He who burns a house must repair the whole damage inflicted from the fire, even if he did not distinctly know its magnitude: for it suffices that he foresaw that indefinitely great damage would follow from his action. In this case only that damage can be called involuntary of whose existence he could not even have suspicion.

¹ Cf. St. Alphonsus, l. 3, n. 613; Lugo, disp. 8, n. 63; Carriere, n. 1151.

463. The famous question is, to what he is bound who, intending to harm someone, from invincible error inflicted damage on another; for example, who, wishing to burn the house of Titius, burned the house of Sempronius, invincibly thinking it was the house of Titius.

a. From the hypothesis the error of the damager is invincible: for if he has even the smallest suspicion that the thing which he destroys does not belong to him whom he intends to harm, without doubt he is bound to restore it.

b. All concede that the question must be solved from this principle: if the damage inflicted is voluntary and therefore formally unjust, it must be repaired; but if the damage must be said to be involuntary and therefore only materially unjust, no obligation of restitution exists. Therefore it is asked whether this error impedes the damage from being able to be considered voluntary.

c. Several and weighty authors are of this opinion: that in this case no obligation of restoring is present,¹ not to Titius, because he suffered no damage, nor to Sempronius, because with respect to him the damaging action is altogether involuntary.

For an action is involuntary whose object is not apprehended; but he who, altogether ignorant, inflicts damage on Sempronius does not apprehend that he injures the right of Sempronius; therefore he inflicts damage on Sempronius involuntarily. In other words: the obligation of restitution does not arise except from an action which is formally unjust against him to whom damage is truly inflicted; but this action against Sempronius is not formally unjust, but only materially unjust; therefore nothing must be restored to Sempronius.

d. Nevertheless, in this case the damager theoretically cannot be excused from the obligation of restitution: for all the conditions required for inducing the obligation of restoring are present: an unjust action, efficacious of damage, and theologically culpable; nor can error concerning the person impede the action from being voluntary as to its substance and inducing the obligation of restitution.

Indeed alpha. Although the damager did not intend to inflict damage on this person, nevertheless he willed to destroy another's thing; but by that very fact he took on himself the burden of restoring the destroyed thing. For just as the damaging action contains a true sin against commutative justice, even if the damager errs in the person whom he injures, so from the same action arises the obligation of restoring, which is always connected with a voluntary damaging injury of commutative justice. Now if it is asked to whom the damage must be repaired, it must be said: to the injured owner, even if he did not explicitly intend to inflict damage on him. For he who destroys another's thing, which he erroneously thinks belongs to this owner, has a twofold intention with respect to the owner: explicit of injuring the putative owner, and implicit of injuring the true owner of the thing; but when the error has been detected, there is no obligation with respect to the putative owner, but the obligation remains with respect to the true owner of the thing. beta. The common sense of men agrees: no one who does not know the controversy of theologians about this matter frees such a damager from the burden of restoring, because this persuasion is implanted in all by nature: he who advertently inflicts damage is bound to repair it, even if he does not know the damaged person or errs concerning him.² gamma. Yet if someone by error kills Peter while wishing to kill Paul, and if the damage to be repaired to the one involuntarily killed is much greater than the damage to be repaired to Paul, he does not seem bound to repair the whole (n. 462).

e. Yet if someone, relying on the authority of theologians and especially of St. Alphonsus, can form his conscience according to the contrary opinion and intends to follow it, practically he cannot be obligated to make restitution.

¹ Of this opinion is Lugo (disp. 17, n. 77 s.), whom St. Alphonsus follows (n. 629) with his followers, and among recent authors D'Annibale (II, n. 232) and Genicot (I, n. 522).

² Ballerini-Palmieri III, n. 441; Lehmkuhl I, n. 977; Marres l. 2, n. 69; Vermeersch n. 165.

I. He who doubts either whether damage followed, or whether he posited the cause of the damage, or whether he posited the said cause with the required theological fault - he who doubts about these things, I say, is not held to restitution. For in the enumerated cases there is question of a doubt of fact founding the law or obligation. But in such a doubt the obligation is lacking (n. 228; St. Alphonsus, III, 562).

II. He who posited the cause, but doubts about the influence of his action, for example of evil counsel given, on the damage that followed, likewise is not held to restitution; for the reason alleged under I holds. Note, however, that if there is question of a physical cause, for example of a wound inflicted and apt for killing, commonly there is no reason to doubt the influence; but it is more easily present if there is question of a moral cause, for example of counsel or command (St. Alphonsus, loc. cit.).

You should also apply these things: 1° if several unjustly posited a cause, and it is doubted whether some one of the agents influenced the damage; as if several committed adultery with the same wife, and it is doubted whether the offspring was born from conjugal intercourse or from adultery (St. Alphonsus, III, 658); 2° if several unjustly posited a cause, and it is doubted which one of them influenced the damage. The case would be if several, while the husband was absent, had intercourse with the wife at the same time morally speaking. Make exception, however, if one or the other was a culpable cause of the doubt, as if someone, while the husband was absent, conscious of adultery committed by another, had intercourse with the same wife (St. Alphonsus, III, 658).

III. What has been said about the doubtful damager should also be applied both to him who doubtfully or doubtfully unjustly impeded another from obtaining a good, and to him who doubtfully or doubtfully unjustly cooperated in injustice.

485. That doubt can precede or follow the damaging.

(A) If the doubt precedes the action, namely if someone doubts whether such an action can injure the right of another or not, he must investigate the matter, with that diligence namely which the gravity of the matter demands; but if, after diligent examination, a positive and grave doubt perseveres, he must abstain from the probably harmful action; for justice forbids that damage be even probably inflicted upon another.

Thus a judge cannot pronounce sentence against someone if he seriously doubts whether this man is guilty; nor can a physician apply a remedy which he judges to be probably dangerous, when another certainly efficacious one is at hand; nor can a hunter discharge a gun at some object about which he doubts whether it is a man or a beast.¹

¹ These cases differ altogether from the case of the indirect voluntary, namely when from a cause licit in itself a twofold effect can arise: one certain, namely one's own good or that of the neighbor, and the other doubtful, namely damage to a third person: for then the action is licit, provided the good effect compensates the evil.

486. (B) If the doubt follows the action, several hypotheses can be imagined: (a) if, after diligent examination, a probable doubt remains whether the cause of damage was unjustly posited, e.g., whether someone unjustly calumniated another, - or whether in fact some damage was inflicted upon the neighbor, e.g., whether the neighbor suffered damage in his business from the calumny or not; in both cases, strictly speaking, there is no obligation of restoring, because an obligation ought not to be imposed unless it is morally certain; but in the case the injury is doubtful. - Moreover, in doubt the condition of the possessor is better.

487. (b) If the damage is certain, and it is likewise certain that a sufficient cause of the damage was posited (e.g., calumny), but it is doubted whether this damage followed from this cause or from another, more probably he who posited the cause is bound to restitution, because the damage is deservedly presumed in fact to follow from this cause, until the contrary is proved; yet probably some hold that the obligation of restitution is not to be urged, because that the effect followed from the cause ought not to be presumed, but proved.

488. (c) If damage certainly has been inflicted, but there is a twofold cause, each of itself efficacious, and it is doubted from which one the effect followed (e.g., two men at the same time discharged a gun at the same victim), the matter is controverted; much more probably each is held in solidum to restitution; for each culpably posited a cause of itself efficacious for damage, and if uncertainty arises as regards the author of the damage, this must be attributed to the damagers themselves. - Yet St. Alphonsus probably holds (n. 657) that the obligation of restitution is strictly to be imposed upon no one, because no one is bound to despoil himself on account of a doubtful obligation. In practice, restitution is earnestly to be advised, if not urged.