Those who Merely Inflicted Damage

Preliminary note. Damage can be inflicted either with theological fault, or with juridical fault together with or without theological fault, or without any fault. Theological fault is had when someone commits a formal sin, and therefore is culpable before God. Juridical fault is the omission of diligence required by civil law, whether theological fault is added or is not added; in the former case there is juridical fault together with theological fault. But we inquire what things are required, apart from both contract and the sentence of a judge, in order that an act carry with it the obligation of restoring the damage that followed.

Now, in order that an action carry with it the obligation of restoring the damage that followed, it is required: 1° that it was the cause of the damage, and indeed, as is probable, of the damage which the agent willed to inflict; 2° that it was an unjust cause of the damage; 3° that it was theologically culpable.

I. The first condition is that the action was the cause of the damage, and indeed - as is probable - of the damage which the agent willed to inflict. It is said:

1. That the action was the cause of the damage, that is, either physical or moral. For an obligation of repairing damage which someone did not produce cannot be admitted (St. Alphonsus, III, 584). Now:

a) It certainly suffices - which is plain - that the action be a cause per se of the damage, or that the action by its nature be ordered to producing the damage.

b) A merely occasional cause of the damage does not suffice, that is, such a cause as does not itself inflict the damage, but, once it has been posited, another creates the damage; as if someone commits homicide, and that homicide, through an error of the judge to which the murderer gave no cause, is imputed to another. The reason is that in the case the action in truth cannot be called the cause of the damage (St. Alphonsus, III, 584, 635, 536). The same must be said for the same reason about an action which is only a condition without which the damage inflicted would not have occurred.

c) Nor does an accidental cause of the damage suffice, that is, such a cause as by its nature is not ordered to inflicting damage, but, some circumstances being posited, can produce it, as for example a theft which becomes for someone the cause of illness. The reason is that the burden of restoring the damage inflicted does not seem to arise in a case in which the damage must be attributed more to the circumstances of the action than to the action itself (St. Alphonsus, III, 632).

Nevertheless, both as regards an occasional cause and as regards an accidental cause, the case seems to have to be excepted in which the said causes assume the character of cooperation in inflicting damage; on this see the example set forth in n. 1073.

Question. Whether an occasional or accidental cause of damage suffices, if it is posited with the intention that the damage follow.

Response. Sufficiently probably this is denied, because restitution is owed only on account of damage created, with theological fault of course being posited, and consequently only on account of a cause or external act, since that is what creates the damage; hence if anything is lacking on the part of the external cause, the obligation of restitution does not seem to arise, with whatever intention at last the cause may be posited (cf. St. Alphonsus, III, 636). This, however, does not prevent the damage from being imputed to the one positing the cause in this sense: that on account of that damage he offends against charity.

Note. Sometimes it is difficult to determine whether an action is a cause per se or an accidental or occasional cause of damage. Especially there is dispute about example. Moreover, with St. Alphonsus we say that example per se is merely an occasion of damage; nevertheless, with attention paid to circumstances, it can be equivalent to counsel and therefore to a cause per se (II, 44, 4°; 45, at the end).

2. Sufficiently probably it is required that the action was the cause of the damage which the agent willed to inflict. Otherwise the damage actually inflicted was in no way willed, and therefore cannot be imputed to the agent. To this opinion adhere St. Alphonsus (III, 628, 629; Homo Apostolicus, tr. 10, nn. 84, 85); De Lugo;¹ La Croix;² Sporer;³ D'Annibale;⁴ Aertnys-Damen;⁵ Marc.⁶

Corollary. He who culpably inflicted damage on some person, for example Peter, while willing to harm another, not that person - as if someone set fire to the house of Paul his friend, thinking it to be the house of Peter his enemy - is sufficiently probably not bound to restitution. The reason is that the arsonist was not the cause of the damage which he willed to inflict, but of damage which he did not will to inflict.

Objection. The arsonist willed to harm some man; this suffices for inducing the obligation of restitution.

Response. He willed to harm some man, whoever he was: I deny; he willed to harm Peter, who is some man, but not Paul: I concede. But in fact he harmed Paul. Therefore the damage in fact inflicted was not willed; and this is sufficiently probably required in order that the obligation of restoring arise.

¹ Disp. 18, n. 86.

² Theologia moralis, l. 3, p. 2, n. 200.

³ Theologia moralis super Decalogo, tr. 4, c. 2, n. 139.

⁴ Summula Theologiae Moralis, p. 2, l. 3, nn. 100 and 232.

⁵ Theologia moralis, I, n. 767, q. 2°.

⁶ Institutiones morales S. Alphonsi, I, n. 950, q. 4°.

II. The second condition is that the action be an unjust cause of the damage. Thus it is not enough that someone causing damage act illicitly or against charity, but it is required that by justice he be bound not to cause the damage. This condition is lacking, for example, in him who, with the things to be observed having been observed, kills an unjust aggressor, and this indeed even if, by killing him, with attention paid to the circumstances, he sinned against charity.

Question 1. Whether he acts unjustly and is bound to restitution who, after a cause of damage has been inculpably posited - for example, after another's house has been burned without fault - does not prevent the damage.

Response. Affirmatively; for just as justice prohibits me from positing a harmful action, so also it must command that I take precautions against the damage that will follow from an action already posited. Make exception if someone cannot prevent the damage without his own damage greater than, equal to, or grave relative to the damage of his neighbor (St. Alphonsus, III, 564, 994; VI, 621).

Question 2. Whether he acts unjustly, and is bound to restitution, who destroys or consumes a thing, for example foodstuffs, that certainly would perish while with the owner, for example in a fire.

Response 1. If he destroys or consumes a thing already placed in danger, he does not act unjustly, because in that case the thing is considered of no value to the owner himself (St. Alphonsus, III, 620). But the resolution holds even if the one thus acting spared his own goods, since the owner suffered no damage. Nevertheless, the case will not easily occur in such a way that nothing is to be restored; because, says De Lugo,¹ "if someone could, if he wished, snatch the thing away, then the thing itself was not inevitably going to perish; therefore he ought in justice to pay something, namely as much as could be found and offered for the thing placed in that danger."

Response 2. If he destroys or consumes a thing soon to be placed in danger, a distinction must be made. The obligation of restitution is absent if the danger was certainly and commonly foreseen, because then by common estimation the thing was of no value to the owner. It must be said otherwise "if at the time the damage was given there was no knowledge of the destruction or future danger. The reason is that, since that danger was unknown, that thing was truly worth as much among men as if it had not later been going to perish."

Response 3. If someone destroys or consumes a thing rescued from danger, for example from a fire, he is bound to restitution, because a thing withdrawn from danger cries out for its owner. And, for the reason given, this holds, others denying it, even if the thing is immediately consumed. For the rest note that charity alone obliges someone to rescue another's thing from danger.

¹ Disp. 18, n. 146.

III. The third condition is that the action be theologically culpable, that is, a formal sin. The reason is that an act posited without sin, and therefore subjectively licitly, cannot carry with it the burden of repairing harmful effects that followed from it. There is added that the obligation of restoring has in some way the character of a penalty. But the obligation of a penalty is not contracted per se, or by the force of the act admitted alone, without sin (St. Alphonsus, III, 550). Thus of itself merely juridical fault does not suffice; this nevertheless does not prevent someone, when merely juridical fault has been admitted, from being able to be held to restitution by force of a judge's sentence or of a contract (n. 1009).

Moreover, sufficiently probably a formal sin against justice is required, because otherwise formal injury is not had. But the fact that someone did not know that injustice carries with it the obligation of restoring does not prevent the obligation from arising. For this arises from the very nature of justice culpably violated.

Finally, much more probably a perfectly voluntary act is required, so that a semi-deliberate act, whether there is question of light or grave matter, does not suffice. Only a perfectly voluntary act, or one plainly imputable, can induce the obligation of repairing effects that followed from the act; just as only a perfectly voluntary contract and only a perfectly voluntary vow can beget obligation. But a semi-deliberate act must be imputed to misfortune equally or rather than to the agent (St. Alphonsus, III, 552). "Whence it follows that he is free from every restitution who, inflamed by sudden anger, kills a man; a boy who from levity and imprudence causes a fire, etc. Yet authors warn that, unless it is certain, such venial fault from imperfection of the act is rarely to be presumed in grave damaging, and therefore confessors ordinarily ought to induce the penitent to some composition with the injured party, insofar as this can conveniently be done; which is altogether most advisable."¹

Question 1. To what extent is he bound to restore who with light fault, perfectly deliberate, inflicted grave damage. The case occurs if someone inflicts damage grave in itself, but from an erroneous conscience thinks that for grave sin a graver matter is required, or that one who inflicts grave damage sins only lightly.

Response. Others thinking otherwise, sufficiently probably no obligation arises, because light fault probably cannot carry with it the obligation of undergoing a grave burden, of which sort is - at least if there is question of goods of fortune - the burden of restoring grave damage. There is added that a grave obligation does not correspond to light fault, while a light obligation is not proportioned to the matter or grave damage. All these things considered, sufficiently probably every obligation is denied.

Question 2. To what extent is he bound to restore who through several venial faults deliberately committed finally inflicted grave damage.

Response 1. If someone inflicted those small damages on different owners, the individual damages are to be restored only under light obligation, because to light faults there does not correspond a grave obligation.

Response 2. If the damages were inflicted on the same person, most think that there is a grave obligation at least of restoring so much that grave matter no longer remains. But sufficiently probably, just as in the former case, there is only a multiple obligation under light obligation, because, as was said, to light faults there does not correspond a grave obligation.

Question 3. Whether he is bound to restore who culpably posited a cause of damage, but before the damage followed retracted the wicked will.

Response. Affirmatively, unless together with the wicked will he also removed the influence of the cause posited on the damage. The reason is that the retraction of the will does not prevent the damage from following from the cause posited. The reason for the exception is that then the damage arises from elsewhere. Hence he who has thrown fire into another's crop is bound to restitution, even if afterward, grieving, he tried to extinguish the fire (St. Alphonsus, III, 559; VII, 40).

Corollary. He who was invincibly mistaken about the quantity of the damage, for example about the value of a thing which he destroyed or consumed, is bound to restore only according to the value which he apprehended. The reason is that "that damage is not judged willed which is not known; therefore as regards that excess the will of damaging is lacking" (St. Alphonsus, III, 613). It suffices, however, that someone apprehended the excess confusedly.

¹ Sporer, n. 213 sq.; Sweens, n. 306.

1. Gastonius had made a testament in favor of Fabianus, his nephew. But Florianus, his other nephew, learning this, reports to Gastonius that Fabianus had often spoken badly of him. Gastonius, hearing these things, his testament having been torn up, instituted Florianus himself as his heir, and a little afterward departed from the living.

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

R. To the 1st. Affirmatively. For whoever damages someone really takes away from him that in which he damages him. And therefore he is held to restitution of that thing taken away, whether this thing has come to the one causing damage or not. For restitution is not principally ordained to this, that he who has more than he ought should cease to have it, but to this, that to him who has less than he ought, it be supplied. S. Th. 2.2. q. 62. a. 4, 6 ad 1; I. M. 1357 seqq.

To the 2nd. Florianus must restore the inheritance to Fabianus, if, in reporting those evil words, he committed calumny or detraction. For then Florianus impeded Fabianus from certainly obtaining the inheritance by an illicit and unjust means. But otherwise it would have to be said, if Fabianus [printed: Fabianus; sense requires Florianus] with truth and from a reasonable and grave cause had manifested those grave sins of Fabianus, by which Gastonius then judged him unworthy of the inheritance. G. 635; I. M. 1367.

But what if Florianus had simply persuaded Gastonius, yet from hatred toward Fabianus, not to leave the inheritance to Fabianus? Probably then he would be held to nothing. For that persuasion without force, without lie, without deceit and fraud, although it would have been against charity by reason of hatred, nevertheless would not have been against justice. G. 638; I. M. 1368.

2. Ranulfus had instituted Laelius as universal heir. Lying in extreme illness, Ranulfus calls Laelius and asks him to summon a notary. Laelius, fearing that Ranulfus might wish to change his last will to his prejudice, answers Ranulfus that all things had been altogether well done by him; but that it would now be better if, rather than think about death and the testament, he thought about recovering health. Ranulfus acquiesced, and after three weeks he died.

Q. 1. How much must be restored from damage? — 2. What as to the Case?

R. To the 1st. “Someone is damaged in two ways: in one way, because that which he actually had is taken away from him; and such damage must always be restored according to an equal recompense, as if someone damages another by tearing down his house, he is held to as much as the house is worth. In another way, if he damages someone by impeding him from obtaining what was on the way to being had; and such damage need not be recompensed equally, because it is less to have something virtually than to have it actually. But he who is on the way to obtaining something has that only according to virtue or potency, and therefore, if it were rendered to him so that he would have this actually, there would be restored to him what was taken away, not simply, but multiplied; which is not of the necessity of restitution. Nevertheless he is held to make some recompense, according to the condition of persons and of affairs.” S. Th. 2.2. q. 62. a. 4.

For that which is not yet had actually, but only virtually, can still be impeded in many ways. Wherefore the value of each is not the same. But for determining this value, the conditions of persons and of affairs must be attended to; whence the hope of the thing to be had is not always established as the same, but as greater or less, as can be seen in relation to a future harvest, e.g., in him who has not yet scattered seed in the field, or has already scattered it, or the harvest is now near maturity, or the harvest is now mature and soon to be gathered. And therefore, consequently, the value of the aforesaid hope is not the same. I. M. 1359.

To the 2nd. It indeed does not appear from the Case that Laelius acted illicitly, whether against justice or even against charity. For he used no illicit and unjust means for averting Ranulfus from making any change. Nor truly did he act from any hatred against someone, but he wished only to consult his own good; and charity does not obligate someone to consult the good of others rather than his own, or to consult the good of others with notable detriment to himself. Besides, Ranulfus signified no will in particular why he wanted the notary to be called. And if in truth he had the will of changing something in the testament, he withdrew from that will, since he altogether acquiesced in the response of Laelius, nor during three whole weeks did he speak any more of calling the notary, or of making some change in the testament.

But what? if Ranulfus had signified the will of adding some legacy in the testament in favor of some determinate person, and Laelius had promised that he would soon call the notary with the intention of not calling him, and afterward did not in fact call him; or if he had said, lying, that it was impossible for the notary to come. In such a case Laelius would have impeded Ranulfus from making the legacy by fraud, by a feigned promise, and by a damaging lie. Wherefore he would be held on this head to restitution or reparation of the damage. But since there still would not be altogether certain evidence concerning the will of Ranulfus, restitution would have to be made only pro rata of the hope. For the legatee as yet had no right to the legacy itself; nevertheless he had a right not to be fraudulently impeded from obtaining the legacy. It would be very difficult in practice to assign the quantity, if Ranulfus himself had not declared the quantity of the legacy to be constituted. But if he had declared that quantity, it seems sufficient if he restore half the part. And if Ranulfus had signified the will of a legacy, and had also declared its quantity, but had not manifested the person, then the aforesaid restitution would have to be made to the poor, or to pious causes. G. 636, 637, 853.

3. “Whether a Christian faithful who knowingly and willingly destroys and ruins the walls, doors, and implements of a temple, and for that cause is captured by the pagans, ought or can repair the damage, at least under another title? — R. He is held to restitution, by title of justice.” S. I. C. 21 Sept. 1842.

4. Hircinus killed Beraldus. The family of Beraldus abounds in many riches. Nevertheless the confessor of Hircinus obligates him to restitution both toward the nearer connections of Beraldus and toward the more remote relatives.

For he says that Hircinus [is bound] in place of Beraldus to furnish support to this man’s blood-relatives.

5. Iacobus killed Marcus, who brought no help to his family, but on the contrary impoverished it by his vices. Nevertheless the confessor of Iacobus obligates him to restitution, because, he says, Iacobus could have returned to better fruit and helped his family.

6. Ubaldus challenged Sabianus to a duel; and, the duel having followed, he was unhappily killed by Sabianus, leaving in extreme misery his mother, wife, and children, whom he himself was sustaining.

Q. What as to the Cases?

R. 1. Since the family of Beraldus, and his nearer blood-relatives, namely his wife, parents, and children, can easily provide for themselves, Hircinus seems to be excused from restitution toward them. For the homicide is obligated to restitution toward nearer relatives only insofar as relatives of this sort are considered one and the same person with the deceased, and have the right, from strict piety, to be sustained by the deceased; and consequently the deceased in turn could and ought to have sustained them. Whence it also is that Hircinus is not held to restitution toward the other more remote relatives. For as to these, if they undergo any damage, the homicide is their cause only remotely and by accident. Therefore the reasoning of the confessor rather proves the contrary in the Case. G. 733, 734; I. M. 1373.

2. Iacobus does not seem, in the Case, to be held to any restitution: for in fact he inflicted no damage as to the goods of the family. Indeed, on the contrary, he prevented a greater damage of goods. But the hope of the conversion of Marcus appears altogether slight, since rather the presumption in itself is contrary, namely that Marcus would have continued, as he did before, in wasting the goods of the family. Wherefore no certain obligation of restitution can be imposed for damages so uncertain and remote. G. 735, 736; I. M. 1373.

3. Sabianus is probably not held to the compensation of damages. For first, Ubaldus by his own consent placed the whole necessary and sufficient cause of his own damages, namely by consenting that his adversary act against him as much as he can, even by killing him. Therefore he implicitly consents also to temporal damages, if any perhaps he himself is to suffer from the wound received, and consequently he is judged to remit the obligation of repairing these damages. No injury is done to one knowing and willing, when a right can be remitted. But a duelist can well remit temporal goods, and renounce his right in order that damages inflicted on him be repaired by the other.

Besides, for the same reason, because Ubaldus by his own consent placed the whole necessary and sufficient cause of the damages which were inflicted on his own relatives, neither is Sabianus probably held, as to them, to compensate the damages. For this consent of Ubaldus standing, every reason of injury and injustice done by Sabianus to the aforesaid relatives ceases; and so there will no longer be any obligation from justice to compensate the aforesaid damages.

For a killer is held to the compensation of damages in relation to the nearer relatives of the one killed because he himself, from his unjust action, by killing, e.g., the father, is the cause per se of those damages. Wherefore this right of the nearer relatives is not founded in the obligation which the father, e.g., had of feeding children and wife, but in the injury by which through force the killer impeded that which the children and wife would have had from the living father; which injury gives to the children a right of justice to having that which they would have had from the father without such obligation of justice, but from piety only. Whence the right to that compensation is not acquired by the one killed himself, nor is it derived from him into others, but is immediately acquired by those others, whose individual right has been injured, and to whom individually an injury has been inflicted. And thus the father cannot dispose of this injured right of others, nor remit the obligation of compensation. “You have a very good example of this doctrine when by force or deceit you impede Peter from conferring a benefice upon Paul, in which case afterward you are held to restore to Paul as much as that hope is worth; and this debt indeed cannot be condoned by Peter, whom you impeded, but by Paul, concerning whose damage there is question.” Lugo d. 11. n. 63, 64.

Hence in the case of a duel, the obligation of damages ceases also as to others. For in relation to these, the action of the killer is no longer unjust, that is, impeding by force their support or emoluments. For by this very fact, that the one killed himself consents to his own killing, the killer now does not impede by force the support or emoluments of others, but from the consent and will of him from whom they would have had the emoluments, and who consequently by his own consent places the whole necessary and sufficient cause of their damages, thus impeding by his own consent the reason of violence and injustice in the killer as to the damages that are to follow to the relatives. But when the reason of violence has been taken away, the root of the obligation of restitution of damages ceases, which is the violence by which the killer impedes the emoluments of others. Wherefore the killer then sins only insofar as he cooperates, e.g., with a father who, notwithstanding that debt of feeding his own, wishes to be killed with damage to them; and since this in the father is not against justice, neither is it in the cooperator, in order to them, but only against charity and piety. It would consequently be otherwise if the one killed were held toward others from justice, and not only from charity or piety. Lugo d. 11. n. 71, 72; G. 735, 736; I. M. 1373, 1375.

7. Carpophorus contracted very many debts because of extraordinary luxury and rather frequent banquets, to which Bertha his wife cooperated not a little. But behold, the husband being seized by sudden death, the creditors immediately came together from every side to the widow Bertha, who received nothing from her husband, since he left nothing after his death except debts. Wherefore, pressed by these straits, Bertha asks her confessor whether she is held from her own goods to pay the aforesaid debts.

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

R. To the 1st. Affirmatively. Since “to restore imports the rendering of that thing which has been unjustly taken away, for thus by its repeated presentation equality is repaired,” S. Th. 2.2. q. 62. a. 2, whoever is either directly or indirectly the cause of an unjust acceptance is held to restitution. “Directly indeed when someone induces another to accepting, and this indeed in three ways: first, from the side of the acceptance, by moving him to the acceptance itself, which indeed happens by commanding, counseling, expressly consenting, and praising someone as if strenuous because he accepted another’s things; in another way, from the side of the one accepting, namely because he receives him, or in whatever way bears help to him; in a third way, from the side of the thing accepted, namely because he is a participant in the theft or rapine, as a companion of the evil deed. But indirectly, when someone does not impede, although he can and ought to impede; either because he withholds a precept or counsel which would impede the theft or rapine; or because he withholds his help, by which he could oppose; or because he conceals after the deed; which things are comprised in these verses: Command, Counsel, Consent, Flatterer, Recourse, Participant, Silent, Not opposing, Not manifesting.” S. Th. 2.2. q. 62. a. 6.

To the 2nd. From the fact that Bertha merely cooperated with the extraordinary luxury by which her husband was living, and by which consequently he wanted the whole family to live, by complying with her husband, and also consequently by delighting herself and taking pleasure in the display of such luxury, Bertha does not seem obligated to restitution in place of her husband. For in this mode of acting there does not appear efficacious and unjust cooperation toward contracting those debts. In truth, the obligation of restoring is personal and real. Insofar as personal, it obligates the one causing damage himself, and his cooperators. But insofar as real, it affects the thing taken away by theft. But Bertha, just as she was not cooperating in cause with the debts contracted by her husband, so she accepted nothing from her husband. But if Bertha had induced her husband to contract those debts; or even if she herself had induced her husband to the aforesaid luxury, knowing well that his fortune did not suffice for such a manner of living, and consequently that he had to contract debts which he himself was unequal to paying, then indeed Bertha would have cooperated efficaciously and unjustly toward them, and so would be held to pay those debts from her own goods. G. 385; La-Croix l. 3. p. 2. n. 381.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

950. Special question: On error in damaging.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Things to be noted beforehand. 1. Distinguish between hired soldiers, volunteers, who obligate themselves to serving for pay; conscripted soldiers, who are called to military service by universal or particular conscription; finally soldiers who hire themselves out in place of others.

2. Young men destined for military service can be considered either as to be conscripted, or as staying in camps, or as actually occupied in war.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

975. II. From unjust damaging, whoever, whether on account of a stipend or without a stipend, has undertaken some duty and has inflicted damages on someone through gravely culpable negligence is held to restitution. The reason is that those undertaking some duty, even spontaneously, obligate themselves, at least implicitly and by quasi-contract, to performing it with ordinary diligence (III, 555; H. Ap., X, 41). Recall the things said in n. 949.

Hence: 1. If someone knowingly taught false things and foresaw the damages probably going to happen thence to a pupil or to others, he is held not only to retract his false doctrine, but also to repair all damages which he foresaw would follow from it (cf. n. 513, 928). 2. If some pupil devoted himself to studies for an office to be obtained through the customary tests, and because of the professor's gravely culpable negli-

gence did not obtain the office, or was compelled to frequent school for a longer time: the professor, and if he fails, the prefect of the school, culpably participant in the professor's negligence, is held to repair all the damages of the pupil or of his parents according to the estimation of prudent persons. Cf. Crolly, de Rest., n. 1252.

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

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

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

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

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

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

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

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

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

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

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

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

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

Resp. There is a twofold probable opinion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Resp. 2° But, theological fault being set aside, he is not bound before the sentence of the judge, as is clear from principle II. n. 746; but after sentence has been pronounced, as is established from principle III. n. 747. - But by the laws according to which sentence is commonly given among us, animals inflicting damage are held until satisfaction is made to the injured party, and by public authority they are sold if the owner neglects to redeem them. But if the owner of the estate often omitted to enclose it lawfully, he can recover nothing; but he himself will be bound to repair the damage if the animal wounded or killed.⁴ Cf. n. 686.

Query 11° Is that man bound to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The more probable opinion denies it, because one who gives bad example is not the cause of the damage, but a mere occasion. For an evil action of itself does not tend to this, that it excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflicting the damage. S. Alph.,¹ Salmant., Laymann, Sanchez, Lugo, etc.

754. • Query 12° Is he bound to restitution who doubts whether he himself was the cause of damage?

Resp. There can be doubt: 1. whether a cause of damage was given, for example whether you calumniated someone; whether you were the cause of damage or only the occasion; 2. whether damage truly came to someone, suppose from your detraction; 3. whether damage which actually followed arose from that cause, for example from the calumny, or from elsewhere; 4. whether, if many were the cause of damage in the same way, for example by adultery, the effect (offspring certainly adulterine) is to be attributed to this or that adulterer. In all these doubts the obligation of restitution is to be denied; and indeed in the 1st and 2nd according to the common opinion; in the 3rd according to a sufficiently probable opinion; and in the 4th according to the more probable.² The reason is that in each hypothesis it is a question of a doubtful obligation, by reason either of the cause or of the effect.

Except, as to the 4th doubt, if the second adulterer, knowing adultery to have been committed by another, had intercourse with the adulteress, noticing that he by his second adultery becomes the cause of uncertainty whether support can be exacted from the first adulterer. But the reason indeed is not valid for the earlier adulterer, who would think nothing concerning future adulteries. And for the second to be bound, it is further required that he notice that damage which can come from his adultery; because nevertheless this advertence will be very rare, the obligation of this adulterer also will be very rare. - 2° If several adulterers from common counsel perpetrated adultery.²

755. • Query 13° Are you bound to repair damage coming to someone on the occasion of your unjust action, for example if you stole, and the theft is imputed to him?

Resp. 1° Certainly negatively, if you did not foresee that damage. This is clear from what was said above in principle II. n. 746.

Resp. 2° Also more probably negatively, although you foresaw this damage. The reason is that your action, placed with the foresight alone of the damage, must be held not as the per se cause of it, but only as the cause by accident. It is established also from the second principle, ibid. Except if at any time the circumstances were such that they morally proximately influence the grave suspicion and condemnation of another. - S. Alph.,¹ Lacroix,² etc., against others.

Resp. 3° Indeed probably it must also be denied, although you acted deliberately so that your action would be imputed to him, because this action is always only the cause of the damage by accident and not per se; for from its nature it did not efficaciously influence that damage. For a depraved intention does not effect that the work is unjust which of itself is not unjust with respect to a third party. Yet it must be excepted if someone used those means which would furnish a very grave suspicion for accusing another, for example if he dressed himself in his clothes to perpetrate homicide, threw away these stained with blood, etc. - S. Alph.,³ Lessius, Vogler, against others.

756. • Query 14° Is an unjust distributor of offices bound to restitution?

Resp. 1° More probably he is bound to nothing toward the worthy person passed over, the case of competition being set aside, because he violated the strict right of no one. - S. Alph.,⁴ and others commonly.

Resp. 2° By reason of the election of an unworthy person he is certainly bound toward society concerning all damages thence coming. The reason is that there is judged to be present an agreement of strict justice between society and the elector, by which the latter is bound not to elect unworthy ministers. - Thus commonly.⁵

But more probably he is bound to nothing by reason of the election of one less worthy, although he can sin gravely. The reason is that society is not judged to oblige electors by the title of commutative justice to elect the worthier.⁶

757. • Query 15° Is he bound to restitution who impeded another from the obtaining of some good or benefit?

Resp. 1° Affirmatively, if the neighbor has a strict right to obtaining the thing, as if you impede a creditor from obtaining payment.

Resp. 2° If the neighbor does not have a strict right to obtaining the thing, a distinction must be made. 1° It must be affirmed if this is impeded by unjust means, for example force, fraud, calumny, fear, etc. Namely, then he is obligated to compensation of damage according to the judgment of a prudent man, according to the certitude or probability which the other had of obtaining that good, provided nevertheless he is worthy and could have obtained that good without injustice; for if he were unworthy, the one impeding would not be bound except to restitution of reputation, if perhaps he injured this unjustly.¹ 2° It must be denied, however, if it is impeded by means just in themselves, for example persuasion, prayers, etc. The reason is that then no right of the other is violated, neither in itself nor in the means. - Thus commonly.²

Query 16° Are you bound to restitution if from an evil intention, for example from hatred, yet with means of themselves unjust set aside, you turn another away from the obtaining of a good to which he does not have a strict right?

Resp. More probably negatively. The reason is that no injury is inflicted upon the neighbor. For evil intention does not suffice for injury, but there is required an external action which is the true and efficacious cause of unjust damage. - S. Alph.³ and others more commonly against others.

Query 17° Must someone in danger prefer another's thing to his own, so that he is bound concerning damages if he does not prefer it?

Resp. The contract by force of which he has another's thing either yields for his utility only, or for the utility of the other only, or for the utility of both. If the first, as if he received the thing by loan for use, he ought to prefer that thing to his own, or, if his own is much more precious, to make the owner harmless concerning the price of his thing, because for his benefit alone the thing of another was brought into ruin. - If the second, as for example if I received the thing by deposit, a distinction must be made. If this is much more precious, I ought to conserve it; nevertheless I can exact compensation of the whole damage which I suffered by preserving it. If my thing is equally precious, I am not bound to prefer another's thing to mine, since I retain it for the utility of that man alone.⁴ If the third, as for example if as a broker (agent) I have been hired for a price to sell another's thing, there are those who think that, other things being equal, I can prefer my thing, since charity does not oblige me to prefer another's thing to mine in equal necessity; but others think that some compensation is owed to the other party, which seems more just to Varceno.⁵

758. Cases. - 1° Didacus at night puts away in a corner of the house a very precious crystal vase of Caius, by which no one was soon going to pass, intending to place it in a safe place very early in the morning. But Basilius, entering the house that same night without light, strikes against the vase and breaks it. What is the law? - Resp. Neither Didacus nor Basilius is bound to restitution, because on the part of each theological fault is lacking; for neither thought about damage or the danger of it. Indeed neither one would be bound if he had foreseen some very remote danger, because in morals attention is not paid to mere possibility.

2° Quirinus, intending to steal cloth, enters a workshop at night and lights a candle, employing diligence to avoid every danger of fire; but by an unexpected event, namely the leap of a cat, the candle is thrown into straw, and in a short time the whole workshop is burned, and the thief barely escapes unharmed by taking flight. What of Quirinus? - Resp. He is bound to nothing, because he in no way foresaw the danger. Indeed he is not bound concerning the cloth which he wished to steal, even if he had seized it, because even that damage is involuntary; nor is the seizure of the cloth the cause of the damage, nor did the carrying of the candle create a proximate danger of fire when sufficient caution had been employed. Yet if the thief had not only seized the cloth, but had consummated the theft by withdrawing it from the power and custody of the owner, when by accident, for example by the lit candle, the cloth was burned, he would be bound concerning it, as is said concerning any stolen thing which perishes by fortuitous event with the thief. - Thus Lugo,² Lacroix.³ Cf. n. 734. 1°.

3° Pomponius, impelled by a mind of revenge, while seen by no one, discharged a shot at a goat of Marri grazing peacefully in the estate of the owner; but instead of the goat, which was unharmed, he struck and killed a cow of Marinus lying behind a hedge, while he was wholly ignorant of it. To what is Pomponius to be obligated? - Resp. To nothing. For he is not bound to anything for the aforesaid goat, since it remained unharmed; nor for the cow, since he in no way foresaw its damage. But what if the cow belongs to the same owner? The difficulty increases, since the damager truly intends to inflict damage upon such a person; for although he does not destroy the thing specially intended, since in general he wishes to harm the enemy, the damaging action which he places seems formally injurious to the same owner. Nevertheless, standing in the rigor of the principles, he can still more probably be excused, if in no way, not even in confused manner, did he foresee this other damage. For it can be said that it happened merely by accident; nor does the depraved intention of harming the same man make the damage of a thing wholly unknown become voluntary. It is otherwise, however, if, wishing generally to harm the enemy as much as he could, he had known somewhat in confused manner various objects to be damaged. Recall what was said n. 746 and 755.

4° Sidonius, seeing Justin passing by and thinking that he is Titius, says to his companions: Look, that man is not the standard-bearer of the scrupulous! ... But he is a worthless man, a thief, fornicator, and drunkard. Query: What must Sidonius do when the error is detected? - Resp. He must retract the things said before the same companions, although involuntarily he said these things against Justin; and if he does not do so, he will be bound to repair all damages which follow from the defamation. Cf. n. 749. q. 3°.

5° Babinus, by repeated prayer and flatteries, yet with all deceit set aside, induces Roger, who is dying, to tear up the will already made in favor of Paul, so that he himself, or a friend or blood-relative, may be constituted heir. But Babinus is determined to do this, besides his own advantage or that of a friend, from inveterate hatred which he cherishes against Paul. Is Babinus guilty of injustice? - By no means. For although on account of hatred he has sinned gravely against charity, nevertheless more probably he has not injured the virtue of justice, because he has violated no strict right of Roger. The same would have to be said if someone from hatred had turned the testator away from constituting Paul heir, so that anyone else would be constituted in his place. - Recall what was said n. 757. q. 15°. q. 16°.

6° a) John intercepts letters by which Paul seeks some office, and thus impedes him from obtaining that office. b) Peter, the secretary of the Governor, sets aside a little the letters by which Caius was demanding some office, so that the office meanwhile may be conferred upon Titius. c) Iphigenius reads letters sent to Cornelius and opened by accident, and uses the knowledge derived from this for his own advantage, but without any damage of Cornelius. d) Antony, a secretary hired by Hubert for a price, uses knowledge received on occasion of his office to the detriment of Hubert, or even of those who wrote letters to this man. To what are John, Peter, Iphigenius, Antony bound? - John, Peter, and Antony are bound concerning the damage respectively toward Paul, Caius, Hubert, or those who wrote letters to this man, since they used unjust means to impede them from the obtaining of a good. And indeed John and Peter are bound to compensation to be estimated according to the reason of the hope which shone upon Paul and Caius of obtaining the office. But Iphigenius is bound to nothing, since he inflicted no damage.

7° Charles persuades the Governor to choose Patrick rather than Kilian, otherwise certainly to be designated, for an office. To what is Charles to be obligated? To nothing, provided that in persuading he used no fraud, calumny, or other unjust means. (n. 757. q. 15°.)

8° Hilary a) from hatred toward Philip induces the notary that in favor of Philip an act not be done before him, which otherwise will be invalid; b) in order to harm Bertha, otherwise to be instituted heir by Caius, he craftily removes the secretary, or another suitable person for drawing up a will, lest the dying Caius use his work, who will scarcely have the work of another. Is Hilary guilty of unjust damaging? He certainly is in the former case, because, since the notary by force of his office was bound to furnish his work to Philip, who, as is supposed, asked for it, he deprived Philip of his strict right. Resolve the same of itself in the latter case. I say: of itself; for since everywhere among us the will of a dying man can obtain force also in another way, namely by declaring it before witnesses, there will scarcely be an obligation of restoring to Bertha, unless force was employed by Hilary lest the will be made in any manner in which it could be valid.

9° Felix a) detains a messenger lest a business useful to Ferdinand be transacted; meanwhile he uses the occasion for his own utility. b) Elsewhere he hires all the post-horses in the town for a price lest the same Ferdinand betake himself to a certain place, where he would have made an immense gain. Is Felix bound to make Ferdinand harmless? A distinction must be made. If by force or threats he detained the messenger or hired the post-horses, affirmatively. If only by persuasion or art, negatively, unless the messenger had been hired by Ferdinand, or by another contract ought to have conducted Ferdinand's business.