The One Counseling

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

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

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

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

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by retraction, and becomes merely the occasion of the damage; but clothed counsel continues to influence even if it has been retracted, unless it is destroyed by contrary motives equally efficacious.

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

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

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

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

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

¹ Ballerini-Palmieri III, n. 362.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I. Notion. The one counseling is he who induces another to inflict damage in his own name (cf. n. 999).

Counsel is distinguished into doctrinal and impulsive. Doctrinal counsel is that by which someone gives a judgment about the liceity or illicitness, the justice or injustice, of an action; impulsive counsel is that by which someone, once the morality of the action is known, excites another to the action. Each can be either bare or clothed, according as it is not confirmed, or is confirmed, by assigning motives, means, the place or opportune time of execution, or something similar.

II. Damages to be repaired. 1. He who gave doctrinal counsel is bound thus:

a) If he gave it from office, he is bound to repair both the damages which are going to befall the one seeking counsel and those which are going to befall others from it. For all the aforesaid damages must be imputed to him (St. Alphonsus, III, 564).

b) If he did not give it from office, he must restore the damages which befall others from it, but not those which befall the one seeking counsel. The reason for the former is that he is their unjust cause; the reason for the latter is that these must be ascribed to the imprudence of one seeking counsel from an unskilled person. If, however, he used deceit, namely by pretending skill, he is bound also to repair the damages that would follow for the one seeking counsel, because in this case these too must be imputed to him (St. Alphonsus, loc. cit.).

2. He who gave impulsive counsel is bound to restore the damages which befall others from it, but not those which befall the one seeking counsel. The reason for the former is that they must be imputed to the one giving counsel; the reason for the latter is that the one seeking counsel, by freely following the counsel, should impute to himself the damage that followed from it (St. Alphonsus, III, 558).

III. Cessation of the obligation of restoring. The obligation of restoring ceases:

1. If the counsel was bare, whether doctrinal or impulsive, the obligation ceases by a serious revocation, signified to the executor in time. For thus the counsel ceases to influence the effect (St. Alphonsus, III, 559).

2. If the counsel was clothed, most authors hold as sufficiently probable that the counselor is freed from the obligation of restoring if he brings forward motives which of themselves ought to destroy the former motives; to these especially belong motives sought from faith. For then, they say, the execution is said to proceed more from the executor's own malice than from the counsel of another (St. Alphonsus, III, 559).

Corollary. The counselor who, after his counsel has been revoked and weakened as much as he can, could not turn another away from execution, is bound by charity to warn the person who is to be damaged; indeed by justice, if the counsel was clothed, because counsel of this sort - although the execution of the counsel is said to proceed more from the executor's own malice than from the counsel of another - nevertheless in some way continues to influence (St. Alphonsus, III, 559).

Question 1. Is it permitted to persuade one prepared to harm a determinate person that he should inflict on him rather a lesser evil than a greater one?

Response. Affirmatively, because by acting thus he prevents a graver damage rather than counsels some damage (St. Alphonsus, III, 565).

Question 2. Is it permitted to persuade one prepared to harm that he should inflict rather a lesser evil on one person than a greater evil on another?

Response 1. It is not permitted to persuade one prepared to harm that he should inflict rather a lesser evil on a determinate person than a greater evil on another. Namely, just as it is not permitted to avert one's own damage with injury to another, so neither is it permitted to prevent another's damage with injury to another; unless the difference between the two damages is of such a kind that the other, as regards the counsel given, cannot be reasonably unwilling (St. Alphonsus, III, 565, 577).

Others admit the contrary, because it is conformable to charity that the damage be prevented of him who will suffer more, rather than of him who is going to undergo lesser damage; hence the one to be harmed cannot be reasonably unwilling toward the counselor, but only toward the damager himself. But the fact that one consenting to his own damage exercises an act of charity does not prevent him from being reasonably unwilling and from licitly not consenting.

Response 2. Likewise it seems illicit to persuade one prepared to harm that he should inflict rather a lesser evil on someone, that is, on a non-determinate person, than a greater evil on another, for example that he should harm a rich man rather than a determinate poor man. The reason is that in this case the one persuading influences the damage of him who will be harmed (St. Alphonsus, loc. cit.).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

520. (A) Notion. One counseling is he who, by showing motive or means, or by persuasion, induces another to inflict damage upon the neighbor; he is distinguished from one mandating, because he does not move another to act in his own name.

Hence counsel can be given especially in three ways: (a) by proposing motives from which it may appear that the thing is licit, or honorable, or useful, or even necessary; (b) by indicating means by which damage can be inflicted, by which, e.g., poison can be made or administered without danger, - or such a house invaded; (c) by using persuasion, e.g., by exhortation, prayers, blandishments, promises, inducing another to harm the neighbor. - Under another respect, especially a twofold counsel can be given: doctrinal, by which it is declared that such an action is evil or good, valid or invalid, etc.; impulsive, by which, abstracting from the question of validity or liceity, another is moved to inflicting damage.

521. (B) Obligations of the one counseling in the case of impulsive counsel. The general principle is that the one counseling is bound to restitution of that damage which he foresaw as going to follow efficaciously from his wicked counsel. It is clear from what has already been said; for then he is the unjust, efficacious, and culpable cause of that damage. - If two at the same time have furnished unjust counsel to the same person, each is bound to restitution, because each had efficacious influence in the damage.

522. Applications. (a) If unjust counsel is given to one who is already truly determined to inflict evil, there is no obligation of restoring; because in this case the counsel was not the efficacious cause of the damage.

(b) If another is already determined to inflict damage, and the one counseling persuaded him only as to the mode of doing the thing, or other circumstances of time, place, etc., the one counseling is not bound to restitution, unless accidentally by such counsel he increased the damage, or was the cause of the whole damage; e.g., if by persuading as to the mode he persuaded him to greater damage, he is bound concerning this excess; if he persuaded that the damage should be inflicted sooner, so that the damage would have been impeded if longer delay had been awaited, he is bound to repair the whole damage.

(c) He who counsels a lesser evil to one who is already determined to inflict a greater is not bound to restitution, if the lesser damage is inflicted upon the same person; for in this case he is not the efficacious cause of any damage. But if he counsels that damage be inflicted upon another determinate person, according to the common opinion he must restore, since he truly is the cause of the lesser damage inflicted upon such a determinate person. Yet some say that, even in this case, no place is given to restitution, because, they say, counsel of this kind is in conformity with charity; moreover he who suffers the lesser damage is not reasonably unwilling toward the one counseling, but only toward the damager. - This argument seems weak; for, if the counsel had not been given, damage would not have been inflicted upon this determinate person; but this person is not bound to yield his own right in order to avoid another's greater damage. Hence in practice the former opinion seems to us to be followed.

523. Corollary. He who revokes counsel given before the damage is inflicted: (a) is not bound to restitution, if the counsel was simple, or bare, namely founded upon no motive, because by revocation the influence of the counsel is removed; (b) but more probably he is bound when the counsel was supported by reasons, if by contrary motives he could not change the mind of the executor; for the reasons previously alleged still subsist, and efficaciously act upon the mind of the other. This is especially true and commonly admitted if the one counseling made known to the damager the mode of perpetrating the damage, without knowledge of which the injury could not have been committed, e.g., by teaching the secret mode of opening doors; or furnished means of inflicting the damage.

Nevertheless some probably hold that the one counseling is not bound to restitution, even when he alleged motives, provided in the retraction he brought forward other motives equally efficacious; for if the executor does not wish to yield, the damage must be attributed to his malice, not to the counsel of another. - Besides, according to all, if the one counseling could not turn the executor away from the unjust purpose, from justice he is bound to warn the owner that he guard himself.

524. (C) Obligations of the one counseling in the case of doctrinal counsel. (a) He who by force of his office, as a confessor, advocate, physician, gave harmful counsel, whether from vincible ignorance or from evil intention, is bound to compensate the damages following from it, whether to the one seeking counsel or to a third party; for he who seeks counsel from one who is in office has a strict right not to be deceived by the culpable lack of skill or malice of the one counseling; and therefore the one counseling in this case directly violates the right of him who seeks counsel, and indirectly of those who contract with him.

525. (b) But he who gives counsel, not from office, is generally excused from restitution for the damage which the one seeking counsel suffered, unless however he deceitfully pretended skill; for, the case of fraud being excluded, he who seeks such counsel from an unskilled person and follows it spontaneously exposes himself to the danger of damage, and ought to ascribe to himself the damage which he suffered.

Yet one furnishing wicked counsel is bound to repair damage inflicted upon an innocent third party, provided he foresaw this at least confusedly.

(c) He who gave harmful counsel from ignorance or negligence, without grave fault, certainly from charity and more probably from justice is bound to retract it, provided he can do this without grave inconvenience; if he neglected this, he is bound to restitution. This is clear from what was said above, n. 480.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

312. The counselor and the flatterer. - A counselor (conseiller; raderi) is one who moves another to inflict damage upon his neighbor in his own name; whence he is distinguished from a mandator by this, that he does not move another to act in his own name: for if he does this in his own favor, by that very fact he is a mandator. Hence the executor of counsel acts in his own name, the executor of a mandate in the name of another; and therefore, while the mandator is a primary cause, the counselor is a secondary cause; whence he is bound only secondarily to repair damages.

One counsel is doctrinal, another impulsive. Doctrinal or theoretical counsel is concerning the truth or licitness of an action, by which, namely, it is declared licit if it is illicit, good if it is bad, or bad if it is good, valid if invalid, or invalid if valid, etc. Impulsive or practical counsel abstracts from the truth or licitness of the action, but, cutting off from it, indeed with the injustice of the action supposed, nevertheless moves another to it by which damage may be inflicted.

Each is clothed or qualified, or naked or simple. The first at the same time suggests motives or means of harming: motives, namely, from which it may appear that the action is licit, honorable, easy, excusable, useful, necessary; or means by which damage can be inflicted certainly, easily, safely, by which, for example, poison is prepared, abortion is procured, a house can be invaded; the other simply induces one to harm by persuasion, entreaties, blandishments, promises, or other exhortations, for which ordinarily mere example does not suffice, which of itself alone is an occasion and not counsel, unless it is given professedly by way of teaching or invitation.

A flatterer (louer; prijzen) is to be equated with a counselor: he is one who by praising or by blaming incites another to inflict damage on a neighbor or not to repair it.

It is committed by adulation, praise, reproach of idleness or pusillanimity, exaggeration of a contumely received, mockery, whispering, etc., by saying, for example, "you are idle if you suffer this," "it is unbecoming to your state," "you lose honor if you do not take vengeance." The flatterer exercises the same influence as one offering impulsive counsel; and consequently he must repair the damage inflicted in the same way; nevertheless, he who approves damage already inflicted is per se not bound to restitution, unless the approval induces new injuries or efficaciously impedes reparation from injury.

1. if by reason of status or office, or for another cause, he publicly professes expertise, as a physician, advocate, notary, confessor, etc., and gives harmful counsel, whether a) from vincible ignorance, or b) from gravely culpable negligence, or c) from bad intention, he is bound to repair every damage arising therefrom, both to the one consulting and to a third party: for he who seeks counsel from one who is in office or professes expertise has a strict right not to be deceived by the ignorance or malice of the one consulted, with damage to himself or to a third party; whence in the case the counselor is the unjust, efficacious, and culpable cause of both damages;

2. if a merely private person gives counsel, he is bound to repair the damage inflicted on a third party, because he is its voluntary cause, insofar as he foresaw it at least in confusion; but he is not bound to restore to the one seeking counsel, unless he deceitfully affects special expertise: for he who seeks counsel from an unskilled person spontaneously exposes himself to the peril of damage and deceives himself, and whatever damage he may suffer, he ought to impute to himself and to his own imprudence;

3. each is bound from justice to retract the counsel given: with grave inconvenience indeed if he gave harmful counsel from grave fault, otherwise without grave inconvenience; but if he neglects to retract it, he is bound to restitution.

B. The counselor by merely impulsive counsel, or the flatterer, is bound to repair the foreseen damage which from the counsel was inflicted on a third person, because he unjustly harmed him; but not the damage which comes upon the one seeking counsel, because injury is not done to one who knows and consents.

Hence 1) if wicked counsel is given to him who is already sufficiently determined to inflict damage, there is no obligation of restoring, because the damage was not inflicted from the counsel which was not its efficacious cause.

2. When the other is already determined to inflict damage, if the counselor only persuades the mode of doing it, or another circumstance of place, time, etc., he is not bound to restitution; unless per accidens, if he has thus increased the damage, as if by indicating a mode he persuaded greater damage, in which case he is bound concerning this excess, or if he procured it more certainly or more safely, as if he warned that it must be inflicted sooner because otherwise it would have been impeded, in which case he is bound concerning the whole damage.

3. He who counsels a lesser evil to him who is already determined to inflict a greater one is not bound to restitution, if the damage is inflicted on the same person, because then he is not the efficacious cause of that damage but only of its diminution; on the contrary if he said that a lesser damage should be inflicted on another person determined in particular, because then he is the true cause that damage was inflicted on this one, nor is it licit to impede the damage of one with the injury of another. Nor let it be said that such a one is unreasonably unwilling against such counsel, for no one is bound with great inconvenience to yield his right, in order to avoid the greater damage of another; and even if he were bound to this, it would be from charity alone, not from a strict debt, which does not suffice to remove the nature of injury from the action (n. 246).

4. If two or more together offer wicked counsel, all are equally bound to restitution in solidum, as efficaciously influencing the damage.

5. He who, before the damage is inflicted, has efficaciously revoked the counsel (or adulation), so that the revocation became known to the one seeking counsel,

a) is not bound to restitution if the counsel was simple, which is destroyed by a simple retraction;

b) even if the counsel was clothed or attended by reasons, provided he has brought contrary motives equally efficacious or stronger, such as reasons sought from faith: for then if the other does not wish to yield to these motives and change his mind, the damage will have to be attributed to this one's malice, but not to the revoked counsel;

c) but if the counsel was clothed with an indication of the mode or means of perpetrating the damage, the counselor from justice is bound not only to revoke the counsel, and by valid reasons to induce the other not to use the counsel; but also, if he cannot turn him away from the unjust purpose, to warn the owner that he take care for himself, or in another way to impede the execution as much as he morally can, as was said concerning the mandator; otherwise he will be bound concerning restitution on account of the damage.

As to the flatterer, it should be noted that an influence is removed with more difficulty from blame than from praise.

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

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

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

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

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

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

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

II. Counseling is taken in a twofold way : 1° For him who pronounces judgment upon the goodness or malice of an action, as he who says a contract is licit when it is illicit. 2° For him who, the injustice of the action supposed and known, urges it, either by proposing the utility, pleasure, honors which will come from it, or exciting to it by prayers, blandishments, promises, or finally furnishing the means and ways by which it can be done efficaciously and safely.

[Counsel is otherwise distinguished. 1° It is doctrinal, when the counselor pronounces judgment upon the justice or injustice of someone's act; or impulsive, if he move the executor to the act. 2° It is naked, when the counselor merely opens his opinion concerning the justice or injustice of the act, or simply pushes toward it, adding no reason and no motive; but clothed, if reasons and motives are brought forward by the counselor whereby the counsel, whether doctrinal or impulsive, is confirmed.

This distinction is reduced to the superior one. Counsel of the first kind above expounded is doctrinal, and can be either naked or clothed. Counsel of the second kind is at once impulsive and clothed.

III. In general it must be said, as above, that he is held to reparation who by the counsel he gave was made the positive, efficacious and formally unjust cause of damage inflicted upon someone. This evident principle is confirmed by the condemnation of the following proposition by Innocent XI : « He who moves or induces another to inflict grave damage upon a third party is not bound to restitution of that inflicted damage. » Whence]

Counselors of the first mode, to whom it belongs by reason of office or profession to give counsel, such as parish priests, confessors, preachers, theologians, advocates, physicians, etc.; likewise those who conduct themselves as competent counselors and profess themselves experts in such matters, are held, from theological fault and according to the measure of the fault, to restitution of the damage which follows from their false counsel, both to him who asks the counsel and to him against whom it is asked. Because, since they are bound and reputed to have the requisite expertise, they deceive others who follow their counsel in good faith, and thus through fault and deception are the cause of the damage. By opposite reason, counselors who do not profess expertise by reason of office, nor conduct themselves as experts, are not held for the damage to him who asks counsel; for there is no injury to the knowing and willing. They are nevertheless held to him against whom the counsel is asked, because the latter is neither knowing nor willing.

[It is here to be observed that the counselor is not held toward him who suffered the loss unless the counsel was unjust, efficacious and formally unjust or culpable. Furthermore, in this latter case, namely if the counselor, neither expert nor presenting himself as expert, being asked, opens his opinion simply and without the mind of harming, his counsel lacks none of the three conditions required for the obligation of repairing damage to exist. Therefore. Otherwise, however, it must be said if, conscious of his inexpertise, he volunteers counsel from whose execution he foresees, at least confusedly, that damage may befall a third person. So commonly³⁹⁴ .] ³⁹⁴ S. Lig., lib. IV, n. 564.

But it must be observed, with Silvius, Lessius and others, that no one is held to any restitution whatsoever with respect to anyone who indicates while giving counsel that he doubts, or who simply opens his mind, saying that it seems so to him, yet not persuading the other to follow; because, since he determines nothing with certainty, affirms nothing, persuades nothing, if nevertheless he acts who asked counsel, caring not to have greater certainty, and thence damage follow to himself or another, it must be attributed to his own will alone and rashness.

Say the same of him who answers according to the more probable opinion; for then he does not sin, even if perchance he is deceived.

[The same must also be said of him who, when some obligation toward a third party is in question, answers according to an opinion truly and solidly probable, even if the opposite seem somewhat more probable. This conclusion is drawn from the principle laid down by us in dissertation VII on Human Acts, on Probability.]

IV. Counselors of the second mode, namely those who urge the crime either by prayers, blandishments, praises, etc., or by proposing the advantages resulting from it, or by indicating the ways by which it can be done more safely and efficaciously, are held to nothing with respect to him who asks counsel, because there is no injury to the knowing and willing; but they are held with respect to him against whom the counsel is asked, if damage ensue to him from it, which is beyond doubt from what was said above. But to what he is bound, if to one already prepared for the substance of the crime he counsel only place, time, increase, decrease, and similar accidents, I also said in the cited place.

[That is, he is bound insofar as the quantity of the damage was increased by the counsel : whence to nothing, if nevertheless the whole damage would have been inflicted.]

V. There remains, therefore, the difficulty whether, the counsel having been timely recalled before the damage is inflicted, the counselor remains absolved from the burden of restoring, if nevertheless the damage be done. The question is commonly resolved with a distinction, according to the diverse mode of counseling.

A counselor of the first mode, the counsel timely recalled, is ordinarily not bound to restitution, as if you had said and urged that a contract is licit which is illicit, if before the deed you declare that you were deceived, you are not bound; because then the whole reason of acting ceases.

Among counselors of the second mode also a distinction must be made. He who urged the crime leaning on prayers alone, promises, or a false supposition, the counsel timely recalled, does not seem held for the damage; because then the reason of acting arising from counsel ceases too. But he who counsels crime by proposing its utility, pleasure, honor, etc., or by indicating means and ways by which it may be done more securely and efficaciously, is not regularly absolved from the burden of restoring by the simple recall of such counsel; for notwithstanding this recall, there remains regularly the whole force of the counsel, that is, the weight of the reasons and the impression made by them in the other's mind. For however much you say to him : « Do not do it, I repent having indicated or urged it to you, » you do not prevent the crime from appearing useful, pleasurable, etc., to him, nor from knowing the ways and means of perpetrating it which you furnished to him.

Wherefore, if moved by these he execute the crime, he is his cause, and liable to restitution.

VI. What then shall the counselor do, that he be freed from the obligation of restoring? He ought, as far as lies in him, destroy by more efficacious reasons and motives the reasons and motives of the prior counsel. If he cannot do that, he ought to warn him against whom he gives counsel, if he can without far greater loss to himself, that he watch over himself and his affairs, as was said concerning the commander. Finally, if, notwithstanding this, damage be done from the given counsel, the counselor, however repentant, nay even justified, remains liable to restitution, because he remains the true cause of the damage; and if he be dead and perhaps blessed in heaven, this obligation passes to his heirs. And hence you will conclude a fortiori that he is not exempted from the burden of restoring who urges the wrongdoer to restore, and he does not restore.

[Thus a distinction must be made, to solve this doubt. 1° If the counselor gave simple or naked counsel, and recalled it, especially if he showed its falsity, he is excused from restitution; because he is no longer the efficacious cause of damage proceeding from the malice of the executor. So commonly.

2° But if the counsel was clothed, that is, leaning on urgent motives, it is contested. Several hold the counselor not exempted from the obligation of reparation even if he recall the counsel; for, they say, the motives proposed continue always to move. Many indeed excuse from compensation, provided other motives of equal efficacy be opposed; because the previously posited cause is elided, and the author of the damage acts from his own malice, especially if the counselor tried to stir his conscience. St. Liguori calls this opinion, which seems probable to the theologians embracing it, very probable, and indeed most probable, sufficiently probable, although he holds the opposite more probable³⁹⁵ . We judge, however, that it can be held as absolutely probable and indeed more probable, if truly the counselor tried in the best way he could to avert the damage. ³⁹⁵ Lib. IV, n. 559.

It is objected by patrons of the prior opinion : He who cast fire into a house to burn it, and afterward grieving vainly tried to extinguish it, is certainly held to compensation of the damage. Therefore, by parity.

I answer. I deny the parity. In the case of fire, fire is the material and physical cause, which acts necessarily, and not of itself. Therefore the effect must be attributed to the first and voluntary cause, from whose action it truly proceeds. In the case of counsel, however, both causes are moral and free, and if the first ceased to act in the second and even to withdraw it from the effect, the latter acts of itself, and the damaging action is to be attributed to it alone. Therefore.

Except however the case where the counselor supplied to the actor a means of inflicting damage which the latter would not have found, v. g., a wholly hidden way of entering the house; because the cooperation was truly efficacious, especially if it had been foreseen that the thief's will would not change. Then one must reason as concerning fire cast into a house.

But if the counselor cannot turn the executor away from inflicting the damage, he is bound by justice to admonish the owner, that he may provide for himself³⁹⁶ , as was said above.] ³⁹⁶ Id., ibid.