Those who Cooperate in Injustice

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.

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.

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.

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?

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Ch. I, Art. III, § I. On the One Commanding · Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Ch. I, Art. III, § II. On the One Counseling · Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Ch. I, Art. III, § III. On the One Consenting

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.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 69 passages (filed under the subtopics)

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Ch. I, Art. III, § I. On the One Commanding

n. 673.

- One commanding or mandating is said to be he who induces another to act, so that he may inflict damage on another in his name.

n. 673.

The one commanding is held to repair every damage commanded and inflicted by force of the mandate; but otherwise if he only approves damage done in his own name ¹. The reason is that in the former case, but not in the latter, he efficaciously influences the damage. But for this it is required that he acted as a true master, or that through force, fear, or authority, he morally compelled the mandatary ².

¹ Mere approval of the deed pertains nothing to the account of mandate, and accordingly he who merely approves what has already been done neither ought nor can be called one mandating.

² The Author seems to have taken mandate for a certain moral compulsion or necessity of acting imposed on another. But this is far distant from the notion of mandate, which by jurists and theologians is commonly defined as a contract of good faith, consisting in consent, by which a business is committed gratis to another who undertakes it. Therefore nothing pertains here to whether the one mandating is the Superior of the mandatary, or by any other title has authority over the mandatary as over a subject. But in the definition the word gratis is added, which indeed does not reject an honorarium or salary, but only a wage strictly taken, which would transfer mandate into a contract of hiring; although in delicts mandate is commonly taken more broadly, so that it embraces even hiring, for example, of an assassin for killing a third party.

Questions. - Q. 1. Whether one mandating is held to restitution if he revoked the mandate before the damage was inflicted?

Resp. Negatively, if the revocation becomes known to the mandatary before the execution of the mandate; but otherwise if it becomes known not at all or too late, because in the former case he does not influence the damage, but certainly does in the latter. - Thus Vogler with several others.

Q. 2. Whether the one mandating is held concerning the damages which occur to the mandatary in the execution of the mandate?

Resp. Lacroix affirms with others, because the one mandating, by ordering the damage, is judged to undertake in himself the obligation of keeping the mandatary unharmed. But this seems to have to be restricted to the case in which the one mandating compelled another by force or fear. For otherwise the mandatary seems spontaneously to have undertaken in himself the whole burden and its consequences; and unless a pact concerning indemnity preceded, the one mandating will be held only from a certain equity.

Q. 3. Whether the one mandating is held to repair damage which the executor from invincible error brought upon another?

Resp. Negatively. Because the true cause of the damage is the error of the mandatary ³. - Thus Vogler, n. 279, and others commonly.

³ Nevertheless one must except if perchance it was too difficult to avoid the error. For although all agree that the one mandating is not held concerning damages which the mandatary inflicted beyond the mandate, yet they limit this if it was within the power of the mandatary to keep the limits of the mandate. Therefore also in the case in which it was not morally possible to avoid the error, the error must be imputed to the one mandating. By mandating something illicit, says Perez in Lib. 4, C. Tit. 35, n. 7, someone seems to have mandated all things which could probably accompany it. Hence in C. fin. de Homic. in 6, he who mandated a beating is pronounced irregular if the mandatary, exceeding the limits of the mandate, mutilates or kills.

Q. 4. Whether a Superior, holding damage ratified, is to be compared with one mandating?

Resp. Negatively, if the ratification follows the execution of the damage, because then it cannot influence the damage. But otherwise if it precedes the damage, or regards the proposal of inflicting damage, and truly influences it. - Vogler, etc.

Resolutions. - 1. The one mandating is held to nothing if he revoked the mandate in time, although the mandatary, in order to receive the promised payment, pretended that he had not received the revocation before the damage was inflicted.

If it is established that the revocation of the mandate was not heard or understood by the mandatary on account of deafness or distraction, the one mandating is held to restitution, because the effect follows by force of the prior mandate. The same reason has force if the one mandating sends letters revoking the mandate, and these are intercepted by some chance. - Lugo. - Vogler, n. 273, 277.

He who induces another by prayers only to inflict damage on the neighbor, for his own, that is, the inducer's, utility, is compared with one mandating, although he does not command the damage by authority ⁴, because he is principally acting in the moral order. For the executor is not judged to act except in his place, and accordingly the one inducing to damage is judged to assume in himself every burden of reparation. - See Casus, n. 657.

⁴ We have already adverted that the authority of the one mandating pertains nothing to the account of mandate; for mandate means a contract by which someone freely assumes the burden of managing another's business, not the office of a subject who obeys a superior or master.

But he who induces another by prayers ought to be counted among counselors rather than among those mandating; and he who yields to prayers acts in his own name, not in the name of the one asking, although for this latter's utility. Therefore among cooperators he will occupy not the primary but the secondary place in order to the burden of restoring.

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Ch. I, Art. III, § II. On the One Counseling

n. 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.

n. 676.

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.

n. 676.

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.

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.

- 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.

- 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.

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.

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.

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.

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.

Vol. II, Bk. II, Tractate V: On Justice, Ch. VIII, Quasi-Delict, and Fault to Be Furnished · Vol. II, Bk. II, Tractate V: On Justice, Ch. III, § 2. On the Restitution of Cooperators

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.

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Ch. I, Art. III, § III. On the One Consenting

n. 681.

Principles. - I. One consenting is held to restitution whenever knowingly and freely he emits a vote or sentence on which directly depends the violation of another's right, that is, whenever he gives efficacious consent to the damage or injury of the neighbor. I said, efficacious consent, because if the consent did not efficaciously influence the injury, he would not be held to restitution, since he consented affectively indeed, but not effectively, to the harm; and likewise if, fraud or a special pact being excluded, by his vote he impeded another from the attainment of a good to which he had no right.

n. 681.

II. He is not held concerning the damage who authentically revokes a sentence or vote previously given before the wickedness is consummated; nor one voting in good faith, although when the error has been detected he is held from charity, indeed from justice, to revoke his vote, if by time it is licit for him to do this.

n. 682.

Questions. - Q. 1. Whether one consenting, who gives an unjust vote, is held to restitution if other votes already sufficient for the damage are not lacking?

…and 29 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 39 passages (filed under the subtopics)

Vol. III, Contracts, and the Obligat…, On the Virtue of Justice (…, Part I — Chapter III: On Restitution

n. 485.

4. On Doubt as Regards Damaging.

That doubt can precede or follow the damaging.

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

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

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

n. 486.

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

n. 487.

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

n. 488.

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

n. 516.

I. Which Cooperators Are Bound to Restitution?

Nine are commonly enumerated, comprehended in these verses:

Command, counsel, consent, flatterer, refuge,

Participant, silent, not opposing, not revealing.

Of these the first six are called positive, because they concur by action in inflicting damage; the latter three are called negative, because they concur in it by omission of an action owed from justice. - Concerning each we shall explain whether and by what reason they are bound to restitution.²

² St. Thomas (l. c.) briefly contracts this as follows: "It must however be known that five of the preceding always oblige to restitution: first, command, because he who commands is the principal mover, whence he is principally bound to restore; second, consent, in that, namely, without which robbery cannot be done; third, refuge, when namely someone is a receiver of robbers and furnishes patronage to them; fourth, participation, when namely someone participates in the crime of robbery and in the booty; fifth, he is bound who does not oppose, when he is bound to oppose... But in the other enumerated cases someone is not always obliged to restore: for counsel, or flattery, or something of this kind, is not always the efficacious cause of the ruin. Hence only then is the counselor, or flatterer, that is, adulator, bound to restitution, when it can probably be estimated that the unjust taking followed from causes of this kind."

n. 517.

1. On the One Mandating or Commanding.

(A) Notion. In general, one mandating is said to be he who entrusts to another a business to be carried out in his own name; but in our matter he is one who induces another to inflict damage upon the neighbor in his own name; if the one mandating is a superior, who has the power to command, he is called one commanding. - And this indeed can be done in a twofold way: explicitly, namely by command, threats, prayers, hope of reward, or another act by which another is positively moved to harm the neighbor; implicitly, if by deeds or words he signifies to a subject that damage inflicted on another will be pleasing to himself; e.g., when Henry II, king of England, was often complaining that he had no peace with Thomas, Bishop of Canterbury, so that the courtiers understood that they would do something pleasing to the king if they took Thomas out of the midst.¹ - But he is not judged one mandating who only ratifies damage already previously inflicted in his name.

¹ Breviarium Rom., Winter Part, On the feast of St. Thomas, lessons 5-6.

n. 518.

(B) Obligations of the one mandating toward the one damaged.

(a) The one mandating is bound to repair all damages which another, by force of the mandate, inflicted upon the neighbor; and all those things which are morally connected with the execution of the mandate, namely those which at least confusedly were foreseen, after all circumstances have been carefully weighed. For he who mandates that some damage be done in his name perpetrates it through another; but he who acts through another is judged to act through himself, and therefore is bound to repair this damage.

I said: by force of the mandate; hence if the mandatary transgressed the limits of the mandate, so that this could not have been foreseen, the one mandating is not bound to repair these further damages, nor therefore is he bound concerning damages which the mandatary inflicted from an error which could easily have been avoided.

(b) If the one mandating revoked the mandate, and this revocation became known to the mandatary before the damage was inflicted, he is not bound to restitution, provided he is only one mandating and not one counseling (below, n. 523); because when such a revocation is known, the mandate is now extinguished, and if the mandatary inflicts damage, it is perpetrated in his own name. - But, if the revocation did not become known, the damage truly follows from the mandate.

n. 519.

(C) Obligations of the one mandating toward the mandatary. As regards damages which the mandatary himself suffers, the one mandating is bound to repair them if by force, fear, fraud, or another unjust mode he compelled the mandatary to do this, or also if he expressly obligated himself to furnish such indemnity; in the former case he truly is the cause of this damage; in the latter he is bound to reparation by force of contract; - otherwise, the one mandating is not bound: for he who spontaneously, or for an agreed reward, undertakes some business to be carried out, assumes upon himself the dangers of the execution.

n. 520.

2. On the One Counseling.

(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.

n. 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.

n. 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.

n. 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.

n. 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.

n. 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.

n. 526.

3. On the Flatterer.

The flatterer, or adulator, must be equated with one counseling; for he is one who by praising or blaming another incites him to inflict damage upon a third party; and therefore he is bound to restitution in the same way and under the same conditions as the one counseling. - But if he approves damage already inflicted, of itself he is not bound to reparation; otherwise, however, if this approval induces another to new injuries, or efficaciously impedes him from repairing an injury.

n. 527.

4. On the One Consenting.

He is called one consenting who by external approval, by vote, or by sentence truly cooperates in damage.¹ But a vote can be twofold: consultative and decretory; here the question concerns a decretory vote, which has the force of precept or law: the former is referred to counsel. - Thus, senators, deputies, and others who by their vote establish an unjust law; judges or jurors who pronounce an unjust sentence.

¹ Therefore here the question is not about any consent whatever furnished to an unjust thing, but about that which is the efficacious cause of the damage.

Now those consenting are bound to restitution as often as they have efficaciously and culpably violated the strict right of another. The reason is that, by making an unjust law or sentence, they concur in the damage inflicted in almost the same way as those mandating.

n. 528.

But the question is when those consenting can be judged the efficacious cause of the damage. Now:

(A) If all at the same time cast an unjust vote, whether by secret ballots, or by rising, etc., all equally concur in the damage, and all are bound to restitution.

(B) The same must be said of those who cast unjust votes from mutual conspiracy, because by a common vote they concur in the damage.

(C) If votes are given successively and by living voice: (a) certainly the first who emit votes are bound to restitution until the number necessary for establishing the law is completed, even if they foresee that others who will consent will not be lacking; for they truly have influence in the law and therefore in the damage; - (b) as regards those who, after the sufficient number has been completed, give votes, a distinction must be made: if the votes are revocable, they are bound to restitution, because the damage is not consummated, and therefore even the last truly cooperate in it; but if the votes are irrevocable, the damage is now complete, and therefore the last probably and speculatively are not bound to restitution, because they are not the efficacious cause of the damage. But in practice, at least for the most part, all the suffrages have influence upon the effect by way of one thing, insofar as they add strength to the executors of the law and render its revocation more difficult; wherefore generally they are bound to reparation.

(D) If before the law or sentence is made, the unjust vote is efficaciously revoked, no place is given to restitution, because now no efficacious cooperation is furnished.

(E) But those who give a vote for a thing less just, not intrinsically evil, when this is the only means of averting a greater evil, do not sin, nor therefore are they bound to restitution.¹

¹ Lehmk., n. 800; Genicot, n. 540; Noldin, n. 481.

n. 529.

Corollaries. (A) In modern societies, in which matters of the greatest moment are determined by the vote of senators and deputies, the duty is incumbent upon all these of emitting votes at the opportune time, so that they may promote the good of the commonwealth and avert the evils which wicked citizens are contriving: therefore not only do those sin gravely who cast a vote for an unjust law, but also those who, without just cause, from grave negligence or fear of displeasing the Government, abstain from giving votes, or are absent at the time of voting, when they can foresee that by silence of this kind grave damage is threatening the public good or some body of citizens; indeed they are bound to restitution, as often as by this way of acting they can be called the efficacious cause of some injustice.

n. 530.

(B) The same duty is likewise incumbent upon those electors who choose senators or deputies, as often as it is foreseen that unjust laws are going to be proposed and established; and this indeed today for the most part ought to be foreseen; for there are many who are attempting utterly to overthrow the religious and social order; and unless upright men perform their duty, form political associations, and at the opportune time elect honorable deputies, soon injustice will prevail everywhere. Therefore citizens who enjoy the right of suffrage, and do not use it because of negligence or vain fear, today of themselves sin gravely, because negatively indeed, but efficaciously, they concur in establishing unjust laws.¹ Not a few are subjectively excused from grave sin, because they do not think about the consequences of their negligence; but upon priests, and laymen who understand the matter better, the duty is incumbent of instructing them, prudently indeed, but unceasingly, so that good citizens, with forces united and federated, may be able to break the audacity and injustice of wicked men.

¹ Concerning this see Ami du Clerge, Le peche electoral, t. XXV, 1903, p. 979, and t. XXVI, 1904, p. 2.

n. 531.

5. On the Receiver.

The receiver, or one furnishing refuge, is he who furnishes refuge or security to an evildoer, as such, or receives and keeps the things taken away by him. - I said: as such, because if he receives him not as an evildoer, but as a blood-relative, or friend, or by force of office (e.g., if the question concerns an innkeeper), and does not intend to furnish him aid, he is not properly a receiver.

Now the receiver is bound to restitution insofar as he makes the evildoer more secure in unjustly inflicting damage upon others, or is the cause why goods unjustly taken away are not restored.

n. 532.

Hence the following are obliged to restitution: (a) merchants and innkeepers who accept from children of families, servants, etc., money or things secretly taken away from parents or masters, because thus they favor thefts of this kind; (b) advocates who in a civil matter patronize manifestly unjust causes, or, in a criminal matter, an unjust accuser; but not those who, in a criminal trial, defend evildoers when these ought from the law itself to have a defender; (c) those who furnish help to a thief or another evildoer, by watching and warning if perhaps persons occur who are going to denounce or impede the crime; (d) tavern-keepers who receive thieves and conceal them lest they be seized.

n. 533.

6. On the Participant.

Notion. A participant can be twofold: in the booty and in the unjust action. If the former, he must restore that which he unjustly received, as will be said below concerning the possessor of another's thing; here we treat only of the participant in an unjust action.

Now cooperation of this kind is called formal, or intentional, if the one cooperating concurs both in the action and in the unjust intention; material, if he concurs only in the wicked action. Thus he who hands over the keys of a house to a thief so that the latter may more easily steal cooperates formally; but materially, if he does this only for this end, that he may avoid his own damage, death or a wound.

n. 534.

Principles. (A) He who formally cooperates with another in an unjust action, and indeed efficaciously, is bound to restitution: for then he is the unjust, efficacious, and culpable cause of the damage inflicted, since he intends to do injury and in fact does it.

The specific malice of cooperation is taken from the nature of the sin to which concurrence is furnished, and therefore in confession this sin must be declared.

n. 535.

(B) He who materially cooperates in a damaging action is excused from sin and from the obligation of restitution, provided the act is not intrinsically evil, and moreover there is a proportionate cause for cooperating. This is clear from what was said where cooperation in general was treated.

Hence it is not licit to participate immediately in the killing of an innocent man, since this action is intrinsically evil; - nor in his mutilation, except for preserving his life or health, from what was said above, n. 308.

It is more probably licit materially and immediately to cooperate in theft in order to avoid an evil of a higher order, e.g., death; for then the owner, if he were to oppose, would not be reasonably unwilling. - Indeed this is licit from a grave cause, if the one cooperating can and wishes to repair the damage going to follow from his cooperation, - or if the damage is light, - or if equal damage would be inflicted even if cooperation were omitted: for in these cases he is not judged reasonably unwilling.

n. 536.

7. On Negative Cooperators.

(A) Notion. There are three negative cooperators: the silent, the one not opposing, the one not revealing. (a) The silent person is he who, before damage is inflicted, does not impede it, at least by warning, when he can and ought; e.g., the guard of a house who, when the thief arrives, does not cry out. (b) The one not opposing is he who, while evil is being inflicted, does not impede it, when he is bound to this, e.g., soldiers who do not prohibit an unjust aggressor from killing an innocent man. (c) The one not revealing is he who, after damage has been inflicted, does not denounce the damager, when he can and ought to furnish this; e.g., customs guards who say nothing about those who defraud taxes.

n. 537.

(B) General principle: Negative cooperators must restore when these two things concur: namely when 1. from justice (i.e., from office or from pact) they are bound to impede the damage; and 2. they can impede it without a graver inconvenience.

For, if they are bound not from justice, but only from charity or another virtue, they indeed sin against these virtues, but not against justice, and therefore they are not bound to restitution. - Now from justice those must impede damage who obligated themselves to this by some pact, or contract, whether explicit or implicit, or who undertook a function, or office, by force of which they are bound to prohibit damage: for there is then a quasi-contract.

Moreover all these are not judged to obligate themselves to impeding damage with the greatest inconvenience to themselves, e.g., with danger to life, unless the public good is in question, which sometimes demands the sacrifice of one's own life.

n. 538.

(C) Principal applications: - (a) A confessor who, even from grave negligence, neglects to warn the penitent about making restitution is not bound to restitution, unless his silence is equivalent to positive counsel, e.g., if the penitent asked the confessor to warn him concerning the duty of restoring; for the confessor, by force of his function, is indeed bound to provide for the spiritual good of the penitent, but not to guard against the temporal damage of others. - But if he knowingly gave a false response, he is bound to restitution as one counseling from office.¹

¹ Concerning this the matter is treated more fully in the Treatise on Penance, n. 415-416.

n. 539.

(b) Parents, or superiors, who suffer damage to be inflicted upon the neighbor by children or subjects, must restore: when by their silence they moved the children or subjects to inflicting damage; or when the children are not yet masters of themselves. - Otherwise, by natural law, they are not bound to restitution; for from office they indeed have care of their own, but are not bound to protect the goods of others. But civil law proceeds further in many regions at least.

n. 540.

(c) The owner is bound to repair damage inflicted by animals of which he has ownership, or use, or custody, when it was caused by his grave negligence; for upon him is incumbent the care of watching lest they harm others.

(d) Servants who are hired as guards of things, e.g., guards of houses, vineyards, and forests, are bound to repair damage inflicted upon those things which have been committed to their care; for by contract they obligated themselves to averting this damage. - As regards servants who did not explicitly undertake such a burden, it is controverted whether, by not impeding damages inflicted by strangers, they are bound to restitution; many indeed affirm, because, by entering the household, they are judged implicitly to undertake the obligation of defending domestic goods against strangers;¹ yet not a few authors, especially modern ones, probably deny this, because, according to our customs, servants obligate themselves in justice to nothing except faithfully carrying out the special function committed to them. - In practice, attention must be paid to the usage and customs of places, and also to the psychological dispositions of servants; nevertheless, according to all, from charity they are bound to impede this damage.

¹ It is said against strangers; for unless from special office they preside over the whole house, they are not judged to obligate themselves to protecting the goods of the master against other servants: for this would be too odious.

(e) Customs guards who from grave negligence do not collect taxes are bound to restitution, because by force of their function they must collect these at the opportune time, and denounce those defrauding them, unless the question concerns things of lesser moment, for which tribute is not usually rigorously exacted.

n. 541.

(f) On which occasion it is asked whether he is bound to restitution who received money from a thief in order not to denounce the guilty person. - If the question concerns him who is bound from office to denounce, he must restore to the injured owner, because he truly is an unjust cooperator; - the same must be said if the money accepted is stolen, because then he is a receiver; - outside these cases, it is controverted: some deny with Lugo,² because then charity indeed is injured, but not justice; others affirm,³ because to receive money and be silent in this case is nothing other than to furnish help and security to the thief. We embrace this latter opinion as more probable, consonant with natural equity and the public good. But restitution must be made not to the thief, but to the injured owner or to the magistrates.

² Lugo, disp. XIX, n. 102; Genicot, n. 547.

³ Crolly, t. III, n. 703.

n. 542.

II. On the Mode by Which Cooperators Must Restore.

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.

n. 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:

n. 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.

n. 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.

n. 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.

n. 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.

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.

n. 548.

1. 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.

n. 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.

n. 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.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 10 passages (filed under the subtopics)

Vol. II, Bk. II, Tractate V: On Justice, Ch. VIII, Quasi-Delict, and Fault to Be Furnished

n. 534.

I. On Delict. ^¹ 1. Civil delict must be carefully distinguished from penal or criminal delict. Penal delict is defined by canon 2195, § 1: "An external and morally imputable violation of a law, to which a sanction has been added." The sanction can be defined either perfectly, as if for theft a penalty of six months' prison is established, or less perfectly, as if, for the various circumstances of the case, the penalty is permitted to be determined by the judge between a maximum and minimum limit; and it can also, at least in the canonical forum, be fully committed to the judgment of the judge, as when it is said: "let him be punished with suitable penalties." - Concerning penal delict, this holds: no penalty without law. According to this, the Code, c. 6, 5°, declared abrogated all penalties of which no mention is had in the Code.

But civil delict is every illicit and damaging fact committed with the intention of harming.

An illicit fact is required, because "no one seems to act by deceit who uses his own right" [Law 55, Dig. De regulis iuris (L, 17)].

A fact can be damaging because of emergent damage, or a positive detriment by which someone begins to have less than he had; and because of ceasing gain, by which someone has less than he would have had without the illicit fact.

Damage can be of the material order, whether it affects a thing or the body, so that it is estimable by a price, and it can be of a superior order, in reputation, in the soul, in affections, etc. It is certain that every economic damage is at least to be compensated with money. Sometimes also damage of a superior order can be repaired in its own order: disease by recovered health, reputation by an efficacious retraction. But does moral damage, as such, give place to pecuniary reparation? The matter is not so settled among jurists. Yet tribunals are accustomed also to establish that certain moneys are to be paid for damages of the body itself as such, or for damages of the moral order.

The intention of harming supposes a voluntary fact commanded by a deceitful or malicious will.

But reparation of damages on account of delict can be sought either from a contentious tribunal, and then as the principal object of the suit, or also from a criminal tribunal, as an accessory of the criminal process. By the name civil party in a criminal cause is called the private person who seeks such reparation of damages.

II. On Quasi-Delict. Quasi-delict excludes the intention of harming, but arises from necessary diligence (positive or negative) having been omitted, which, had it been applied, the damage would not have been inflicted.

Diligence is imposed either immediately concerning the very things to be preserved, or concerning animate causes which can beget damage: animals, children, persons whose labor had been hired.

The quasi-delict itself supposes a fact voluntary in this sense, that by greater caution or attention the damage could have been avoided. But defect of advertence does not take away quasi-delict.

¹ On the whole argument of this chapter, cf. Pacifici Mazzoni IV, p. 218 ff., 344 ff.; and Colin et Capitant, II, 360-403.

n. 535.

III. On Fault to Be Furnished. 1. Fault is distinguished as theological and juridical. Theological fault is the sin itself by which God is offended; juridical fault consists in the omission of diligence due according to the laws. This fault can be broad or gross: omission of common diligence, i.e. the diligence customarily applied by all; slight: omission of the diligence which an alert man is accustomed to apply, which can be divided into slight fault in the abstract and in the concrete, according as abstraction is made from the person who is blamed or not; very slight: omission of exquisite diligence.

A distinction of grades of this kind is found in every law. Thus, in England, Slater, A manual, I, 409, alleging Chitty, The Laws of Contracts, distinguishes ordinary neglect, gross neglect, slight neglect.

From delict or quasi-delict, the furnishing of very slight fault is owed. From contract the general rule is that slight fault in the abstract is furnished. This obligation is increased or diminished according as the contract is in favor of the debtor or of the creditor, or according as the contract itself has been imposed by necessity: as in a "miserable" deposit, i.e. one which had to be made from an unforeseen event.

In the Canadian Code Q., a contract never imposes more than the diligence of a good father of a family.

A fortuitous case is not furnished of itself, unless a delict has intervened, or the debtor has been in delay (German Code, 287). The German Code treats this argument more fully than the rest, arts. 276-292 and 823-853. Cf. also Swiss Code of Obligations, arts. 41-61.

In the canonical forum, a fortuitous case is not furnished; however, the imputation of omitted diligence is committed to the prudent judgment of the judge (c. 2203, § 2), almost as in art. 43 of the Swiss Code of Obligations. At the same time, however, even in ecclesiastical matter, just civil laws concerning contracts are to be observed. Therefore an ecclesiastical judge will be able and obliged to urge those laws.

n. 536.

In the forum of conscience this perpetual rule can be proposed: before the sentence of the judge, a grave obligation of furnishing fault requires, besides grave matter, grave theological fault, unless the furnishing of a fortuitous case or of slight fault has been formally promised. But the gravity itself of fault in a contract depends on the diligence which, expressly or tacitly, greater or lesser according to the various contract, was promised, and on its voluntary omission in more or less notable matter. But the diligence which is imposed by civil law is not yet judged to have been promised by the parties. The circumstances are to be consulted. And in general, if, conscious of danger, in dangerous actions you omit that diligence of precaution which men of the same condition are commonly accustomed to have, you sin gravely (unless perhaps you had already determined to receive the damages upon yourself) and are held for the damages which follow. In doubt concerning fault, you are not held.

After the sentence of the judge, the money which has been imposed on account of mere juridical fault is owed in conscience, provided this fault at least has truly been committed.

Therefore, if in fact the diligence was applied for whose omission someone has been condemned to repair damages, that sentence, inasmuch as it is founded in an error of fact, begets no obligation of conscience, so that after its coerced execution there is place for occult compensation.

n. 537.

Summary

I. Civil delict is an illicit and damaging fact committed with the intention of harming; quasi-delict is the same fact, without the intention of harming, committed with juridical fault.

II. Fault to be furnished. According as exquisite diligence, or that of an alert man, or common diligence is required, the fault to be furnished is called very slight, slight, gross.

Damages of omitted or delayed execution, or of another's damaged thing, in the internal forum, always, before the sentence of the judge, are estimated according to theological fault: this must be grave in order that a grave obligation, even in grave matter, arise; but in the external civil forum, they are estimated according to juridical fault, or the omission of diligence which positive law imposes.

From delict or quasi-delict, very slight fault is juridically to be furnished. A fortuitous case is generally not furnished.

In the canonical forum, imputation is made according to the prudent estimation of the judge, unless the civil law itself must be applied.

Vol. II, Bk. II, Tractate V: On Justice, Ch. III, § 2. On the Restitution of Cooperators

n. 670.

I. - On the Measure of Restitution

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.

n. 671.

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

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.

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.

n. 672.

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.

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.

n. 673.

From the things said you will gather these applications.

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.
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.
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.

II. - On the Order to Be Observed in Restitution Among Cooperators

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.

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.
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.

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.

Summary

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.

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

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 9 passages

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

310. Principle I. Those cooperating are bound to restitution insofar as they efficaciously influence the damage, because the whole obligation of making restitution arises from an influence upon damage (C. Civ., a. 1382; C. Pen., a. 59-63, a. 73); and therefore they are bound to the reparation of every and only that damage of which at some time they were the unjust, efficacious, and culpable cause (prop. 39 condemned by Innocent XI; Rom. I, 32). Whence:

To induce the obligation of restitution, it is not necessary that the act of cooperation be a condition sine qua non of the existence of the damage, so that, if the cooperation had been lacking, the damage would not have existed, but it suffices if the action of cooperating has an influence upon the effect produced. Therefore, from the fact that even without some cooperation the damage would have been inflicted by the executor, it does not follow that the cooperator is exempted from the obligation of making restitution.

Hence a) if two agree in cooperating, they are bound to restitution, even if with one alone acting the injustice would have been or would not have been committed;

b) a cooperator who in reality influences the injustice is not excused from the obligation of making restitution from the fact that, if he were lacking, others would have been cooperators.

On the contrary, a cooperator is not bound to restitution if in fact he does not influence the damage, although of itself his action was apt to produce this influence, for example, if he to whom he gave counsel of stealing was in no way moved by that counsel, since he was already determined to act by himself or by others: for then the counsel stands merely concomitantly; and although the one giving that counsel sinned against justice, nevertheless he inflicted no damage nor in fact cooperated in the damage, and therefore he is not bound to make restitution for anything.

From these things it follows: a) if one cooperating moves only to the mode of injustice, he is not bound to make restitution unless from this modality a new damage arises; in which case he is bound only for the excess of damage;

b) if someone by his vote concurs in damage to be unjustly inflicted, he is not bound to make restitution if his vote accedes to damage already caused by others, but he would be bound if sufficient votes of the others had not preceded.

He who by his cooperation contributes a concurrence not to the whole damage but to only part of the damage, by partiality of effect, is bound to restore only that part.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. III, § I. On One Commanding · Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. III, § II. On One Counseling · Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. III, § III. On One Consenting · Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. III, § IV. On the Flatterer

Thus he who, while others are already robbing or setting a house on fire, also steals something or sets another part on fire.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 13 passages (filed under the subtopics)

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. III, § I. On One Commanding

n. ¶759.

- One commanding or mandating is called he who induces another, whether by explicit or implicit command (for example by silence, which is equivalent to consent), as one set over him; or by force, threats, or prayers; or by express or tacit contract, to inflict damage in his name, that is, for his utility or favor (and thus he is distinguished from one counseling), upon another.

One commanding is bound to repair every damage commanded and inflicted by force of the mandate; otherwise, however, if he only ratifies damage already done. The reason is that in the former case, but not in the latter, he efficaciously influences the damage.

n. ¶760.

Questions. - Query 1° Is one mandating bound to restitution if he revoked the mandate before the damage was inflicted?

Resp. Negatively, if the revocation becomes known to the mandatary before execution of the mandate; otherwise, if for any cause whatever it does not become known at all or becomes known too late; because in this case, but not in that one, he influences the damage (n. 750. q. 4°).

Query 2° Is one mandating bound concerning damages which come to the mandatary in the execution of the mandate?

Resp. Affirmatively, if the one mandating compelled the other by fraud, force, or unjust fear, or if an agreement concerning indemnity preceded; but not even in this case is he bound concerning damages coming to the mandatary by his own fault or by accident (which no one furnishes), unless he also promised to furnish against accident. Otherwise, negatively.

Query 3° Is one mandating bound to repair damage which the executor from invincible error inflicted upon another?

Resp. Negatively, provided the error does not almost follow spontaneously from the mandate itself because of the difficulty of the thing commanded (Mar. p. 280. n. 86). The reason is that the true cause of the damage is the error of the mandatary, not the mandate.

n. ¶761.

- Query 4° Whether and when must one mandating also warn him whom he commanded to be harmed?

Resp. Negatively, at least from justice, if he has already efficaciously revoked the mandate. Otherwise affirmatively, provided a much greater inconvenience, for example danger to reputation or liberty, does not threaten him from the warning. For what removes the obligation of repairing damage also removes the obligation of guarding against it. But the obligation of furnishing for damage inflicted is to be fulfilled as soon as it can be. Mar. p. 279. n. 84.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. III, § II. On One Counseling

n. ¶1.

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.

n. ¶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

n. ¶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.

n. ¶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

n. ¶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

n. ¶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

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. III, § III. On One Consenting

n. ¶767.

Principles. - I. One consenting is bound to restitution whenever knowingly and freely he either gives consent or carries a vote, by which he efficaciously influences the damage of another. I say: influences; because one who, seeing damage done or hearing that it has been done, only approves it, without moving another to harming, sins only internally against justice. I say: efficaciously; because if he did not efficaciously influence the injury, he would not be bound to restitution. Resolve the same if, fraud or special agreement being set aside, by his vote he impeded another from the obtaining of a good to which he had no right.

II. He is not bound concerning the damage who authentically revokes a sentence or vote previously given before the wickedness is consummated; nor one voting in good faith, although, as was said above n. 749. q. 3°, when the error is detected he is bound from justice to revoke his vote, if time permits him this and he can do it without grave inconvenience.

n. ¶768.

Questions. - Query 1° Is one consenting bound to restitution who gives an unjust vote if other votes already sufficient for the damage are not lacking?

Resp. 1° It is certain that all consenting are equally bound to restitution if they gave votes by agreement, since, after conspiracy has been entered into, there is one moral action of all. Likewise if they are carried secretly.

Resp. 2° It is also certain that all consenting contract the obligation of restoring when they carried the vote at the same time; because, since none was then earlier or later, the sentence resulting from the sum of the votes is deservedly attributed to the individual voters.

Resp. 3° It is likewise certain that those are not excused from restitution who first give a vote before the number has been completed, even if they foresee that others who consent will not be lacking, because they truly influence the damage. For although without them it was to be inflicted, nevertheless through them it is in fact partially inflicted. - Thus commonly. - Lugo.¹

Resp. 4° But whether, conspiracy and simultaneous collection of votes being set aside, the last voters can be excused from the obligation of restoring when the number of votes required for the definition of the business has already been fulfilled, is controverted. S. Alph.,² Lugo,³ and several others affirm, because voters of this kind are in no way the cause of the damage, since it had already been sufficiently prepared and determined by others. - I say: "for the definition of the business." For it would be otherwise if the vote were consultative, or (because by it the number of votes is increased) if it were foreseen to influence the sanctioning of an unjust thing which otherwise would be prohibited. (p) p. 475.

n. ¶769.

- Query 2° In doubt whether your vote was among the earlier and necessary ones for inflicting the damage, are you bound to restitution?

Resp. The true opinion, according to S. Alph.,¹ teaches that anyone is bound according to proportion; and when the others do not restore, that you are bound to the whole. The reason of the former is clear of itself. The reason of the latter is that by your vote at least you made worse the right which the injured party had of recovering from the other voters the damage inflicted. The case would be if the votes had been cast secretly.

Query 3° Do you contract the obligation of restoring if you do not cast a vote when you can cast it?

Resp. 1° Negatively, if the right of giving the vote was conceded to you for your mere favor or grace; because then you inflict no injury upon another.

Resp. 2° Affirmatively, if it would have to be given from office, and its omission was the efficacious cause of grave and unjust damage. - Lugo and others commonly. (l) p. 482.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. III, § IV. On the Flatterer

n. ¶770.

- A flatterer is called one who by praising, flattering, whispering, censuring, or exaggerating injury moves another to causing damage. Concerning the flatterer these things must be held:

1° He who has induced another to inflict damage by proposing praise or otherwise ignominy to follow is bound concerning the damages. For such cooperation has the character of counsel, namely when motives for acting, of themselves commonly efficacious, are proposed. Wherefore the flatterer is subject to altogether the same obligations as one counseling, concerning which see above n. 762 and following.

2° Those who so represent to a man affected by injury the magnitude of this injury that he, being moved, takes revenge, are bound to restore, provided they noticed at least that damage would probably follow.

3° But he is not bound to restitution who approves or ratifies a deed already perpetrated, unless he is the cause why restitution is not made, or new damages are inflicted.²

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 6 passages (filed under the subtopics)

Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 1, 3. On The One Consenting · Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 1, 4. On The Flatterer · Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 1, 5. On The One Providing Recourse · Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 1, 6. On The Participant · Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 2. On Negative Cooperation · Vol. II, Tr. XI, Sect. I, Q. III, Ch. IV, Art. II, § 2, Or On Unjust Damaging

Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 1, 3. On The One Consenting

n. 104.

104. Consent is sometimes taken for the approval of some deed. Thus, e.g., an irreligious man, hearing that iniquitous laws have been passed against the Church, exclaims: This has been done well. I plainly consent. Such consent of itself in no way flows into the damage inflicted; nevertheless per accidens it can cause unjust damaging, because iniquitous legislators, seeing the consent of the people, are made more courageous in establishing wicked laws and do not revoke iniquitous laws already passed. In the present place we speak of consent which of itself damages; and then the one consenting is said to be he who by his external approval, vote, or sentence truly and efficaciously cooperates in damage to the neighbor, e.g., a juror,⁴⁹ who with others issues an unjust sentence; a deputy who by his vote with others establishes an iniquitous law (e.g., concerning ecclesiastical goods to be seized); an elector who with others chooses someone unworthy for an office or benefice.

Here again the general principle announced above must be applied, namely, the one consenting is bound to reparation of the damage if he has truly, efficaciously, and formally cooperated by his consent in the damage. From this principle the following corollaries flow:

⁴⁹ Commonly, der Geschworene, le juré.

Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 1, 4. On The Flatterer

n. 106.

106. A flatterer or adulator is said to be he who, by praising, blaming, flattering, moves another to damaging.

Thus, e.g., he is a flatterer who mocks the patience of the injured person; who exaggerates the injury inflicted, saying repeatedly that things of this kind are not to be borne by a noble man; who describes the vileness of the offender, etc., and does all these things to instigate another to revenge. Likewise he is a flatterer who proclaims the utility of theft or damaging. Therefore he who by these or similar modes truly, efficaciously, and formally moves another to unjust damaging is bound to restitution. Nor is it necessary that he directly intend the damage; it is enough that he indirectly wills it, foreseeing that it will follow from his flattery. The things said above concerning the one counseling hold also concerning the flatterer, since he is nothing other than one counseling in a particular mode, namely by flattering, etc.; hence the flatterer is subject to the same obligations as the counselor, provided nevertheless that he truly flowed efficaciously into the damage of another.

Sometimes he who approves or praises an unjust work done is called a flatterer. It is plain that approval of this kind does not induce the obligation of repairing damage, unless nevertheless from it the damager was induced to new injuries or was instigated not to repair the injury already done.

Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 1, 5. On The One Providing Recourse

n. 107.

107. The one providing recourse, or receiving, is he who provides refuge to an evildoer or thief as such,⁵¹ either a) so that he may escape safely from those pursuing, or b) so that he may be able to deposit stolen goods. I have said as such, because if he receives and favors him not as a thief or evildoer, but as a friend, or kinsman, or one worthy of mercy, he is not a receiver or one providing recourse. By deserved right receivers of evildoers of this kind are punished gravely by civil law; for they often cause greater damage than the evildoers or thieves themselves.⁵² But in the forum of conscience receivers are held to repairing damages, insofar as a) they render evildoers more secure for doing injuries, and b) they are the cause why the goods taken away are not restored. Receivers of this kind are especially several so-called "dealers in antiquities"⁵³ and dealers in old things,⁵⁴ who knowingly buy from servants, sons of families, and other men things taken away by theft. As to the mode of restitution, these receivers are to be treated like possessors in bad faith, or sometimes (if the thing bought is not certainly taken away by theft) like possessors in doubtful faith.⁵⁵

The one providing recourse not rarely also participates in the thing unjustly taken away. But then he is held to restitution not only as one providing recourse, but also as one participating in the prey; concerning this there will immediately be discussion.

⁵¹ Commonly Hehler, receleur, receiver of stolen goods.

⁵² Hence the common adage: "Without a receiver, no thief!" "If there were no receiver, there would be no thief."

⁵³ Altertumshändler, antiquaire.

⁵⁴ Althändler, Trödler, brocanteur.

⁵⁵ Cf. below n. 216 sqq.

Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 1, 6. On The Participant

n. 108.

108. The participant is twofold: a) a participant in the prey, who receives part of a thing unjustly taken away; b) a participant in the action, who helps another damager in an unjust action, e.g., by providing tools to a thief, by keeping watch, etc.

a) The participant in the prey ought to restore all those things which he himself received from the thief, unjustly taken away. Therefore he is to be treated as a possessor in bad, doubtful, or good faith.⁵⁶

b) The participant in an unjust action ought to repair the damages of which his own action is the efficacious and culpable cause. But it is altogether required that theological fault have been present; otherwise the obligation of restitution does not arise, and this especially if the cooperation was only material.⁵⁷ For the participant is excused from reparation of the damage caused, provided that the required conditions are present, namely 1. that the act not be intrinsically evil; 2. that it be elicited from a relatively grave cause; 3. that the good effect intended by the cooperator arise immediately from a good or at least indifferent cause.

In practice the quantity of reparation to be made is often determined with difficulty. Let this be the general rule: if the cooperation was so necessary that without it the damaging action would have been impossible, then the cooperator is held to repair the whole damage (in solidum).⁵⁸ But if even without the cooperation the damage would have been caused, the cooperator is held to repairing only a part of the damage, and indeed according to the quantity of influence.

Authors are accustomed here to raise the question whether those are excused from fault and restitution who, on account of fear of grave detriment, cooperate in an unjust damaging action. The solution of this question cannot be given otherwise than by recurring to the principles concerning the indirect voluntary. But difficulty exists in the right application of those principles. Authors teach rather commonly: 1. that it is never lawful immediately and positively to cooperate in the unjust killing of another; 2. that it is never lawful immediately to cooperate in the unjust grave wounding of another. But if it is a question of damaging in goods of fortune, then authors do not agree. All indeed concede that remote cooperation in damaging is licit, provided that a proportionately grave cause is present. Thus, e.g., on account of fear of death or of another very grave evil, it is lawful to hold a ladder for a thief climbing up, to hand over to him the keys for opening a chest, to carry away prey already taken, and similar things.⁵⁹ Billuart⁶⁰ and the Salmanticenses⁶¹ teach that proximate cooperation in unjust damaging is illicit and intrinsically evil; on the other hand, St. Antoninus,⁶² Sporer,⁶³ St. Alphonsus,⁶⁴ Lehmkuhl,⁶⁵ and several others teach that from a very grave cause, e.g., fear of death, it is licit, and indeed rightly. For the taking away or damaging of another's thing is not unjust except insofar as the owner is reasonably unwilling. But the owner is not reasonably unwilling if I, placed in very grave necessity, cause him damage in fortune, especially if I have the intention of repairing this damage according to my powers.⁶⁶ Cf. the things said above, n. 87, concerning great goods of another to be taken away in extreme necessity.

⁵⁶ Cf. below n. 209 sqq.

⁵⁷ Cf. the things said above (I, n. 52 and 618) concerning the indirect voluntary and cooperation.

⁵⁸ What restitution in solidum is, cf. below n. 223.

⁵⁹ Cf. Billuart, De iure et iust. diss. 8, a. 13, § 6, dico 2.

⁶⁰ L. c. dico 1.

⁶¹ Curs. Theol. mor. tr. 21 de praec. decal. c. 8, n. 75, where the opposite opinion previously exhibited is revoked.

⁶² Summ. theol. P. 2, tit. 1, c. 12.

⁶³ De iust. tr. 4, c. 3, n. 41 and 42.

⁶⁴ Theol. mor. l. 3, n. 571.

⁶⁵ Theol. mor. I, n. 1205.

⁶⁶ Cf. St. Alphonsus, Theol. mor. l. 3, n. 571.

Vol. II, Tr. XI, Sect. I, Q. III, Ch. III, Art. II, § 2. On Negative Cooperation

n. 109.

109. Notions. Negative cooperators are those who do not impede damage to the neighbor, although they are held to this from justice. Three modes of this cooperation are assigned, which indeed are materially, but not formally, diverse, namely "mute, not hindering, not manifesting."

a) He is called mute who does not speak before the damaging, and does not forewarn the person to be damaged, when he is held to this from office or contract; e.g., a guard who, when a thief is coming, does not shout and does not warn the owner.⁶⁷

b) He is not hindering who, while damage is being inflicted, does not oppose it, although he is held to this from justice; e.g., a forest guard who does not prevent wood from being cut unjustly.

c) He is called not manifesting who, after damage has been inflicted, does not denounce the damager either to the injured owner or to a superior, although from office he is held to this; e.g., the same forest guard, who indeed knows well the thieves of the wood, but does not denounce them to the public authority.

Principle. Those who from commutative justice are held to impede damage, and do not impede it when they can without grave inconvenience, are held to repair the damage inflicted.⁶⁸

The reason is that in this culpable omission all the conditions of unjust damaging are had; for it is truly, efficaciously, and formally unjust. But it is said: "who from commutative justice are held to impede damage"; for if there is only an obligation of charity, obedience, or another virtue, there is indeed sin, but no obligation of reparation arises. Now those ought to impede damage from commutative justice who have obliged themselves to this by some explicit or implicit contract. An implicit contract is had in the free undertaking of any duty or office. Then it is said: "when they can without grave inconvenience"; for no one is judged to oblige himself to preventing the damage of another with great inconvenience of his own, unless this is contained explicitly in the contract.

⁶⁷ Billuart, l. c. § 7, explains the three negative modes otherwise, saying: "The mute omits verbal labor toward the damager; the one not hindering, bodily labor toward the same; the one not manifesting, verbal labor toward magistrates or toward owners damaged or to be damaged."

⁶⁸ Cf. St. Thomas, S. theol. 2, 2, q. 62, a. 7; IV dist. 15, q. 1, a. 5, solut. 3.

Vol. II, Tr. XI, Sect. I, Q. III, Ch. IV, Art. II, § 2, Or On Unjust Damaging

n. 227.

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.

Billuart, Summa Summae

Charles-René Billuart, O.P. — 16 passages

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, On the restitution to be made by those who cooperate in unjust damage

Certain difficulties are expounded concerning cooperators in general.

I. Besides him who exercises the unjust action per se and immediately, of whom we have spoken hitherto, there often intervene those who cooperate with the damaging action physically or morally, as he who commands or counsels theft, who lends the thief ladders or keys, and the like.

II. Nine modes are commonly enumerated with the Author, by which one can cooperate in an unjust damaging, comprehended in these verses :