The Measure and Order by which Cooperators Are Held to Restitution

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. Measure of restitution. 1. Those who have cooperated in the same damage can be held to restitution in two ways: in solidum and pro rata, as they say. An obligation in solidum consists in this, that the cooperator is held to restore the whole damage; an obligation pro rata is had when someone is obligated only to the part which is commensurate with his influence. The obligation in solidum is distinguished as twofold: absolutely and conditionally solidary, according as someone is held to the restitution of the whole damage before all others, or only in default of the other cooperators. One who is held absolutely in solidum can demand no compensation from the cooperators; otherwise one who is held conditionally.

2. He is held in solidum who has so influenced the whole damage that the whole must be imputed to him; others are held only pro rata for their own part. Hence they are obligated in solidum:

a) He who alone was the principal cause of the damage, as a sole one commanding (St. Alphonsus, III, 579).

b) He who alone was the secondary cause of the damage, as a sole executor (St. Alphonsus, loc. cit.).

c) Those who were equal causes, whether principal or secondary, as follows. These are held in solidum:

α) Those whose cooperation was necessary, although not sufficient, for inflicting the damage; as if three carry away a chest which two could not have carried away (St. Alphonsus, loc. cit.).

β) Those whose conspiracy was necessary, so that, if one had not consented, the damage would not have been inflicted (St. Alphonsus, loc. cit.).

γ) Those whose cooperation was in fact sufficient, even if it was not necessary for inflicting the damage; as if two induced a thief to steal, and each proposed an efficacious motive; or two discharge a gun at the same person, and each inflicted a lethal wound (St. Alphonsus, loc. cit.).

δ) It is disputed concerning those whose cooperation indeed regarded the whole damage,¹ but was neither necessary nor sufficient.² But a sufficiently probable opinion teaches that they are held to restitution only pro rata, because in this hypothesis the whole damage seems to be ascribed rather to all together than to each separately (St. Alphonsus, loc. cit.).

Note. "It must be observed that although rough persons are held in solidum, it is rarely expedient to obligate them to the whole; since such persons are with difficulty persuaded that they are held to restoring the part taken by their companions. - Indeed, it can be presumed enough that the owners themselves to whom restitution is owed consent that they restore only the part taken by them; since otherwise there must be great fear that they will restore nothing, if they are obligated to the whole" (St. Alphonsus, III, loc. cit.).

¹ It is said: it regarded the whole damage; hence the case is not present if several, for example, carry away a heap of wheat, but each carries away his own part, and this without mutual influence or dependence.

² The case is present if someone, for example, proposed to another a motive for killing someone, which was not necessary, and yet by itself would not have sufficed to move the killer efficaciously; or if four carry away a chest which even two would have carried off.

II. Order of restitution. Those who cooperated in the same damage are held to restitution in this order:

1. Before all others the possessor is held, that is, he who has another's thing in itself or in equivalent. If he is no longer possessor, before all others he is held who consumed or destroyed another's thing in bad faith, unless he did this in the name of another (St. Alphonsus, III, 580).

2. Next the one commanding is held, if there was one, because he "is principal in the deed" (St. Thomas, II-II, q. 62, a. 7, ad 2; St. Alphonsus, loc. cit.). But to him is assimilated the one who by unjust means, for example by false doctrinal counsel, "was the cause why the damage was inflicted: for although then he is not the principal cause in strictness, nor does the executor act in his name but in his own, nevertheless by injustice he cast the executor into the obligation of restoring; therefore he is bound to preserve him unharmed, and accordingly must restore in the first place for him on whom he unjustly imposed such an obligation."¹

3. Then the executor is held (St. Thomas, loc. cit.; St. Alphonsus, loc. cit.). To him is equated one who was a participant in the unjust action and acted in his own name, for example one who with others cast a vote efficacious for passing an unjust sentence; because such persons are co-executors of unjust damage.

4. After the executor other positive cooperators are held; among these there is no order (St. Alphonsus, loc. cit.).

5. Finally negative cooperators are held (St. Alphonsus, loc. cit.). Even among them there is commonly no order. Nevertheless, sometimes an order seems to have to be admitted; thus, for example, particular guards, who are immediately bound to impede damages, seem to be obligated before general guards, who must watch that the particular guards duly fulfill their office.

Corollary I. Among cooperators there can be a twofold subordination: one as regards damaging, another as regards the mode of cooperating; and then there will also be a twofold order in the obligation of restoring. For example: Paul commands his son to counsel Peter not to impede damage which Peter by justice ought to impede. In the case all are non-impeding; but in the order toward restitution Peter precedes the rest; if he fails, Paul comes as the one commanding; finally the son as the one counseling.²

Corollary II. If a solidary debtor has repaired the whole damage, the less principal causes are held to nothing; but the more principal causes must refund the whole to the said debtor, and equal causes each their own part. For example, A, B, and C, equal solidary causes, owe Peter 30 florins. A restores the whole. In the case B and C must each refund 10 florins to him (St. Alphonsus, III, 581).

It is disputed whether, if some cause refuses to refund his part or cannot do so, another must partially supply the part not refunded. For example, in the case given, B refuses to return 10 florins. Must C refund 15 florins? Many deny, because the obligation in solidum exists only toward the creditor, not toward fellow debtors. But it seems this must be affirmed; for by the fact that B refuses to pay 10 florins, A and C are each held to return 15 florins to Peter, so that A, by returning 30 florins, returned 15 florins for C, and therefore can demand them from him.

To the argument of the adversaries I respond that the obligation in solidum exists directly indeed toward the creditor alone, but indirectly toward fellow debtors, if the latter have paid the creditor in place of another debtor.

Corollary III. If a solidary debtor has received condonation, all less principal causes are held to nothing; but more principal causes are in no way freed; nor, per se, are equal causes freed, although they are not held to restore the part condoned to the fellow debtor. I said per se, because sometimes the intention of the one condoning to free equal causes can be presumed (St. Alphonsus, loc. cit.).

Nevertheless, let it be seen what civil law establishes about condonation.

Corollary IV. One of the solidary co-debtors who doubts whether his companion has restored his part is more probably bound to restore the whole; because in doubt about payment, the right of the damaged person, as prior to payment, is of better condition (St. Alphonsus, III, 569; I, 34; n. 1020).

¹ Waffelaert, II, n. 399.

² Sweens, n. 361.

Whether there is an obligation of restitution from contract? Restitution is the restoration of damage given. But damage is said from taking away. Wherefore restitution properly supposes something taken away and as it were diminished from our things. Hence the things which someone owes to another precisely by force of contract or quasi-contract, e.g., by force of sale, purchase, mutuum, commodatum, etc., he does not restore, but renders, as though giving back. Nevertheless, as restitution truly belongs by nature and by law, so also it can belong by pact. And thus, if a borrower by evil deceit broke vessels lent to him, by natural right he is held to restitution.

If by civil fault he did not guard them and lost them, by civil right he is held to restitution. If he took a fortuitous event upon himself, he is also held to restitution, not from natural or civil right, but from pact. Likewise someone is held to restitution and compensation of damages from pact when it is not fulfilled, or if he is constituted in delay. And the same obligation of restitution arises from quasi-contract: "as Princes, who are bound to preserve justice in the land, if robbers increase through their defect, are held to restitution; because the revenues which they have are as it were stipends instituted for this, that they preserve justice in the land." St. Thomas, 2. 2, q. 62, a. 7. - C. I. 1218 ff.; C. A. 919, 1295; Inst. l. 3, t. 14.

Whether theological fault is required to induce the obligation of restitution for damage inflicted on another's thing, which was detained from some contract, e.g., of commodatum, deposit, lease, etc.; or whether juridical fault suffices? - There is a twofold probable opinion in this matter, one affirming, the other denying, concerning which we have already spoken in n. 1072.

Whether theological fault is also required for the obligation of restitution because of damage inflicted on another in fulfilling an office, or in observing a quasi-contract, e.g., if a physician from inculpable error furnished a harmful remedy to the sick person? - Resp. Affirmatively, more probably. The reason is 1. because the obligation of restoring because 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 agreement of the parties. 2. Because such an obligation would be harmful to the public good; for from it upright and God-fearing men would be kept away from undertaking the affairs of others, as well as from public offices. - Except nevertheless: 1. If someone undertaking some office expressly promises that he will employ such diligence; for thus he is obliged from special pact, especially if for this reason he accepts a greater stipend. 2. When he tacitly promised such diligence, e.g., by boasting that he is better and more learned than others, and thus preventing the other from seeking one more learned or more diligent; for thus he deceived the other, and consequently is held to the damage following from his ignorance or negligence, even if this in itself was not theologically gravely culpable. Cf. 1072; Ithur., Cas. 27, n. 20; Gousset 923; C. A. 1299, 1300, 1306; Inst. l. 4, t. 3, §§ 6, 7.

What is owed by reason of delay? If the obligation is in a certain sum of money to be handed over, which was not handed over at its own time, legal interest must be paid from the day on which the debtor is in delay, without the creditor being bound to prove the damages which he suffered, C. I. 1231; C. A. 1333. Indeed, from the day of judicial petition, or of special agreement entered into after the time of restitution has elapsed, interest of interest is owed. C. I. 1232. Cf. here 1105, 1106; C. A. 1335. If the matter of the contract is not money, but another thing, and the debtor is in delay in handing over the thing, the thing remains at his danger, although before the delay it was at the danger of the creditor. C. I. 1219. If compensation of damages has been determined by agreement, one must stand by it, C. I. 1230. Otherwise, with deceit not intervening, only damages are to be compensated which were foreseen, or could have been foreseen at the time of the contract, C. I. 1228. But with deceit intervening, all damages must be compensated which directly and immediately come from the unperformed fulfillment of the obligation, C. I. 1229. - C. A. 912, 913, 1324, 1333; L. 704.

Whether there is an obligation of restitution from the sentence of a judge? There is no doubt that an obligation of restoring is present from the juridical sentence of a judge. This is established 1. from the common opinion of theologians; 2. because civil power also, when it legitimately commands, has the force of obliging in conscience. But the civil magistrate commands legitimately, whether according to law he imposes a fine to be paid, or also according to the same law settles lawsuits regarding property. Therefore. But that these laws are just is clear again 1. from the common authority of theologians; 2. from the fact that among all civil nations these laws have flourished and do flourish; 3. because these laws are especially necessary for the right rule of civil society and its common good, whence civil authority can in no way lack the moral faculty of making such laws. L. 631, 641, 711, 927; St. Thomas, 2. 2, q. 62, a. 3; q. 66, a. 5, ad 1.

Whether there is an obligation of restitution from law? There is likewise no doubt, as is established from what has just been said, that an obligation of restoring is present immediately from the law itself, even with no juridical sentence of a judge

Whether in the remaining laws, while juridical fault stands, someone is bound to restitution before the sentence of the judge, and after it can compensate himself? - St. Alphonsus, 554, speaks of juridical fault, whether it alone, without theological fault, suffices for imposing restitution, and says: "Those laws which in certain cases altogether command restitution indeed oblige, even if sin is absent, but not before the sentence of the judge." But one condemned by a judge "to repair damage because of juridical fault can by no means compensate himself for such reparation, because the sentence of the judge for the internal forum also stands by the one suffering damage." Ithur., Cas. 27, n. 4.

Civil fault is justly restrained, because it is a matter of avoiding common danger of damage. - Therefore, although an owner is not bound to repair damages inflicted on a neighbor by his animals without his theological fault before the sentence of the judge, nevertheless he is bound after the sentence, nor can he thereafter secretly compensate himself. - Hence also "although precisely for life, member, killing, there is no obligation of restoring, nevertheless through the sentence of the judge the one injuring is compelled to satisfy for the injury." L. 631. - If in order to avoid damage, damage is caused to another, compensation is owed to him by him in whose favor that damage was inflicted. Thus according to C. L. 2396 seq.; C. A. 1320 ff.; C. I. 1154, 1155; C. H. 1905 ff.; C. L. 2394, 2395; Inst. l. 4, t. 3, 5.

"Whether he who by frauds or lies, or false witnesses, prevents goods from being applied to the treasury which because of a crime, e.g., of a toll not paid or another, would be assigned to the treasury, is bound to restitution? - Resp. With Lessius... and others very commonly, that after sentence he is certainly bound; but otherwise before sentence, because before sentence the treasury has acquired no right to the penalty, which is not owed except after sentence; or because at least this right of the treasury to penalties is commonly accepted thus." L. 583. But cf. here 1367.

intervening. Consequently, civil law produces such an effect of restitution to be made in only a twofold case:

1. When by the fact itself it transfers ownership, as are the laws of prescription.

2. When again by the fact itself it impedes transfer of ownership, as are laws invalidating contracts by the fact itself, and laws decreeing the legal price of merchandise. Wherefore in no way is someone bound to a fine or to restitution before the condemnatory sentence of the judge, or at least a declaratory one, if the law is penal, or merely prohibitive but not invalidating, or even invalidating, but only by right, not by the fact itself.

1. Crepinius, a son under paternal power, by feasts, drinkings, games, held in a tavern with many other unruly youths, contracts many debts with Medardus the tavern-keeper. Grifinus gives surety for Crepinius. Hence, when Medardus could obtain payment of the debts neither from Crepinius nor from his father, he demands it from Grifinus.

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

R. To the 1st. Affirmatively. For this is deduced from the very notion of restitution. For through a contract another already has either a right in a thing or a right to a thing.

And if through restitution that which is his own must be rendered to another, it is plain that restitution must be made not only when another’s thing is held against the other’s will, as in theft and rapine, but also when it is held through his will, as in a loan for consumption or a deposit, or another contract. S. Th. 2.2. q. 62. a. 1.

To the 2nd. Since the debts contracted by Crepinius, a son under paternal power, did not yield to his advantage and utility, but to his damage and grave harm, Crepinius can invoke the sentence of a judge and not pay the debts. Let Medardus impute it to himself and to his own fraud that he contracted with a son under paternal power, supplying to him the occasion of so many vices. I. M. 667, 953. Nor truly is the father of Crepinius held to paying the debts. For he furnished no consent in contracting those debts; and so he is held neither by positive law nor by natural law. Nor is the father of Crepinius held to paying those debts if he himself administers the son’s goods. For the son himself cannot reclaim those goods except after majority, and the son then will be able to invoke the sentence of the judge. G. 586, 287, 771. — Grifinus is nevertheless held to paying the aforesaid debts by reason of the suretyship made. For although it was made for a minor, nevertheless it is valid both by natural law and by positive law. I. M. 1266.

2. Benignus, a bishop, administrator of a pious legacy of Masses, prudently doubting nothing concerning restitution, gave to Fidelis, a most faithful parish priest, as a loan the sum of 10,000 lire. After a week Fidelis suddenly dies. The sum lent is not found, nor any document of it; whence the heirs do not acknowledge it. Nor truly can Benignus bring forward any document. For on the same night on which Fidelis was dying, robbers carried away with them from the episcopal palace the chest with the money and papers of the whole episcopal administration. Did Benignus commit theft, and is he held to restitution?

R. To the 1st. Benignus did not commit theft. For theft is the hidden taking away of another’s thing, the owner being reasonably unwilling. But there was no hidden offering [printed: oblatio] of another’s thing, nor could the owner in that loan be reasonably unwilling, since no danger in it was prudently foreseen, and since Benignus certainly had to invest that money in some way, so that from the fruits Masses would be celebrated.

To the 2nd. Certainly all theological fault was lacking in Benignus. Wherefore from this head he would certainly be held to nothing. By reason of administration and quasi-contract he would indeed be held from juridical fault to restitution or compensation. But before the sentence of a judge, and in the forum of conscience, the matter is at least controverted among the doctors, and so the obligation is doubtful, and practically none. Besides, juridical fault is not established in the Case; for the loss of that sum is in truth owed to no negligence, but to a fortuitous event. Wherefore Benignus is held to nothing. The thing perishes to its owner. Nevertheless, since there is question of the celebration of Masses, and compensation as to them can easily be made through the Supreme Pontiff, supplying from the treasury of the Church, it seems that it should indeed be sought from the Supreme Pontiff. — I. M. 1072, 1077, 1118, 1389, 1393.

3. Durandus by a defamatory pamphlet defamed Guibertus the advocate. Recourse having been made to the judge, Guibertus obtained a sentence fully favoring him, and condemning Durandus to pay 50,000 lire to the same Guibertus as compensation for injured reputation and for repairing the damage inflicted. Durandus refuses to pay this sum, saying that the sentence is unjust and does not obligate him in conscience, because reputation is not compensated by money; because the damage inflicted on Guibertus, a middling lawyer, cannot be estimated as so much; because finally he himself took nothing away from Guibertus.

Q. What as to the Case?

R. Durandus is held to pay the whole sum of 50,000 lire to Guibertus by force of the just sentence of the judge. Although it is controverted whether, by the rigor of strict commutative justice, compensation is given between goods of a diverse order, e.g., between reputation and money, because between diverse goods there cannot be an equalizing of thing to thing; nevertheless there is no doubt that the aforesaid recompense can be given, by reason at least of natural equity, and by reason of a penalty inflicted by the legitimate authority of the judge. Wherefore from this head there is no doubt that the sentence of the judge was altogether just and obligating in conscience. I. M. 1324. “It must be said,” says S. Th. 2.2. q. 62. a. 2 ad 1, “that in those things in which an equivalent cannot be recompensed, it suffices that there be recompensed there what is possible.... And therefore when that which has been taken away is not restorable by something equal, recompense such as is possible must be made; as when someone has taken away a limb from someone, he ought to recompense him either in money, or in some honor, the condition of both persons being considered, according to the judgment of a good man.” And in the same place, ad 2, “It must be said,” says the Holy Doctor, “that someone can take away reputation from another in three ways. In one way by speaking truth and justly, as when someone reveals someone’s crime, with due order being observed; and then he is not held to restitution of reputation. In another way by speaking falsely and unjustly; and then he is held to restore reputation by confessing that he spoke falsely. In a third way by speaking truth, but unjustly, as when someone reveals the crime of another against due order; and then he is held to restitution of reputation as much as he can, nevertheless without a lie, as by saying that he spoke badly, or that he unjustly defamed him; or if he cannot restore reputation, he ought otherwise to recompense him.” Wherefore again the sentence of the judge from this head must be held as altogether just and obligating.

Nor truly is Durandus’s other reason valid, namely that the reputation of Guibertus cannot be estimated as so much. For first, judgment in this matter certainly does not pertain to Durandus, but to the judge. Besides, although the aforesaid reputation of Guibertus perhaps is not to be estimated as so much in itself, nevertheless after the sentence of the judge Durandus is held to recompense and pay so much. For,

“when someone unjustly accepts another’s thing, two things are to be considered there; one of which is the inequality on the part of the thing, which sometimes is without injustice, as is plain in loans for consumption; but the other is the fault of injustice, which can be present even with equality of the thing, as when someone intends to inflict violence, but does not prevail. Therefore as to the first, a remedy is applied through restitution, insofar as equality is repaired through it; for which it suffices that he restore as much as he had of another’s. But as to the fault, a remedy is applied through a penalty, the infliction of which pertains to the judge; and therefore, before he is condemned by a judge, he is not held to restore more than he accepted; but after he has been condemned, he is held to pay the penalty.” S. Th. 2.2. q. 62. a. 3. Therefore the judge, by condemning, can justly command that something more be paid in place of amends or penalty, which nevertheless was not owed before someone was condemned. S. Th. l. c. ad 3. Therefore the sentence of the judge in the Case is just also from this other head, and obligating in conscience, although it is true that in itself the reputation of a middling advocate is not worth so much.

Finally, that which Durandus asserts in the last place is also false, namely that he himself took nothing away. He certainly took away reputation; and, reputation having been taken away, he inflicted damage, and grave damage, on Guibertus. But whoever damages someone takes away from him that in which he damages him; and damage unjustly inflicted must be compensated from strict justice.

4. Ioannes in France legitimately contracted marriage in the face of the Church with Ioanna, from whom he had one only son, to whom by testament he left his whole rich inheritance. After the death of Ioannes it is learned that his marriage with Ioanna had been null, on account of the fourth degree of consanguinity, which nevertheless had always previously been unknown by both spouses. Hence the blood-relatives of Ioannes, in order that they themselves may receive the inheritance, strive altogether to exclude from it the only son of Ioannes, as illegitimate and born from an invalid contract of marriage.

Q. What as to the Case?

R. Since the marriage of Ioannes and Ioanna, although invalid, nevertheless was contracted in good faith and indeed by both spouses, both by Canon Law and by Civil Law the offspring is held as legitimate, and so has every right to the paternal inheritance, nor can he be driven away from it. And this is valid even if before the death of Ioannes himself the marriage had been declared null. But the offspring succeeds in the Case as altogether legitimate, by hereditary right, into the paternal goods, indeed even into the goods of the collateral relatives of the father or mother. C. Cum inter 2. Qui filii sint legitimi; French Civil Code art. 201, 202; Schmalzgr. l. 4. tit. 17. n. 11 seqq.; Toullier Il Dir. Civ. Franc. l. 1. tit. 5. n. 666.

542. Cooperators are often bound to restitution in solidum, insofar as the obligation is incumbent upon individual cooperators of repairing the whole damage which was inflicted by several. This obligation is absolute, if restitution must be made without recourse against the other accomplices; conditional, if one has a right of having recourse against the others.

543. (A) Principle: Individual cooperators are bound to restitution in solidum as often as they had influence upon the whole damage, so that the whole can morally be attributed to individuals: absolutely, if they are a principal cause; conditionally, if they are a secondary cause.

For each one is bound to repair the whole damage of which he was the unjust, efficacious, and culpable cause; but such is the case with those of whom we are treating, as is clear. - The whole difficulty is in defining who have influence upon the whole damage. - These are:

544. (a) Cooperators who act by a conspiracy properly so called, namely when individuals efficaciously impel the others to inflicting the whole damage by persuasion, counsels, etc.; e.g., robbers who enter upon a plan of plundering a house and mutually incite themselves to doing this. - But it is doubted whether the same must be said of those who by simultaneous action, but without mutual persuasion, inflict some damage in one and the same thing, e.g., burn the same house or sink a ship, when otherwise the cooperation of individuals is not necessary; many more probably affirm,¹ because morally the whole effect proceeds from individuals; yet not a few probably deny,² because individuals concur only partially in the damage, and therefore are bound only to repairing the part of the damage which they caused.

¹ Salmantic., de Restit., cap. 1, n. 151; Soto, Bonacina, etc.

² Lugo, disp. XIX, n. 83; Sporer-Bierb., tr. IV, n. 351; St. Alphonsus, n. 579.

(b) Cooperators each of whom was a necessary cause for inflicting the whole damage; e.g., jurors who in England or the United States would condemn an innocent man, since the vote of each is necessary for obtaining the condemnation; two thieves unjustly carrying away another's thing, which one could not have carried away.

545. (c) Cooperators each of whom was a sufficient cause of the whole damage, e.g., two men at the same time discharging a gun at an innocent man, so that each inflicts a lethal wound; or two giving wicked counsel, when either one would have been sufficient for moving the agent to the damaging action.

(d) A damager who is the principal cause of the whole damage, as one mandating, or the thief who seeks other associates for carrying away a stolen thing.

546. Hence he who joins himself to others already determined to plunder a house, but so that his action is not necessary, is bound only to repairing the part of the damage which he himself inflicted; he who sets fire to buildings which others have already efficaciously set on fire is bound only to compensating the part of the damage which he himself caused; a soldier who in an unjust war inflicted damages with the rest of the army is bound only to repairing the part of the damage of which he himself was the author.

547. (B) On the order to be preserved among cooperators who are obliged in solidum. A distinction must be made between those who caused the damage in the same grade and those who caused it in a different grade.

1. If cooperators inflicted damage in the same grade and manner, e.g., if all were mandators, or counselors, having influence upon the agent in the same manner, individuals must restore equally; i.e., each is bound to his own part, and if one or another does not restore, the others must proportionately restore this part, with recourse preserved against him who paid nothing.

548. 2. If cooperators concurred in the damage in a different grade, they are bound in this order: (a) he who detains another's thing; (b) the one mandating; (c) those executing; (d) the other positive causes; (e) finally the negative causes; namely: -

(a) He who detains the thing in itself or in an equivalent, or unjustly consumed it; for the thing cries out to the owner, if it still exists; and, if it does not exist, he who before the others had profit from another's thing ought first to feel the burden of restitution; (b) the one mandating, who is the principal cause in relation to those executing; (c) those executing, because, after the one mandating, they had the principal parts; and if among them one was principal, because he himself gave the mandate to others, he is bound before the others; (d) the other positive causes, which are bound equally, provided they acted in almost equal manner and independently; (e) in the last place the negative causes, among whom that one will be bound first who was held by a stricter obligation of averting the damage.

549. (C) Corollaries. (a) If the principal cause has restored or obtained condonation from the owner, the secondary causes are bound to nothing. But if the owner has condoned one of the secondary causes, the principal cause is not thereby freed.

(b) If one of the secondary causes has restored, the principal cause is bound to restore to him.

And so, if the holder of another's thing has restored, the other cooperators are bound to nothing. - If the one mandating has restored, the holder must make restitution to him, and the rest are bound to nothing. - If the principal executor has restored, first the holder, and, in his absence, the one mandating, must furnish compensation to the principal executor. - If one of the positive causes has restored, first the holder, afterward the one mandating, third the principal executor, must restore the whole to him. - But if these refuse, the other equal causes must pay their own part to him.

(c) If one of the negative causes has restored, the holder, and in his absence the one mandating, afterward the executor, and at last the other positive cooperators must restore the whole to him; but if these are lacking, the negative causes are bound to pay their own part to him.

550. Things to be noted for practice. (a) If one of the secondary cooperators doubts, after inquiry has been made, whether the principal author has restored, he is not to be compelled to restitution, since the obligation of restoring cannot be imposed unless it is morally certain. - But if he doubts whether cooperators of the same grade have restored, it suffices that he restore his own part, for the same reason.

(b) Often it is expedient not to compel cooperators to restore the whole damage, even if they are held in solidum. For St. Alphonsus rightly says (n. 579): "Yet it must be noted that the uneducated, although they are held in solidum, rarely is it expedient to oblige them to the whole; since these persons with difficulty persuade themselves that they are held to restoring the part taken away by associates. Indeed it can sufficiently be presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them; since otherwise it is greatly to be feared that they will restore nothing, if they are obliged to the whole." Hence often the confessor will exhort the unjust cooperator to restore what he owes, according to the dictate of his conscience.

I. Principle. To whatever whole damage to be effected, or to whatever part of damage to be effected, each has unjustly and efficaciously contributed, he must repair that to the injured person, yet in such a way that the less principal cause has recourse (ricorso) against the more principal cause, from whom therefore he will be able to reclaim what has been paid. - Moreover, the more principal cause is that which has used the aid of the others physically or morally. Thus one mandating, one commanding, is more principal than one executing; the executor, than the counselor of the execution; he who has cooperated by positive action, than he who merely did not impede the execution. - The reason of the response is because the more principal cause subordinates the others to itself and, as it were, absorbs them.

II. Corollaries. 1. Therefore, he who alone was the more principal cause must make good, without recourse, every damage imputable to himself.

2. If several were equally principal, they must divide the damage among themselves. For these causes are coordinated among themselves. Yet each owes the whole to the injured person (who therefore are held in solidum): a) if they acted from conspiracy or a society of wills; for then, beyond the parts which they execute, they are formal accomplices of the others; b) if by some other reason they contributed to effecting the whole damage; whether because nothing could be effected without them, or because their cooperation truly pertained to the whole damage. So, at least, the common sentence.

When several are obligated in solidum, each owes the whole to the creditor or injured party in such a way that afterwards he can reclaim from the others the part paid for them. Therefore each must furnish the debt absolutely for his proportionate part, but conditionally (unless the others pay), the whole debt.

Besides that solidarity among debtors, there is also solidarity among creditors when, by force of agreement, each can exact the whole from the debtor, which afterwards they will have to divide among themselves.

3. Whatever one owes definitively or absolutely, he has to pay to the injured person unless it is morally established that satisfaction has been made to him: in which case he will have to return what has been paid to the one who made satisfaction.

But he who is bound only by a conditional obligation (i. e. if the others fail), then only must make good the damage when, either from an inquiry having been made, or from the customs or inability of the principal debtor, it is morally established that satisfaction has not been made by him and will not be made.

III. Scholia. 1. The unlearned understand with sufficient difficulty the obligation of restoring in solidum with recourse against others. Those, in turn, to whom restitution is owed will prefer to obtain a part rather than nothing. Therefore, if there is danger lest those obligated to the whole be unwilling to restore anything, the injured persons can not rarely be presumed to consent that only a partial obligation be urged.

Wherefore, from St. Alphonsus (Homo Apostolicus, tr. 10, n. 54), it will be preferable to exhort those unlearned in theological or juridical matters that they restore what they owe, permitting their conscience to define the quantity.

2. You should observe that, for damage to be from conspiracy, formal consent of intentions is not sufficient, but it is required that the damage have its cause in that consent. Thus the common soldiers of the same army indeed conspire; but by that conspiracy of the individual soldiers few are moved.

From the things said you will gather these applications.

1. Counselors per se had a partial and secondary influx into the whole damage. Wherefore per se they are conditionally held (after the principal causes) for the whole damage which would not have been done without the counsels.

2. Those who, an association having been made, commit thefts, are held in solidum for robberies foreseen in a confused way and for connected damages of persons or things, although some things were done by some and others by others. For all seem to have arisen from the conspiracy.

3. When several, without conspiracy, have exercised partial efficacy upon divisible damage, it suffices that each restore the part which he has injured, for example, the part of the house which he has destroyed. And the evildoer who acceded when no hope now remained of saving the part seems to have done no damage.

But if partial causality effected damage not divisible, as if four carry off a chest which three would have carried off, the patrons of the common sentence, not very consistently enough, obligate each to a man's share only (Lugo, d. 19, n. 82).

N. B. The opinion does not seem so established which obligates in solidum all those who, even setting conspiracy aside, furnished cooperation without which the damage could not be inflicted, or which truly was useful for inflicting the whole damage. And Lugo testifies that there is a certain controversy, d. 19, nn. 79 ss. - Nor is the obligation of restitution so certain which they impose conditionally on those who by an action not unjust in itself cooperated materially in injustice. Cf. d'Ann., I, 174; II, 93. These things can be attended to so that restitution may be urged less severely.

Norms. 1. He who has to restore another's thing or the fruit of another's thing as a holder must furnish that without any other regard of order.

2. He who is obligated as an unjust damager must immediately restore whatever, by this title, he owes absolutely; but what he owes conditionally, he owes only after him who is held absolutely. Therefore first the one mandating, or the primary cause, is held; then the primary executor; afterwards secondary causes are obligated.

3. Among those who owe conditionally, positive cooperators are obligated before negative ones; but among these themselves the order is defined by proximity. Those among whom no subordination is detected, however, are held equally.

Some doubt can be moved concerning the place of the counselor who was a persuader. Per se, he is placed after the principal executor. Yet if for his own sake he advised or asked that something be done, at least if the matter was done in his name, the counsel must be held as a virtual mandate. Cf. Less., Iust., c. 13, n. 42.

4. As often as, whether by condonation or by another reason, he who owes absolutely is freed, those who are conditionally held to that extent are freed; but the exemption of a secondary cause in no way frees the principal one.

I. Man can cooperate in another's injustice both positively, in six modes, and negatively, in three modes. Let us treat distinctly of positive cooperators.

1. One mandating, or commanding. To him, as to the principal author, are imputed all damages which, by a morally necessary nexus, are joined with the execution of the mandate, but not those which the mandatary has added by his own malice or vincible error. On account of the harmful power conferred, the one mandating can also be held by another title. By timely revocation the causality of the mandate, as such, is suppressed, though not always the causality of the counsel contained in the mandate.

2. The counselor, by doctrinal counsel, or counsel by which he communicates knowledge, has causality even principal; while by suasive counsel he exercises only secondary causality. But unless he has efficaciously revoked the counsel, the counselor of damaging counsel must make good the effects of the counsel, excepting those effects to which the proverb can be applied: "no injury is done to one consenting." An efficacious retraction of naked counsel is made by simple revocation; of counsel clothed with reasons, by new arguments being adduced; of doctrinal counsel (by which the mode of harming has been handed on), by effecting that the effects of the damaging knowledge can be avoided.

3. Consent is constituted by the concurring votes of several persons. Those who give a vote from conspiracy are authors of one morally single action; those who have given a vote necessary for the damage are compelled, by the common sentence, to bear the imputation of the whole damage; those who, without conspiracy, have given a vote beyond what was required must more truly be compared with those who, more numerous than was necessary, together did one damaging work, so that they must bear the damage at least by a man's share.

4. The flatterer or adulator, insofar as by his words he has impelled to the action or impeded restitution, can be held for damages.

5. Recourse or the receiver, who offers security either to the evildoer or to things carried off by robbery or taken away by theft, will be held for damages: a) insofar as he moved the evildoer to act; b) insofar as he furnished the means of executing; c) insofar as he omitted or impeded restitution; but not insofar as he freed the guilty person from penalties. Material cooperation of this kind can be excused by grave damage.

6. One participating in the booty will have to be treated as a possessor of another's thing; one participating in the action, if immediately, violates the negative precept of justice unless he is excused by the right of necessity; if mediately, he transgresses the positive precept of taking care lest our action bring damaging effects.

Those several who have given a cause efficacious per se of damage, so that it is unknown who truly was the author of the damage, if they acted conscious of future confusion, will be held, according to the principles, by a man's share. Those who were ignorant of this are held by only an uncertain obligation.

Negative cooperators are held to restitution insofar as, by an unjust omission, they did not impede damage which they would have prevented by their due action. In doubt, their obligation will be uncertain. Officials placed over taxes do not seem to be held by justice to exact fines.

II. On restitution. Whatever each has of another's thing, or to whatever damage each has unjustly and efficaciously contributed, that must be delivered or restored to the person to whom it pertains, yet in such a way that the less principal cause of damage owes after the principal cause, and can reclaim from the more principal cause what has been paid.

Moreover, the more principal cause is that which, using the others, has as it were absorbed the rest. Equally principal causes divide the damage among themselves, yet in such a way that each owes the whole if they are obligated in solidum, whether from contract, or from conspiracy, or even from causality which contributed to the whole unjust damage. Yet this last point is somewhat controverted.

Another's thing, however, must be returned by the holder without another consideration of order.

Positive cooperators are held before negative ones; among them the order is defined by proximity.

The liberation of him who owes absolutely frees him who owes only conditionally, but not conversely.

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.

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

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

But such are:

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

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

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

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

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

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

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

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

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

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

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

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

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

³ Yet see C. C., art. 1284 and 1285.

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

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

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

§ III. — In what order are cooperators in damage bound to restore ?

I. I suppose 1° that he who still has the thing existing with himself is bound before all to restore it : because he is bound by reason of the thing received, and this obligation is the greatest of all; for so long as the thing exists it cries out to its owner, as is commonly said, and is owed to him. But if in good faith he consumed it, he is bound insofar as he was made richer, because that succeeds in place of the thing ; if in bad faith, he is bound to the whole equivalent, otherwise he would reap profit from his new iniquity. Whence rule of law 36 in 6° : « He is had as possessor who ceased to possess through guile. » Moreover, since knowingly and willingly he received advantage from that thing beyond the rest, it is equitable that beyond the rest also he undergo the burden of restoring.

Therefore, while he restores, the other cooperators are not bound to restore; not to the owner, because he has what is his own; not to him who restored, because he has no less than he ought to have. Except however first, if the commander concede to the executor the thing taken away or part of it as wages; second, if the master order the stolen thing, for example a sheep, to be consumed by his servants. For in these and similar cases the commander and master seem to take upon themselves before others the burden of restoring.

I suppose 2° that, when several concur equally to damage, they are bound equally to restitution, each for his own part : as, if ten by common counsel burn down a house worth a thousand gold pieces, each is bound to render one hundred; if two counsel theft of a hundred gold pieces, each is bound to refund fifty; because the obligation of restoring arises from influx into the damage. Therefore, where the influx is equal, the obligation is equal. From which it also follows that, if among those concurring in the same mode, v. g., among several counselors, one flow more than another, he is bound also to restore more. But if the others fail, each is bound in solidum ; because each flows into the whole damage, if not by totality of cause, at least by totality of effect.

[And because they acted as one agent.]

But while one restores, the others owe to refund to him each his own part ⁴¹¹ : because the owner who received integral restitution from him is reckoned to have transferred to him the whole right he previously had; and otherwise his diligence would put him in a worse condition, since the fault and slowness of the others would plead their cause. Add that the non-restorers are the cause why he must restore the whole, when otherwise it would have sufficed to restore part, and therefore they are the cause of his damage. ⁴¹¹ Here q. 62, a. 6, ad 3.

II. There remains therefore the question of those who concur in diverse modes : v. g., commander, executor and counselor concur to the same damaging; it is asked whether among them there be some order, such that certain ones are bound first to restore the whole, and these failing, others.

I say : Primarily and principally the commander is bound; secondarily the executor, and consequently the others by orders, so that, the commander restoring, the rest are free from restitution; but the executor restoring, the commander is bound to restore to him, while the subsequent others remain free ⁴¹² . ⁴¹² Ibid., a. 7, ad 2.

Of the commander it is plain; because he is the principal cause by whose authority, name and grace the deed is done, wherefore all are subordinated to him and serve as instruments. Whence by the common sense of all he is reckoned to take primarily upon himself the burden of restitution of the whole. Indeed it would be iniquitous, nay ridiculous, that he who ordered others to do the crime in his name and for his advantage should exact from others part of the restitution.

To the commander here must be reckoned he who by force, fear, threats compels another to the crime. Likewise he who, whether by fraud or by prayers alone or counsels, induced another to inflict damage for his advantage; for these are equivalent to the commander, and are, just as he, principals in the deed, so that they too are reckoned to take upon themselves the burden of restitution. Indeed he who by these modes would induce a commander to command would be bound before the latter himself, because he would be more principal than he in the damage.

Of the executor acting without a commander it is also plain, because he himself is principal in the deed and damages in his own name. Of the executor truly acting by authority and name of the commander, certain ones doubt, because then he is only a secondary agent, like the other cooperators, and consequently seems bound only for his own part, like the others.

Nevertheless it is more probable that even such a one after the commander is bound to the whole, and while he restores, the other cooperators are bound to nothing; because, although he acts not for himself but for the commander, he is nevertheless after the commander principal among the rest who serve him and are subordinated to him, just as he is to the commander, namely by instructing, encouraging, heartening, arming him, etc., and that for his advantage. Whence it follows that he takes upon himself before the rest the burden of restoring.

Moreover understand this of the executor who conducts the affair in his own or the commander's name; for if he acted in the name of other cooperators, he would be bound neither before nor more than they : as if five enter common counsel for burning a house and one cast fire for all and in their name, they are held equally with him, for he is not more the principal cause than they. Whence, while he restores, the others are bound to restore to him their part.

Among the other cooperators positively, however, no order seems probable, but each is bound to his own part greater or lesser according to the measure of influx; yet so that, the others failing, each is bound to the whole, and they who restore the whole, the rest owe their parts. The reason is that none is the principal cause of another, nor is anyone subordinated to or serving another as his instrument, but each acts per se in his own line. If the flatterer is not the instrument of the counselor, nor the counselor of the flatterer.

[When damage followed from counsel, the counselor or consenter is not held per se before the executor, because the latter is posteriorly the principal cause of the damage. This however is understood, supposing that the counsel, as often happens, is useful to the executor alone. But if it be useful to the counselor alone, the latter is bound first. But if to both, both are bound pro rata. Even if the damage inflicted profited neither materially, the same order must be kept, considering whether the damaging action was posited for the pleasure or vengeance of this one or that one, or of both. One failing, however, the obligation of reparation falls solidly upon the other ⁴¹³ .] ⁴¹³ S. Lig., lib. IV, n. 560.

Nevertheless between cooperators positively on one side and cooperators negatively on the other there is an order, such that cooperators positively are bound to restore first, and while they restore, cooperators negatively remain free : not because these are subordinated to those, as I said of cooperators positively with respect to the commander and executor, but because cooperators positively properly concur to damage, cooperators negatively improperly only, namely insofar as they do not impede, as they are bound from office; and thus accepting office, they are not reckoned by common estimation of men to take upon themselves the burden of restitution except after others. And indeed it would be ridiculous for one concurring positively, when he had restored the whole, to say to one concurring negatively : « Render me part of the restitution, because you did not impede me willing or counseling theft. »

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.