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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

480. Declarations. 1. The one commanding (ordering) is here understood as he who induces someone to inflict damage on another in his name.

a. It makes no difference whether the mandatary undertakes the business to be done gratuitously or for payment, provided he acts in the name of the one mandating. In the same way it makes no difference whether the one mandating is a superior of the mandatary, who by his authority enjoins on him the business to be done, or is equal to the mandatary: for to the nature of mandate only this belongs, that the mandatary act in the name of the one mandating.

b. The one mandating is the principal and primary cause of the damage; the mandatary or executor is its instrumental and secondary cause.

2. In order that a mandate induce the obligation of restitution, it must be the true cause of the damage inflicted; but it is the cause of the damage inflicted if it truly influences the will of the mandatary.

a. Therefore approval or ratification of the damaging action made after execution is not a mandate; but approval or ratification made before execution is equivalent to mandate if it influences the damage.

Therefore if someone manifests to you his plan of inflicting damage on another in your favor, and you do not contradict it, you are bound to repair it when you can contradict without difficulty, because by tacitly approving you are considered to have influenced the damage; but if someone, without your knowledge, inflicts damage on another in your favor, you are not bound to repair it.¹

b. A mandate can be given in diverse ways: alpha. by reason of the mandate, either by entering a contract, whether gratuitous or onerous, or without a contract: by command, prayers, approval; beta. by reason of the mode, expressly or tacitly, as if someone by some sign shows that it will be pleasing to him if damage is inflicted.

¹ Cf. Vogler, n. 283.

481. The obligations of the one mandating toward the damaged person are contained in this principle: the one mandating must repair all damages which the mandatary inflicted by force of the mandate; for of these he himself is the efficacious cause. By force of the mandate are considered to be inflicted not only those damages which are expressly contained in the mandate, but also those which in executing the mandate could be avoided only with difficulty.

1. Damages which the mandatary inflicted from invincible error, not likewise damages which he inflicted from vincible error (which he could morally have avoided), the one mandating is bound to repair, because the mandate efficaciously influences the former, but not the latter.

2. Damages which the mandatary inflicts by exceeding the limits of the mandate, the mandatary is bound to repair, because he alone is their cause. Nor, if the one mandating afterward ratifies them, does he therefore become their efficacious cause.

To what is the one mandating bound if he revoked the mandate?

a. If the revocation of the mandate became known to the mandatary before its execution and the mandatary nevertheless inflicts damage, he is bound to nothing: for through revocation the influence of the one mandating on the damage ceases.

b. If the revocation of the mandate from any inculpable cause did not become known to the mandatary, whether because the messenger could not reach him on account of the shortness of time, or because by chance he was not brought, he is bound to repair the damage: for in fact the mandate is the cause of the damage.

c. If the revocation of the mandate did not become known to the mandatary because a free cause culpably impeded this, the one impeding is bound to repair the damage: for he exists as its cause.

482. The obligations of the one mandating toward the mandatary are contained in this: the one mandating must repair the damages occurring to the mandatary in execution of the mandate, of which he himself is the efficacious and unjust cause.

1. If by force, fraud, or grave fear he drove the mandatary to executing the mandate, he is bound to repair all damages occurring to him in the execution which he foresaw in some way, at least confusedly: for of these he himself is the efficacious and unjust cause; unjust indeed, because by compelling the mandatary by force he inflicted an injury on him; efficacious, because damages foreseen in some way follow per se from the mandate. But he is not bound to repair damages which he could not foresee, because of these he is only the cause per accidens.

Hence if one ordered by grave threats to commit theft is condemned to prison, the one mandating is bound to repair the damage arising from this: for this effect, as one not improbably connected with the action, follows from the action per se. But if the one ordered to commit theft falls from a horse and breaks an arm, the one mandating is not bound to repair the damage arising from this: for this effect, as connected with the action only by a possible nexus, follows from the action per accidens.

2. If the mandatary spontaneously or hired for payment undertakes the mandate, the one mandating is not bound to repair the damages occurring to him in the execution, because he himself is their cause neither unjust nor efficacious: for no injury is inflicted by the one mandating on the mandatary who freely undertook the action; moreover he himself is the cause of all effects of his action, which he freely undertook.

Note. One ordering, insofar as he is distinguished from one mandating, differs from him in two ways: a. the one ordering is the superior of the mandatary and by his authority enjoins the action on him; b. the one ordering is bound to repair to the mandatary all damages which he suffered in execution of the mandate and which the one ordering probably could foresee.

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

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

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

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

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

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

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

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

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

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

¹ Ballerini-Palmieri III, n. 362.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

489. Notion. The one consenting is said to be he who by external approval, vote, or sentence influences the damage of the neighbor; of this kind can be a sworn judge who with others gives sentence, a deputy who with others by his vote establishes a law, an elector who with others elects someone to an office or benefice.

The one consenting who by his consent does not influence the damage can sin against charity or even against justice affectively, but not effectively.

490. Obligations as to the consent itself. a. He who culpably gave consent for inflicting damage is bound to revoke it; if he does this before the damage has been inflicted, he is bound to nothing; but if he either has not done this or could not do it, he is held for the damage.

b. If in good faith he gave consent for inflicting damage, once the error has been detected he is bound to revoke it; if he has done this or could not do it, he is bound to nothing.

491. Obligations toward the damaged person. 1. The one consenting is bound to repair the damages into which the consent efficaciously influences; but it certainly efficaciously influences those damages for the infliction of which the consent is necessary.

Whether he who gives an unjust vote which is not necessary is bound to restitution.

a. Those who by agreement (for example, among the members of some faction), or at the same time (for example, by rising), or secretly (for example, by secret ballots) give a vote, all are equally bound to restitution. The reason for the first is that, once a conspiracy has been entered, each influences the vote of the others and therefore the damage; the reason for the second is that no one gave his vote earlier and no one later, and therefore all and each place one morally unified action for producing the effect, which therefore is attributed equally to each; the reason for the third is that it is unknown who was earlier or later, and therefore the effect is attributed equally to each, since each placed an action efficacious of itself of the effect.

Yet if even in secret voting it could be established that the vote of someone certainly did not influence the damage, he would be excused from restitution just as in voting which is made openly.¹

b. If they give a vote openly and successively, certainly the first, whose vote is necessary, are bound to repair the damage, even if they foresee that others will not be lacking who would vote in the same way: for these truly and in fact influence the damage.

c. Those who vote when the number necessary for deciding the matter has certainly already been completed are (at least probably) bound to nothing, because they no longer influence the damage already inflicted by others.

This opinion is called probable because there are some who think that in fact all votes influence the effect, because the matter is not decided, that is, the sentence is not fully given, unless when all votes have been given.

2. He who gives an unjust vote which is the sole means for impeding a greater damage is not bound to repair the damage; indeed he acts licitly if the thing to which he consents by his vote is not intrinsically evil, and if it is publicly known that this is done only to forestall a greater evil.

¹ Cf. Ballerini-Palmieri III, n. 366, 5.

492. 1. A flatterer is said to be he who by praising or blaming moves another to inflict damage on the neighbor. He ordinarily has influence on the damage itself where the other would not have inflicted the damage without the flattery.

2. The obligations of the flatterer are the same as those of the one counseling: for he gives, as it were, clothed counsel, whose motives are generally taken from a false concept of worldly glory.

a. In order that the flatterer be bound to restitution, it is required that he advert that by his praises or reproaches he exists as a cause of the damage; but it is not required that he himself intend the damage.

b. It is clear that the flatterer is bound to restitution not only if he exists as cause of the damage, but also if by praise or blame he is the cause why the damage inflicted is not repaired.

493. 1. One receiving or furnishing recourse is said to be he who knowingly cooperates in the damage of the neighbor by furnishing security to the damager. This can happen in two ways: either by receiving another's thing or by protecting the author of the damage.

It belongs to the nature of one receiving that by his manner of acting he influence the will of the damager and determine it either to inflict damage again or to retain the thing taken away.

a. Therefore these are not receivers: alpha. those who receive criminals at home as friends and blood-relatives, or by reason of office as innkeepers, or to avert grave damage from themselves; beta. those who defend thieves or criminals in judgment in those things in which they themselves could defend themselves.

b. But these are receivers: alpha. innkeepers who receive thieves into lodging and conceal them lest they be captured; beta. tavern-keepers who accept from sons under family power money or other things secretly taken from their parents; gamma. parents who do not impede the thefts of sons and in this way add courage to them for repeating thefts.

2. The receiver is bound to repair damages of which he himself is the efficient cause; therefore if the one furnishing recourse brought it about that damage was inflicted or that the thing taken away was retained.

494. The participant is twofold: a. a participant in the prey is he who receives part of the thing unjustly taken away; b. a participant in the action is he who assists the principal damager in the unjust action itself.

1. The participant in the prey must restore that which he unjustly accepted: for he is an unjust possessor of another's thing; but he has no other obligation.

2. The participant in the action must repair the damages of which he himself is the efficacious and culpable cause. Which these are must be determined from the principles established concerning cooperation (n. 118 s.). Therefore if the cooperation is licit, no obligation of restitution arises from it.

Whether it is licit, in order to avoid one's own damage, immediately to cooperate in an action damaging to another, is said elsewhere (n. 118).

495. Prenotanda. Negative cooperators are said to be those who do not impede the damage of the neighbor which they are bound from justice to impede. Three are numbered: the silent, the one not opposing, the one not manifesting.

a. The silent one is said to be he who before the damaging does not impede the damage, for example, does not deter thieves by a shout, does not warn concerning the damage to be inflicted.

b. The one not opposing is said to be he who, while the damage is being inflicted, does not impede it, for example, does not defend the thing or turn away the damaging action, as a guard who does not drive away a thief.

c. The one not manifesting is said to be he who after the damaging does not reveal the damage inflicted either to superiors or to the damaged person, so that the damage may be repaired.

496. Their obligation. Those who are bound from justice to impede damage and do not impede it, when they can do so without grave inconvenience, must repair the damage inflicted.

a. If there is question of restitution because of damage not impeded, first of all one must investigate whether he who did not impede the damage was bound to impede it from justice or from another virtue.

All are bound from charity to impede the damages of others by both moral and physical influence if they easily can, and this in two ways: both so that the damager may be turned away from sin, and so that evil may be forestalled from the one to be damaged.

Those on whom the office of superior rests are bound by a special obligation, which arises from superiority, to avert damages from their subjects. Thus a father, who must procure the good of his children from piety, is bound from piety both to turn his son away from inflicting damage on others and to impede others from harming his son; a prince, who must procure the common good from legal justice, of itself is bound from legal justice to forestall that someone inflict damage on the community over which he presides. Yet the condition itself of superior does not of itself oblige from commutative justice to preventing damages, whether those inflicted on subjects or those inflicted by subjects, unless superiors are obligated to this by a special office.

b. Only he who is bound from commutative justice to impede damage and does not impede it must repair it. But those are bound from commutative justice who are bound by force of an explicit contract or by force of office or implicit contract.

alpha. Damage inflicted by a son who does not yet have the use of reason, with theological fault supposed, the father is bound to repair before the sentence of a judge, because he must watch over sons not yet having the use of reason from justice. But damage inflicted by a son who already has the use of reason the father is not bound to repair, because he must watch over sons having the use of reason only from piety; the son will repair it as soon as he can. Yet after the sentence of a judge such damage too must be repaired, provided it was truly inflicted, because a law cannot be called unjust which incites parents and superiors to greater care and vigilance. The same must be said if a father catches his son inflicting damage and is silent in those circumstances in which silence is equivalent to approval. But in this case by his consent he cooperates positively.

There are some who oblige parents to repair damage inflicted by sons not yet having the use of reason, even if it was done without theological fault of the parents. Yet rightly they are held immune from the obligation of restitution if the damage was inflicted although the parents watched over their children with ordinary diligence.¹

beta. He who, asked by a thief, is silent, is not bound to restore; indeed neither is he bound to restitution who, in order to be silent, received money from the thief, unless he must shout from office. But if he receives money to watch whether someone is coming, he is held for the damage, because he cooperates positively in the theft.

gamma. Guards of vineyards and forests who do not impede acts of damaging or do not denounce the damagers are bound to repair the damages inflicted by them, unless the owner can be considered less unwilling, as if there is question of things of less moment, or if something is permitted to the poor. But they are not bound to compensate the fine, because they were hired only to avert damages from the owners.

The same must be said of overseers of customs duties who permit duties to be defrauded or do not denounce those defrauding, unless there is question of things of less moment, or of things for which from usage the tax is not usually exacted so precisely. Yet they are not bound to restore penal fines nor the price which they received from the defrauders so that they would permit the defrauding.

delta. The owner is bound to repair damage inflicted by his animals, and indeed before the sentence of a judge if with grave theological fault he neglected custody of them; but if theological fault did not intervene, after the sentence of a judge, provided the damage was truly inflicted. Here it must be noted that the owner culpably neglects the custody of animals even when he knowingly places over them an unfit or negligent guard.²

c. But he is not bound to impede damages with grave inconvenience, because of itself no one, by entering a contract or undertaking an office, is considered to obligate himself to this.

Whether he who does not cast a vote is bound to restitution when there is question of damage to be inflicted on another.

He is not bound to restitution if by his vote he cannot impede the damage, because no one is held for damage inflicted by another which he himself cannot impede. If by his vote he could have impeded the damage, one must distinguish: if the damage which arises from omission of the vote he is bound to impede from commutative justice, he must repair it; but if he is bound to impede the damage only from another title, whether from charity or from legal or distributive justice, by omission of the vote he will sin against that virtue which obliges him to vote, but he is not bound to restitution.

He is bound to give his vote from commutative justice who from office must protect the rights of the damaged person and therefore from office must impede his damages. In order that in a particular case the obligation of restitution be present, it is required in addition that he who must vote from office was bound to be present at the voting, or culpably was absent from it, and that he foresaw that damage would arise from the omitted voting.

¹ C.A. Section 1309 agrees.

² G.A. Sections 1299, 1315, 1320.

497. Obligation of the confessor. From these things the obligations of the confessor are now gathered without difficulty, when he either obliges a penitent to make restitution to which he is not bound, or frees him from making restitution to which he is bound. For a. the confessor with respect to the penitent must be considered as one counseling, who furnishes doctrinal counsel; b. moreover the confessor must give sound counsels not only from charity, but also from office and therefore from justice in those things which concern the spiritual good of the penitent; c. but in those things which pertain to the temporal good of the penitent, insofar as he is confessor, he has no obligation of justice. Therefore:

alpha. The confessor who with grave fault positively frees from making restitution a penitent who must restore is himself bound to restitution toward the third person, because by his counsel he is the efficacious moral cause of the damage which the third person suffers.

beta. The confessor who with grave fault induces a penitent who need not restore to restore is bound to restitution toward the penitent, because he is the efficacious moral cause of the damage which the penitent suffers.

gamma. The confessor who culpably does not warn concerning error a penitent falsely thinking himself bound to restitution is not bound to repair the damage which the penitent restoring suffers: for the confessor is indeed bound from justice to impede spiritual damages, but not temporal damages of his penitent. Yet if the silence of the confessor would deservedly be taken by the penitent for an affirmation of the obligation of restoring, the confessor would certainly be bound to repair the damage.

b. He who culpably does not warn the penitent concerning making restitution and thus is the cause why damage is not repaired to the injured owner is not bound to restitution, because he is not obligated from office to forestall the temporal damages of others.¹

Article Seventh. On Restitution to Be Made by Cooperators

Concerning restitution to be made when several concur in inflicting the same damage, it is asked: a. what or how much; b. in what order the individuals must restore.

¹ Cf. De sacramentis^3, n. 420.

WHEN other sins have been committed they are blotted out and reparation as far as possible is made for them by sincere sorrow and repentance. But when commutative justice has been violated it is not sufficient to be sorry for the injustice done; reparation must be made for it by putting, as far as possible, the person injured in the same condition as he would have been if the injury had never been inflicted. This reparation for an injury that has been done to another is called restitution. There is a strict obligation in justice to make restitution as far as is possible to another whom one has injured; for justice requires that each one should have his own; but one who has been injured is deprived of his own so long as restitution has not been made; and so, in order that each one may have his own, in order that that equality may be preserved which justice prescribes, restitution is of strict obligation whenever commutative justice has been violated. It is an obligation of justice, and so it is a grave one, unless the matter be light.

As justice may be violated either by taking away from another what belongs to him, or by damaging or destroying his property, so we may consider restitution as being due either because one has what belongs to another, or because he has inflicted on him unjust damage and loss. These are called by theologians the roots of restitution. We will treat of them successively, and finally of the obligation of making restitution on account of co-operation in injustice,

I. Notion of restitution. Restitution is the reparation of another's violated strict right, or it is an act of commutative justice by which someone returns another's thing or compensates damage unjustly inflicted by himself.

Restitution differs: 1° from satisfaction, which consists in the reparation of an offense inflicted on someone; 2° from payment, which neither returns another's thing nor supposes damage unjustly inflicted.

II. Obligation of restitution. 1. The obligation is clear both from Sacred Scripture¹ and from the reason brought forward in n. 978.

2. The obligation of restitution is grave by its kind, that is, grave or light according as the matter to be restored is grave or light; for the said obligation corresponds to the obligation of not committing injustice; and that obligation is grave by its kind (n. 978). Nevertheless, the gravity of the obligation ceases if so much has been restored that the remaining matter ceases to be grave (St. Alphonsus, III, 553).

3. In doubt whether the thing or quantity taken away by you, destroyed, or consumed, is grave, you are bound under grave obligation to restore, because, once another's certain right to a thing or to a quantity has been posited, it is gravely illicit for you to expose yourself to the danger of continuing grave damage. But in doubt whether you took, destroyed, or consumed more or less, for example whether you stole 20 or 10 florins, you are bound only to restoring the lesser amount, because the fact founding the obligation of restoring more is doubtful (n. 228; St. Alphonsus, III, 706).

4. It is disputed whether one who has harmed someone in a kind of goods in which he cannot restore must compensate the injury with money, for instance if someone has mutilated or defamed another.

Response. St. Thomas (II-II, q. 62, a. 2, ad 1 and 2) seems to affirm, because where an equivalent cannot be restored, there must be made the compensation which is possible. Thus also Cajetan.² St. Alphonsus, however, with others, deservedly holds the contrary as sufficiently probable. For "commutative justice obliges one to restore according to the equality of the damage inflicted. But where restitution is to be made in a different kind, there is no equality present, nor will there ever be any compensation of the damage; for by any money whatever the damage will by no means be repaired, either in whole or in part. And thus response is made to the opposite opinion" (St. Alphonsus, III, 627). There is added that a strict right must regard something determinate. But it cannot be determined what in a diverse order would have to be restored.

Corollary. In this case the injured person generally cannot provide for himself by occult compensation, because the debt is only probable; cf. however n. 1074. But where the injured person has received compensation in another kind from the one harming him, he can retain it, nor can the one who harmed now recover it by occult compensation (n. 1033).

¹ Cf. Exod. 22:5; Tob. 2:21; Ezek. 33:15; Rom. 13:7; Jas. 5:4.

² Summa, word Restitutio, cap. 2.

III. Titles of restitution, that is, the reasons or roots from which the obligation of restitution arises, are: 1° another's thing materially unjustly possessed; 2° another's thing formally unjustly accepted; 3° mere damaging, which takes place when someone merely injures the good of another, or unjustly impedes him from acquiring a good. A contract, whether not observed or violated, is referred according to the circumstances to one of the assigned titles (St. Alphonsus, III, 548).

As is deduced from what has been said in n. 981, those are bound to restitution: 1° who unjustly possess another's thing, or at least unjustly accepted and possessed it; 2° who merely inflict damage on another by violating his rights; 3° who unjustly impede another from acquiring a good. There are added those who cooperate in another's injustice. We shall treat of each, at the same time explaining the things to be restored by them, or the object of restitution.

Restitution.—Justice not only commands that one pay or give back what is due in voluntary transactions, but also that one repair injury which one has caused in involuntary transactions. But the four acts of payment, restoration, satisfaction, and restitution must not be confused.

(a) Thus, payment is the lawful bestowal by one person on another person of something of value in return for some other thing of value. It is clear that payment differs from satisfaction and restitution, since it supposes no act of injustice done.

(b) Restoration is the return to another of his property of which one had just possession, as when a borrower gives back to the lender, or a depositee to the depositor. This also differs from satisfaction and restitution, since it is a voluntary transaction (see 1792, 1796).

Differences between Satisfaction and Restitution.—(a) They differ as to their principle or cause, since satisfaction is due for injury to honor, restitution for injury to goods by unjust detention or unjust damage. Hence, a person who has dishonored another (e.g., by disrespect) is bound to satisfaction; a person who has injured another (e.g., by destroying his goods) is bound to restitution; a person who has both injured and dishonored another (e.g., by adding insults to robbery) is bound to restitution and satisfaction.

(b) Satisfaction and restitution differ as to their term or object, since satisfaction is chiefly concerned with the person to whom amends must be made (as by apology), while restitution is chiefly concerned with the thing which must be given back in itself or in its equivalent.

When Restitution Is Due.—Restitution is the act by which one places another in renewed possession or ownership or chance of ownership of that which is owed to him because it is his by reason of a strict right in re or ad rem; in other words, it restores the equality that existed before an injury was done to the goods of another.

(a) Thus, restitution is not due for violation of virtues other than justice, because these virtues are not concerned with strict obligations and rights. Repentance and satisfaction are due for all sins, but they are not the same thing as restitution. Hence, one is not bound to restitution if one refused to help with alms a person in extreme need, or if, not being obliged to it by office, one neglected to extinguish a fire or to prevent a robbery. These are sins against charity, not against justice.

(b) Restitution is not due for violations of virtues that pertain to justice but do not confer strict rights, and hence it is only a violation of commutative justice that entails the obligation of restitution. Thus, if one has been surly or ungrateful, no legal right has been violated and no restitution is due.

The Roots of Restitution.—The roots or sources of restitution are usually reduced to two, according to the following two general kinds of injury inflicted on others:

(a) unjust damage, which is the loss inflicted, on the goods of another, without advantage to the offender, as in murder or incendiarism;

(b) unjust possession, which is the loss inflicted on another by the possession of his goods without his consent or against his will, to the advantage of the offender, as when a murderer steals from his victim, or an incendiary gets the insurance from the house he destroyed.

Unjust damage that obliges to restitution is only an act (or omission) that is both injurious (being a guilty violation of another’s strict right) and productive of loss. Hence the following conditions:

(a) the act must be objectively unjust, a contravention of a strict right in re or ad rem (see 1695 sqq.), for example, stealing or keeping back the wages due an employee. But it is objectively unjust to deprive another of a non-strict right (e.g., the right of a beggar to an alms) by unjust means, such as force, fraud, calumny, etc. If a neighbor is not hindered from his strict right and unfair means are not employed, there is no objective injustice (e.g., when a merchant improves his place of business and thus draws away customers from a rival merchant);

(b) the act must be efficaciously unjust or the true cause of the loss which another suffers, for one is not responsible for what does not proceed from one’s act. An act is not efficaciously unjust, therefore, if it is only the occasion of damage (e.g., Titus steals and Balbus imitates him; Claudius steals, and on account of circumstantial evidence not arranged by Claudius, Sempronius is arrested and sentenced to prison), or if it is only a conditio sine qua non (e.g., Caius gives whisky to Julius, who needs its stimulation to nerve himself for a crime), or if it is only an accidental cause (e.g., Titus steals a small sum of money from a miser, and the latter, to the great surprise of Titus, becomes insane);

(c) the act must be subjectively unjust, that is, culpable and imputable; for one is not bound to satisfy for acts that are inculpable or not imputable (see 97 sqq.). There must be either theological culpability, that is, the intention to harm another, which is sinful before God (e.g., he who purposely sets fire to his neighbor’s barn), or juridical culpability, that is, carelessness which causes injury to the legal right of another (e.g., he who lights a fire near his neighbor’s buildings and by his absent-mindedness permits the buildings to catch fire).

Some Causes That Remove or Diminish Theological Culpability.—(a) Mental derangement or passion (e.g., great fear or anger) may make an injurious act unintentional and so take away natural liability for restitution (see 40 sqq.), but the civil law does not always admit the excuse, and after sentence the offender is bound to pay.

(b) According to some authorities, error about the extent of the harm that is being done, if invincible, excuses from restitution for damage that was not apprehended, as when a thief throws a gem into the ocean, thinking that it is only an imitation gem. But the offender would be held for the entire loss, if sentenced.

(e) Error about the person injured, even though invincible, probably does not excuse from restitution, if the intention was to harm a class (e.g., Sempronius intends to kill Balbus, because the latter is a policeman, but by accident he kills another policeman) or an individual (e.g., Caius intends to kill Titus and by mistake kills Claudius, the twin-brother of Titus).

(d) Error about the thing injured, even though invincible, probably does not excuse from restitution, if the intention was to do damage (e.g., Julius puts poison in a plate in order to kill his neighbor’s dog, but the cat takes the poison and is killed).

Restitution for Damages That Are Only Venially Sinful but Seriously Harmful.—(a) When one injurious act is committed (as when through slight carelessness one sets fire to one’s neighbor’s chicken coop), some deny, but others affirm, the duty of restitution, while still others distinguish according to the full or only partial advertence to the sinfulness of what is done. Of those who hold for restitution, some think that all the damage should be repaired, since all was caused; but others think that it suffices to repair part, since the culpability was limited.

(b) If several injurious acts, which taken singly are slight but taken together are serious, were done to the same person (e.g., a waiter breaking dishes at various times while working for the same proprietor), restitution is due as soon as the sinner realizes the amount of harm he has caused; but it is disputed whether the obligation is grave or light. If the injuries were done to different persons (e.g., a boy breaking windows in many houses in the neighborhood), there is more probably only a light obligation.

Restitution on Account of Law for Damages That Are Only Juridically Culpable.—(a) Before sentence of court there is no obligation of restitution, for it would be too heavy a burden to impose this in view of the absentmindedness of so many persons and the numerous distractions one encounters.

(b) After sentence of court there is an obligation of restitution, for the law which gives the court a right to impose it is reasonable, since juridical fault is often accompanied by theological fault, and moreover men will thus be led to a greater prudence in the care of their own goods and in respect for those of others.

Restitution on Account of Contract for Damages That Are Only Juridically Culpable.—(a) Express contract obliges to restitution even for light fault (i.e., the omission of precautions taken by the more prudent), or most light fault (i.e., the omission of precautions taken by the most prudent only), or, if so stipulated, for no fault at all.

(b) Implied contract perhaps also obliges to restitution for juridical fault, for it seems that equity requires one to make good the losses caused by the absence of a care which the contract took for granted. Thus, if the advantage is with the bailor alone (e.g., gratuitous deposit), ordinary care is expected and the bailee is not held in danger to prefer the bailor’s goods to his own; if the advantage is with both parties (e.g., onerous deposit or loan), it seems that more than ordinary care is demanded and that usually the obligor may give preference to his own goods.

Restitution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers.—(a) If there was theological fault, restitution is due, unless the injured party took the risk upon himself. (b) If there was only juridical fault, it seems there is no natural duty of restitution, since no injustice was done; but a court may oblige to damages.

Two Cases in Which Culpability Seems Doubtful.—(a) When one has inculpably done or omitted something from which damage to another can be foreseen, and one has now become aware of the danger (as when Balbus lights a fire on his own property and sees that a change of the wind makes this fire dangerous for his neighbor’s barn), one must prevent the damage, if this can be done without equal or greater damage to oneself; otherwise one must make restitution.

(b) When one has culpably done or omitted something from which damage to another was foreseen, but has tried, though in vain, to prevent the damage after the cause was placed, restitution is due if the cause was physical (e.g., Claudius gave poison to Titus, and then moved by remorse gave an antidote, but Titus died), since the party who set the cause in operation is responsible; but if the cause was moral (e.g., Balbus ordered a gunman to beat up Caius, but withdrew the order, and the gunman on his own responsibility then assaulted Caius), restitution is not due when the revocation ends one’s influence upon the damage that ensues.

Three Kinds of Unlawful Possessors.—The second root of restitution mentioned above (1762) is unjust possession, which includes the acceptance or the retention of another person’s goods against the latter’s will. There are three kinds of unlawful possessors:

(a) the possessor in good faith, who is one that has been invincibly ignorant of the unlawfulness of his possession, but now learns his error (e.g., a buyer who discovers that the horse he purchased did not belong to the seller but was stolen property);

(b) the possessor in doubtful faith, who is one that has serious reasons for fearing his possession is unlawful (e.g., the buyer of a horse learns that the seller is known to have sold some stolen property, or that the price he charged for the horse was remarkably small);

(c) the possessor in bad faith, who is one that knows his possession is unjust (e.g., a buyer who purchases a horse which he knew had been stolen by the seller).

Obligations of the Possessor in Good Faith in Reference to the Property Itself.—(a) If the property is still in his keeping, he is generally obliged to return it to the owner, for a thing calls for its owner. An exception would be the case in which the possessor can not return the property to the owner without a greater loss to his own property.

(b) If the property has perished, the possessor is generally obliged or not to restitution according as he has been enriched or not by the property; for one person should not be enriched at the expense of another, but property perishes to its owner.

(c) If the property is in possession of a third party to whom the possessor transferred it, he is generally obliged or not to restitution to the third party, on the latter’s dispossession, according as he has been enriched or not by the third party’s goods; for if he received nothing for the goods, he is clearly bound to nothing, but if he received payment, he must indemnify the buyer who is evicted for lack of title.

Obligations of the Possessor in Good Faith in Reference to the Fruits of the Property.—(a) He must restore the fruits of the thing itself that are in existence, for the thing fructifies to its owner. Hence, he should restore to the owner the natural fruits (e.g., the fruit on the owner’s trees) and the civil fruits (e.g., the money received from hire of the owner’s horse).

(b) He must restore the fruits of the thing itself which are not in existence, but from which he has been enriched (e.g., the net profit from last year’s crops which the possessor has in the bank).

(c) He is not obliged to restore the fruits of his own labor or industrial fruits (e.g., the extraordinary interest derived from the owner’s money through the good judgment and energy of the possessor), nor the fruits that he consumed without enrichment (e.g., the vegetables he gave away or wasted).

Rights of the Possessor in Good Faith in Deducting Expenses.—(a) He may deduct for all expenses that have benefited the owner, that is, for all the money he spent in necessary or useful ways in preserving or caring for the property. (b) He may not deduct for expenses that have not benefited the owner, or which the owner would not have reasonably authorized, such as special beautification of the property. But he may take away such adornments added by him as can be removed without injury to the property.

Obligations of the Possessor in Bad Faith in Reference to the Property Itself.—(a) If the property is still in his keeping, he must return it to the owner, for a thing calls for its owner. But if the actual possessor had the property from the thief and could not restore it to the owner without serious loss to himself, it is held by some that he could return it to the thief in order to recover his money.

(b) If the property has perished or restitution of it has become impossible, he must compensate the owner, even though he has not been enriched, unless the goods would have perished equally with the owner; for he is then the efficacious cause of the loss. The same principle may be applied to damages through deterioration. The civil law often holds the thief responsible, no matter how the goods perished in his hands.

(c) If the property is in possession of a third party who bought it in bad faith from the possessor in bad faith, the seller is not bound to restitution to his purchaser on the purchaser’s eviction, unless there was agreement to that effect; for he who buys, knowing that there is no good title, buys at his own risk.

Obligation of the Possessor in Bad Faith in Reference to the Fruits of the Property.—(a) He must restore the natural and civil fruits, even though the owner would not have obtained them from the thing, but he may keep the industrial fruits.

(b) He must make restitution for the profits lost and the losses suffered by the owner through the unjust deprivation of his property, for these are damages of which the possessor was the unjust and efficacious cause.

Obligations of the Possessor in Doubtful Faith Who Began Possession in Good Faith (Supervening Doubt).—(a) If he does not culpably neglect attempts to settle his doubt, he becomes a possessor in good faith. If the doubt is settled against him, he must restore (1771); if the doubt continues, he may retain possession and prescribe (i.e., acquire ownership through long exercise of ownership rights), for presumption favors the possessor, but he must he willing to restore, should another appear as the rightful owner.

(b) If he culpably neglects attempts to settle the doubt, he becomes a possessor in bad faith. If the doubt is settled against him, he must restore (1800), at least for the time during which his culpability was grave; if the doubt continues and its settlement is impossible through his fault, it seems that he should share ratably with another claimant according to the strength of the respective claims; if the doubt continues and there is no other claimant, it seems that he may act on the principle that presumption favors the possessor.

Obligations of the Possessor in Doubtful Faith Who Began in Bad Faith (Antecedent Doubt).—(a) If the property came to the possessor in doubtful faith without legal title (e.g., by violence), he has the obligations of one in bad faith, for presumption favors the former possessor.

(b) If the property came to him by legal title (e.g., by gift or sale), but from a former possessor of doubtful or suspected faith (e.g., one who seemed to have the property through theft), he must attempt to settle the doubt. Should the doubt nevertheless continue, some think he should divide it with another probable claimant, but others believe he may retain all.

(e) If the property came to him by legal title and from a former possessor in good faith, he must attempt to settle the doubt; but if the doubt remains in spite of his inquiries, he may retain the property in good faith, as long as matters continue in the same state.

Whether there is an obligation of restitution from unjust taking; what in a case of doubt? It is undoubted that from the unjust taking of another's thing an obligation of restitution arises. For if another's thing has been unjustly accepted, it is possessed either by no title or by an invalid title; and therefore that thing cries out for its owner.

Inst. l. 4, t. 1, 2; St. Thomas, 2. 2, q. 62, a. 6; L. 548. But one thing can be asked here: Whether someone unjustly accepts another's thing when he begins possession with doubt concerning his right. Now in truth, he could begin possession here in two ways: 1. By despoiling another, without any title of itself able to transfer ownership; and in this case, since the peaceful possession of another gives a morally certain right, the despoiler is bound to restitution. 2.

By accepting a thing under another title, e.g., of purchase, donation, etc., from another concerning whom it is doubted whether he is its owner; and then one is bound to inquire into the truth of the matter, and, if doubt perseveres, "he must restore," says Father Gury, 652, "according to the proportion of the doubt, to the probable owner, or to the poor, if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor from another source does he seem bound to restore the whole, since he doubts whether the thing is another's and not his." But even if that doubt is not merely negative, but positive, he seems to be held to nothing; for he can then form conscience from reflex principles: no one is evil unless proved, etc.; nor from another source can a certain obligation be imposed which certainly is not established. Moreover, he can use the right of him to whom he succeeds by title of purchase, donation, etc. Wherefore, if that one possessed the thing in good faith and therefore could retain it, the one who succeeds him will also be able to retain the same thing for himself. Lugo d. 17, n. 83. Finally, he can retain the thing by title of occupation or possession until the owner appears; and if he does not appear, it can rightly be presumed that no owner is present, if, e.g., someone found a gem on the shore of the sea and doubts whether the thing belongs to no one, or was lost by some traveler. Cf. here 1334. But to what one retaining and continuing possession with doubt concerning his right is bound, cf. 1352-1354. - St. Thomas, 2. 2, q. 62, a. 6; L. 547, 625; Gousset 939, 1028; d'Annibale, ed. 4, p. 2, n. 121.

From what fault does the grave obligation of restitution arise in delicts? It arises only from broad juridical fault joined with grave theological fault; likewise from light and very light juridical fault when someone, by grave theological fault, omits that diligence which he was bound under grave obligation to employ. "The reason is that restitution is commonly accepted as a penalty; and therefore we say that, in order that due equality be preserved, for the grave obligation of restoring a thing of grave value, grave theological fault is required. Theological, because since conscience is burdened concerning the obligation, it is necessary that there have been a delict in conscience. Grave, because in order that conscience be held to a grave obligation, it is necessary that the fault have been grave." L. 550, 551; C. A. 1295; Inst. l. 4, t. 3, §§ 6, 7. Cf. n. 1072.

"Whether a venial sin against justice induces the obligation of restoring? If it is venial by reason of smallness of matter, it certainly obliges to restitution under light obligation. But if it is venial by reason of inadvertence or indeliberation... The first opinion affirms.... Yet the second, more probable and more common opinion... teaches that in that case there is no obligation of restoring... neither under grave nor under light obligation. Not under grave, because a grave obligation does not have proportion with that light fault. Not under light, because a light obligation does not have proportion with a grave thing." L. 552.

Whether from a light sin against justice because of smallness of matter there can sometimes accidentally arise a grave obligation of restoring?

Resp. "Affirmatively, and the case is when in the last little theft, completing grave matter, the thief does not advert to the past little thefts; for then he is held under grave obligation to restitution at least of the last little theft.... The graver obligation then does not arise from that last unjust taking... but arises from the unjust retention of grave matter already culpably accepted." L. 553. And in the case of damage inflicted, when this is now grave, grave sin is now present, and the owner certainly is gravely unwilling if it is not repaired. E. M.

What sort of obligation of restitution is had from unjust profit? Resp. An obligation of restitution is had first from the fact that someone has been unjustly made richer from another's thing. This head of restitution, from the fact that someone has been unjustly made richer from another's thing, does not regard another's thing itself, but profit made from another's thing and fruits received from another's thing; and not any fruits whatever, but fruits immediately received from another's thing, by which someone has been unjustly made richer, as we have already explained. Cf. 1341. But concerning restitution of profit and fruits of this kind we have already said enough. Cf. XXII. Wherefore nothing remains to be added here. Moreover, the obligation of restitution by reason of unjust profit is had in every contract in which someone does not preserve due equality; and restitution then must also be made from another cause, namely from the cause of contract, concerning which it will have to be spoken below. But this must be noted: that as another's thing is a source of restitution, so from the fact that someone has been unjustly made richer there is another source of restitution; for restitution must then be made not of another's thing itself, but of the profit unjustly made, as can be seen, e.g., in a mandatary, borrower, depositary, mutuum by reason of usury, acceptance of what was not owed, etc.

626. • Principles. I. Restitution in reality, or at least in vow, is absolutely necessary of itself for salvation if it is a matter of grave matter.

1. It is evident from the principles established above, n. 532. For commutative justice necessarily demands that the violation of another's right cease; but it cannot cease except through restitution. Therefore.

2. It is evident also from Sacred Scripture. Thus Ezek. 33:14: But if you say to the impious man: You shall die the death; and he does penance for his sin, and does judgment and justice, and that impious man has restored the pledge and has returned robbery..., he shall live life and shall not die. - And Epist. St. Jas. 5:4: Behold the wages of the laborers who have reaped your fields, which have been defrauded by you, cry out; and their cry has entered into the ears of the Lord of Sabaoth.

3. It is evident from the unanimous consent of the Holy Fathers. Thus St. Augustine, ep. 153 to Macedonius: The sin is not forgiven unless the thing taken away is restored, when it can be restored. - These words of the holy Doctor were inserted into Canon Law (Decret. Gratiani, cap. Si res aliena 1, causa 14, q. 6); and thence the fourth rule of law in the Sext: Sin is not forgiven unless the thing taken away is restored.

I said in reality or in vow; for restitution is not necessary by necessity of means for salvation in reality; wherefore if it is impossible in reality, it does not obstruct salvation. But no one can be excused from restitution in vow; and whoever has injured another's right must always have a firm purpose of restoring when he can; for otherwise he would retain affection toward an evil thing, and thus would be found in habitual sin. - Thus all. - Hence St. Augustine in the text just cited says: when it can be restored.

629. • Q. 2. Whether an obligation of restitution is induced from an action affectively only, but not effectively injuring another's right?

Resp. Wholly negatively, because no real injury is inflicted on the neighbor, although the agent sins gravely by an internal act against justice. Hence a malicious judge bringing forth a sentence which he thinks unjust, if in reality it is just, is to be exempted from the burden of restitution; or he who snatches away a thing which he thinks another's, while it is his own. - St. Lig., n. 556. - Recall what was said above, n. 602, 605.

Q. 3. Whether sins are multiplied by delay of restitution?

Resp. More probably negatively, if the bad will of not restoring habitually perseveres. - St. Lig., l. 5, n. 40. - Recall what was said in the Treatise on Sins, n. 166.

1. Gervasius, supreme Minister of the interior order in a kingdom, knows well that from his weak and negligent manner of acting many damages have come to private persons on account of public robbers and highwaymen, and likewise many damages have come to the Society itself and to several civil Communities, on account of the unjust administration of public affairs, and especially on account of unjust taxes, by which certain particular Communities were overburdened.

Nevertheless he himself thinks that in truth he is not bound to any restitution, because, he says, with my conscience as witness, I have killed no one, and I have stolen nothing, nor have I unjustly received anything from anyone, or even from the Government.

Q. 1. Whence does the obligation of restitution arise? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1319 seqq. — To the 2nd. Gervasius, on account of grave negligence in preventing delicts, in punishing crimes, in watching and prescribing the due ordinances to be observed, certainly was the cause why private persons and Communities suffered grave damages. Wherefore he is certainly held to restitution. For he is guilty of neglected office and of a violated contract, by which he implicitly obligated himself to prevent damages to his subjects. As to damage inflicted on private persons, restitution must be made to those private persons themselves. As to damage inflicted on Communities, restitution must be made to the Communities themselves.

Gervasius is likewise guilty by reason of unjust cooperation toward injurious acceptance. For someone is held to restitution not only by reason of the alien thing which he accepted, but also by reason of the injurious acceptance. And therefore whoever is the cause of an unjust acceptance is held to restitution. Now Gervasius was the cause of that acceptance, both directly, by the iniquitous and unjust administration of public affairs, and indirectly, by not impeding it when he could and ought to have done so. And thus St. Thomas, 2.2. q. 62. a. 7, says: To restitution “he is held who does not oppose when he is bound to oppose; as princes, who are bound to keep justice in the land, if through their defect robbers increase, are held to restitution, because the revenues which they have are, as it were, stipends instituted for this, that they preserve justice in the land.”

Gervasius is besides guilty of rapine, which to the malice of theft adds the malice of violence and of personal injury. S. Thom. 2.2. q. 66. a. 5.9. Rapine indeed is had by coercion brought to bear for paying unjust taxes, and for carrying out other unjust laws, e.g., usurping ecclesiastical goods, etc. Appositely the same Angelic Doctor, in the cited place, a. 8: “It must be said that rapine imports a certain violence and coercion, by which, contrary to justice, that which is his own is taken away from someone. But in the society of men no one has coercion except through public power; and therefore whoever by violence takes something away from another, if he is a private person, not using public power, acts illicitly and commits rapine, as is plain in robbers. But to princes public power is committed for this, that they be guardians of justice; and therefore it is not lawful for them to use violence and coercion except according to the tenor of justice: and this either by fighting against enemies, or by punishing citizens who are evildoers; and that which is taken away by such violence does not have the character of rapine, since it is not contrary to justice. But if, contrary to justice, some persons through public power violently take away the things of others, they act illicitly, and commit rapine, and are held to restitution.... If Princes exact from subjects that which is owed them according to justice for preserving the common good, even if violence is employed, it is not rapine. But if Princes unduly extort something by violence, it is rapine, just as also robbery.... Whence they are held to restitution, just as robbers are; and they sin so much more gravely than robbers, as they act more dangerously and more commonly against public justice, whose guardians they have been placed.” — I. M. 1320, 1323.

2. Caietanus, the servant of a priest, steals from his master one hundred lire, enclosed in a certain schedule, upon which was written: alms for 50 Masses, which in the months of November and December must be celebrated for the deceased Lord Eligius. Caietanus hid the aforesaid sum in a certain secret place. Then, seeking it, he no longer found it.

Q. 1. Must restitution be made from unjust acceptance? — 2. Must Caietanus restore the one hundred lire to his master, or is it enough that he have 50 Masses celebrated by some priest in the aforesaid months, with an alms of 100 lire given?

R. To the 1st. Affirmatively. “The very acceptance of another’s thing can stand in three ways. For sometimes it is injurious, namely existing against the will of him who is the owner of the thing, as is plain in theft and rapine; and then he is held to restitution, not only by reason of the thing, but also by reason of the injurious action, even if the thing does not remain with him. For just as he who strikes someone is held to recompense the injury to the one who suffered it, although nothing remains with him, so also he who steals or plunders is held to recompense the damage inflicted, even if he has nothing from it; and further he ought to be punished for the injury inflicted. — In another way someone accepts the thing of another for his own utility, without injury, namely with the will of him whose thing it is, as is plain in loans for consumption; and then he who has accepted is held to restitution of that which he accepted, not only by reason of the thing, but also by reason of the acceptance, even if he has lost the thing; for he is held to recompense him who did a favor, which will not be done if by this he incurs damage. — In a third way someone accepts the thing of another without injury, not for his own utility, as is plain in deposits, and therefore he who has so accepted is held in nothing by reason of the acceptance; indeed, rather, by accepting he renders service. But he is held by reason of the thing. And on account of this, if the thing is taken away from him without his fault, he is not held to restitution; but it would be otherwise if through his great fault he lost the thing deposited.” S. Th. 2.2. q. 62. a. 6; I. M. 1327.

To the 2nd. From what was said in the response to the 1st, it is plain that Caietanus is altogether held to restitution, although he no longer has the one hundred stolen lire, but has lost them, or another has stolen them. “And therefore,” the Angelic Doctor proceeds in the cited place, ad 1, “although he who took the thing does not have what he accepted, but it has been transferred to another, because nevertheless the other is deprived of his thing, he is held to restitution to him, both he who took the thing by reason of the injurious action, and he who has the thing by reason of the thing itself.” But it is not enough that he himself have the aforesaid Masses celebrated, but he must restore the aforesaid stipend of the Masses to his master; otherwise there would not be restitution. “Through restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things. But an equalizing of things of this sort could not be made unless, to him who has less than what is his own, that which is lacking were supplied. And for this supplying to be made it is necessary that restitution be made to him from whom it was accepted.” S. Th. 2.2. q. 62. a. 5.

3. A certain Bonze, prepared to bid farewell to the errors of ethnic superstition and to give his name to the holy Catholic Church, asks that it be permitted to him to retain the things which he had previously received in the ethnic office which he exercised, and the things which he had acquired in the exercise of the medical art.

R. He is not to be disturbed, provided certain injustice has not intervened from elsewhere. And indeed no doubt is to be raised as to the emoluments of the medical art, since they hold the place of wages. Likewise, the things which the Bonze sought for himself from the priestly office among the pagans, although they flowed from a superstitious source, nevertheless seem to have come to him legitimately, as things which were proper to the pagan people, and by its consent attributed to its priests in place of an honorarium.” Provided certain injustice has not intervened from elsewhere; for justice, proceeding from the law of nature itself, obtains force among all peoples everywhere. Therefore if there are things which the Bonze knows certainly that he unjustly received, whether in the exercise of the medical art or of the priestly office, it is necessary that he restore them to the owner, or to his heir; or, if both are uncertain, they are to be distributed to the poor. S. O. 14 Jan. 1846; Collectan. S. C. de P. F. n. 2117.

4. Hesperus, having Elisa, a daughter of marriageable age, whom he is unable to dower, furtively stole from Heraclitus one thousand lire, with which he was easily able to join her in marriage with Gensericus. After some years from the marriage, Gensericus learns that the dowry brought to him by his wife had all been taken from Heraclitus by thefts.

Q. 1. Must restitution always be made from another’s thing? — 2. What must be done in the Case?

R. To the 1st. Affirmatively. “By reason of the thing he is held to restore it so long as he has it with him; because that which he has beyond that which is his own must be taken from him and given to him to whom it is lacking, according to the form of commutative justice.” S. Th. 2.2. q. 62. a. 6; I. M. 1331 seqq.

To the 2nd. “If the spouse still preserves the dowry distinguishable from other monies, he must restore it, unless it has been prescribed in good faith, for every thing cries out to its owner; and the spouse must be numbered among those who, thinking they were marrying a rich woman, married a poor one. But if it was in good faith mixed by him with his own goods, similar in quality and greater in quantity, so that it cannot be separated, he is held to nothing; because by Common Law the dowry is considered morally consumed, Gloss on L. 78 ff. de Solut. Nor should you object: this man is held to that in which he has become richer; for since the dowry was given to him for sustaining the burdens of marriage, and he perceived no profit for himself from it, he has been made richer in nothing. Sporer, Croix. There are nevertheless some who wish that, standing in the law of equity, something to be restored ought to be cared for by the spouses. Certainly Hesperus the father would always be held for the theft, so long as he was able; for he dowered his daughter from the goods of another. Liguori l. 3. n. 612.” Scav. l. 2. n. 751.

But in truth not only from the law of equity, but also from strict justice, the spouse is held to restitution, even if that stolen money has already been mixed by him with his own money in a greater quantity. For although by the more recent Law the whole heap is his, nevertheless he has the obligation of rendering the owner of the stolen money unharmed, by reason of his thing, which he equivalently has. I. M. 907. Nor truly can anything else be drawn from the cited place of St. Alphonsus.

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.

485. That doubt can precede or follow the damaging.

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

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

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

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

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

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

516. Nine are commonly enumerated, comprehended in these verses:

Command, counsel, consent, flatterer, refuge,

Participant, silent, not opposing, not revealing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

³ Crolly, t. III, n. 703.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

587. 1. He who in any way impedes another from attaining some good to which he has a strict right, whether in a thing or to a thing, commits true injustice, and is bound to restitution proportioned to the damage inflicted.

Thus, e.g., if an advocate impedes a creditor from obtaining payment of a debt; if someone by prayers, persuasions, or other means induces a father to deprive a son of the legitimate part of inheritance to which from civil law he has a strict right.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the things said you will gather these applications.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

203. Principle. Restitution is the proper act of commutative justice, or in other words: the obligation of restitution arises only from a violation of commutative justice, but not of distributive or legal justice.⁵

The reason is that it belongs to commutative justice alone to establish strict equality of thing to thing (between what was given and what was received, between damage and compensation). But in distributive and legal justice there is only an equality of proportion.⁶ Restitution, however, establishes strict equality of thing to thing. Therefore it is the proper act of commutative justice. Distributive or even legal justice is often joined with commutative justice, and then certainly per accidens their violation also induces an obligation of restitution; e.g., a superior distributes taxes unjustly, so that on account of unjust favor toward one person another is held to pay more and suffers real damage.⁷ - It must be noted that not every violation of commutative justice induces a strict obligation of restitution; e.g., a husband committing adultery violates commutative justice toward his wife, but nevertheless he is not held to restitution unless damage compensable by money has also arisen from the adultery.

⁵ Thus the most common opinion, to which Cajetan, Molina, and Vasquez are said to contradict (in Vermeersch, Quaest. de iust. n. 156); Cajetan, however, is cited undeservedly. For although in his commentary on 2, 2, q. 63, a. 2 he teaches that an unjust distributor of ecclesiastical benefices is sometimes held to restitution toward him who had a right to the benefice, he constantly asserts that restitution is an act of commutative justice. But all theologians teach with St. Thomas (S. theol. 2, 2, q. 62, a. 1 ad 3) that an unjust distributor is sometimes held to restitution, yet not on account of distributive justice alone having been violated, but on account of the conjoined commutative justice having been violated.

⁶ S. theol. 2, 2, q. 61, a. 2.

⁷ Cf. Billuart, l.c.

St. Alphonsus, III, n. 542-582; ed. G., II, p. 52; Soto, L. IV, c. 7, a. 3; Reuter, P. III, tr. III, c. 2; Lehmkuhl, I, n. 1127 seqq.; Noldin, II, n. 437; Aertnys, tr. VII, n. 307; Genicot, I, 511; Loenartz, Restitutionspflicht des Besitzers fremden Gutes; Carriere, n. 1035 seqq.; Ciolli, Dir. prat. du j. conf., II, 230.

934. To restitution are held: 1. the unjust possessor of another's thing; - 2. the unjust damager; - 3. the unjust cooperator.

Another's thing can be possessed unjustly in a threefold way: 1. with good faith, in which case there arises the obligation of restoring from the first root only, that is, from the thing accepted; - 2. with bad faith, and in this case there arises the second root, namely unjust acceptance; - 3. with doubtful faith, from which, according to the various conditions of the doubt, the first or the second root can arise.

DEFINITION. A possessor of good faith is he who invincibly is ignorant that the thing possessed by him is another's. As is clear, such a one does not injure the right of his neighbor except through merely material injustice (I, 34).

In civil Law, he is called a possessor of good faith who possesses as proprietor, from a title transferring property, the defects of which he is ignorant.⁰¹

935. PRINCIPLES. I. A possessor of good faith ought not to become rich from another's thing. There is exception if the thing has already been prescribed; in which case he does not become rich from another's thing, but from a thing which, by force of laws, has been made his (III, 556, 607).

II. A possessor of good faith ought, of himself, to be preserved unharmed: that is, just as he can acquire nothing from another's thing, so he ought to lose nothing; because he is not in fault.

We said of himself, because, in a case of conflict between the possessor and the owner, the owner of the existing thing is superior in right; but laws, on account of the common good, sometimes favor the owner of the thing, sometimes the possessor.

From these principles flow the possessor's obligations and rights, both as regards the thing itself and as regards fruits and expenses.

936. A. Rights and obligations as regards the thing itself. 1. If he still has the thing, for example a horse, money, etc., once the error has been discovered, he is held to restore to the owner the thing existing in whole or in part. For the thing cries out for the owner. Thus from natural and Roman Law.

From French, Italian, Austrian, and Spanish Law, he who has bought a thing in a public market, or from a merchant selling such things, is not held to return it to the owner unless the price is refunded to him; and the owner of the thing can afterward in turn seek this price from the seller.⁰²

From English Law, if the thing was bought in fairs or markets (market overt), except in the case of eviction by the sentence of a judge, ownership is likewise transferred to the buyer of good faith.⁰³ And since this has been established for the security of commerce, the thing can be retained with a safe conscience.

From German Law, he who in good faith has acquired another's thing, not stolen nor lost, from a person not suspect, by that very fact becomes the owner of the thing and can retain it. Indeed, although afterward it is established that it is stolen or lost, he can retain it if he acquired it in an auction, or if it is a question of money, or of titles (titres au porteur). In every case it becomes his after ten years.⁰⁴

2. If the possessor no longer has the thing, in reality or in equivalent, he is held to nothing; because a thing naturally perishes for the owner; unless he has become richer.⁰⁵ In this case he must restore to the owner that in which he has become richer. Now he is said to have become richer who either has spared his own thing while using another's, or has something which otherwise he would not have had. In doubt whether he has become richer, he is held to nothing; because in doubt no one ought to be deprived of his own thing (III, 706). Cf. above n. 45.

Hence: a) If in good faith you have bought a thing taken by theft and sold it without profit, you are held to restore nothing; but only he with whom the thing is. But if you have received profit, you must refund this, unless it is the fruit of your industry, to the owner seeking it. - b) If you have sold another's thing given to you by gift, you must return the whole price, by which you have become richer; indeed to the owner, if he is unable otherwise to recover his right; but to the buyer, if the thing itself has already been restored to the owner. - c) If you have donated or consumed the thing, sparing your own things, you are held to restore as much as you have spared. - d) If you have donated or consumed the thing solely because you had it, and otherwise would not have donated nor consumed an equivalent, you are held to nothing (III, 601, 609).

Note. When a donation of another's thing has been made, the donor, once the error has been discovered, is held from charity to warn either the donee, that he return the thing to the owner, or the owner himself, that he may be able to recover his own thing. Indeed, from the reason of justice, he seems to be held to the same thing, namely from the obligation which the author even of merely material injustice incurs (III, 564).

3. If the possessor has sold the thing, and it has perished in the hands of the buyer: a) he is held to nothing, if he had the thing from an onerous title; for the obligation

of restoring arises neither by reason of the thing, which he no longer has, nor by reason of damage, of which he is not the cause; - b) he is obligated to restore the price of the sale if he obtained the thing from a gratuitous title; for in this he has become richer. But restitution can be made at will either to the buyer or to the owner, since the rights of each appear equally founded.

Except: 1. if the thing would equally have perished with the owner, for example from age; 2. if it perishes by the buyer's fault; 3. if the law disposes otherwise (III, 607-609).

Note. There are not lacking authors who say that, even in the case in which the possessor received from a gratuitous title the thing which has perished, he is held to nothing. See Noldin, II, n. 439, 2.

937. B. Rights and obligations as regards fruits. 1. No one is held to restore industrial fruits, because they are not the fruits of the thing, but of the man who has gained them by occasion of the thing or through the thing. Hence he who, by negotiating with another's money, has acquired riches for himself, is held to bestow none of these upon the owner of the money (III, 610 and 825).

2. As regards natural and civil fruits: a) From natural Law, the possessor of good faith must restore all certain fruits, for example of letting, whether existing or even consumed, insofar as he has become richer from them; expenses and labors, however, being deducted. And the same must be said of mixed fruits, insofar as they are not industrial (III, l. c.). b) But from positive Law, he certainly is not held to restore prescribed fruits, and probably also those already received.

French, Spanish, Austrian, Italian, and German Law transfer to the possessor of good faith all fruits received during his peaceful possession⁰¹ (except, in Germany, fruits received from a thing accepted by title of donation or inheritance); and this disposition of law more probably has force also in the forum of conscience, since it favors the public good by removing innumerable difficulties and complaints which could continually be stirred up concerning fruits to be restored. Thus Gousset, Gury, Del Vecchio, Porpora, and not a few others.

938. C. Rights and obligations as regards expenses. From natural Law: 1. It is licit for the possessor of good faith, when restoring another's thing, to deduct necessary expenses, indeed useful expenses, which he has made for the conservation or increase of the thing. Otherwise the owner would receive more than is his. - 2. But he can demand back or retain nothing for merely pleasurable expenses, which namely he has spent on the ornamentation of the thing, for example for paintings, gardens; because it is not equitable that the owner tolerate costs made on things useless to him. The possessor can carry away the ornaments themselves, provided he does this without detriment to the thing.

Modern laws confirm natural Law almost entirely.⁰² Yet they raise several difficulties in estimating the facts; nor before the sentence of a judge do they compel the owner of the thing to refund expenses doubtfully useful or doubtfully necessary.

939. Questions. QUAER. 1. Whether he who in good faith buys a stolen thing can return it to the thief in order to recover his price?

Resp. 1. Negatively, if the owner appears seeking his own thing. For then he must return it to him, even with the loss of his own price; because by natural Law the owner can occupy his own thing in whatever place he finds it; nevertheless an action is given to the buyer against the thief. - But see n. 936, 1, as regards civil laws.

2. If the owner does not seek his own thing, very probably, and perhaps more probably, the buyer, to whom no other way is available for preserving himself unharmed, can remit the thing to the thief in order to recover his money: both because no one is held to preserve a thing for the owner with equal damage to himself; and because each one has the right to recover his own goods; "and an action is forbidden to no one which is of itself necessary and direct for repairing his own damage, although indirectly and accidentally damage may thence come upon another" (III, 569).

QUAER. 2. What then must be done if you indeed know that the thing possessed by you is another's, but you do not know the owner?

Resp. Concerning this one must determine as concerning a thing found (cf. n. 886). Therefore, if the owner cannot be found, you can retain the money. "And the same must be said of a poor person to whom a thief has given the theft, when the owner has not been found. For if there was no hope of finding him, ownership has already been transferred to the poor person, so that he is not held to return the thing to the owner, even if the latter afterward appears" (H. Ap., X, 69, fin.).

Note. If the possessor of good faith is in culpable delay in restoring, he begins to be of bad faith; and therefore he is held to compensate the damage coming from the delay, as will be clear from the things to be said. But since he must restore in the place where the owner dwells, if the owner is absent, he can defer restitution.

DEFINITION. A possessor of bad faith is he who accepts or retains a thing, knowing that there is no just title for himself for accepting or retaining it. He injures the right of another through formal injury.

940. PRINCIPLES. I. A possessor of bad faith, from the title of the thing accepted, can never become rich from another's thing. The reason is evident.

II. A possessor of bad faith, from the title of unjust damaging, must render the owner of the thing unharmed; in other words, he is held to compensate profit ceasing and damage emerging, at least foreseen in a confused way. The reason also is clear.

This, however, is understood if the owner has a full right in the thing; for if he possesses only a right to a thing, compensation must be weighed according to the value of the hope which the owner had of making the thing his own.

941. From these principles flow the following obligations:

A. Obligations as regards the thing itself. 1. If the thing still exists, it must be restored in the individual. Yet if the thing, which would not have been worse with the owner, has come into a worse state with the thief, the latter is held, at the owner's option, either to restore it with the value of the detriment done added, or to restore its price in full (III, 620).

We said: it must be restored in the individual, and indeed even if the thing taken away has meanwhile increased in price, and notwithstanding that the owner would have consumed it before its increase; for the thing, as long as it exists, bears fruit for the owner.

Note. If the stolen thing first increased in price and afterward decreased, the greater price must be restored. The reason: the thing bears fruit for the owner, and the thief by culpable delay is the cause of the damage which the owner suffers, because the owner was unable to use his thing while it was worth more (H. Ap., X, 78).

2. If the thing has perished, even by a fortuitous event, it must be restored in equivalent. The reason: it is presumed that it would not have happened that the thing perished with the owner. - Moreover, because of the taking away, the thief has taken every damage upon himself.

A fortiori, it must be restored in equivalent if the thing has perished by the fault of the thief alone or of another; for example, if a horse was killed for this reason, that it had been led away by the thief from a safe place. - The obligation of restitution does not cease from the fact that, after the destruction of the thing, a common danger arrived in which the thing certainly would have perished; because the obligation has already been contracted.

Note. a) Yet if the thing perished without the thief's fault, and otherwise would certainly have perished with the owner, the thief is held to nothing; for there is only injury without damage.

b) If the thief, at the same time at which he foresaw the threatening ruin, consumed the thing, he would probably be held to nothing.

c) If, after the common danger had passed, the thing perished in another common danger, the thief in practice is held to nothing else than to restore only the fruits of the thing which the owner would have received from the thing (H. Ap., X, n. 79). The reason: culpable delay in restoring impeded the owner from receiving them.

d) Several modern Codes oblige the thief to restore the price, in whatever way the thing has perished or been lost (French Code, 1302; Italian, 1298; Spanish, 457). This, however, binds the conscience only after the sentence of a judge.

B. Obligations as regards fruits. A possessor of bad faith is held to restore all fruits, both those which he himself has usefully received and those which he has consumed without thence becoming richer; and besides, all the fruits which the owner would have received from his own thing.

Thus a thief is held to restore stolen money with interest, if it is established or conjectured that the money would not have remained idle in the owner's possession. This must most certainly be conjectured according to the custom of men today, if it is a question of a great sum of money, and especially because civil Law also binds one to pay interest even for small sums. H. Ap., X, 74.⁰³

Note. 1. But lest we go beyond measure in computing unfavorable consequences, it is useful to note that evils which are inflicted on someone are not to be extended to empty possibilities, but are to be measured as they are usually appraised from the common estimation of men. Thus, for example, it would be ridiculous to propose to him who killed another's hen a calculation of how many chicks could in the course of time have been born from this hen. Account must likewise be taken of accidents in which things can perish; likewise of those expenses which would have had to be made for the sake of repair, etc.

2. As regards industrial fruits, these can always be retained. Therefore if someone has stolen small trees and planted them, he must restore not the trees which have grown, but the price of the small trees; which price, indeed, must be greater. Roman Law says that a double price must be paid (Lehmkuhl, Cas. cons., n. 654).

C. Rights as regards expenses. A possessor of bad faith can deduct, besides industrial fruits, both necessary and useful expenses; indeed even merely pleasurable ones, where, with the substance intact, they can be separated.⁰⁴ - The reason is that he is held to no more than that he preserve the owner unharmed; but unless he can deduct expenses, the owner would make a profit, receiving more than is his. Except the case in which, as a punishment of the delict, he would be condemned to lose all expenses, at least non-necessary ones (III, n. 618).

942. Questions. QUAER. 1. What if another's thing has passed through the hands of several possessors of bad faith, by donation or sale?

Resp. 1. As regards the thing, it must be restored by the last possessor. If he fails, the robber is held for the price of the thing. But if neither satisfies, the rest must pay the price of the thing in equal portions. Finally, if the rest fail, each one is held to the whole. - 2. As regards the fruits and damages of the thing, each is held to compensation for the part of time for which he detained the thing. If the others do not restore for their share of damaging and fruition, the reparation of the whole damage lies upon each one, in proportion to the time elapsed from the day on which they successively became unjust possessors of another's thing.

QUAER. 2. Whether he who knowingly buys another's thing from a thief can return it to him in order to recover the price?

Resp. Doctors more commonly deny, as St. Alphonsus testifies. But the holy Doctor himself holds the affirmative opinion as absolutely probable and perhaps more probable. "The reason is that, although that man sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, just as the buyer of good faith, to rescind the contract," nor does he become guilty of the damage inflicted on the owner, because by returning the thing to the thief he does not place it in a worse state than he himself found it, from which, moreover, he was not held from justice to withdraw it (III, 570).

But otherwise, if, because of longer detention, the things could no longer be recovered by the owner.

943. From these things resolve: 1. He who carried another's grain elsewhere and sold it more dearly than the owner would have sold it is not held to restore that increase of price. But if he sowed the same grain in his own field, he is held only to return similar grain, so that the owner may be preserved unharmed. Likewise, if someone puts another's eggs under his own hen to be incubated, he is held to restore only the value of the eggs (III, 609, 8).

2. If someone accepts another's thing mixed with the thief's things, for example another's grain with the thief's grain, the one accepting, although in bad faith, is not held to restitution if the thief is equal to restoring; because what was accepted was now the thief's own, as we said in n. 888, 4. But if the thief for that reason would not be equal to restoring, the one accepting is held to restore, because through that acceptance he efficaciously influences the alienation of the thing, with detriment to the creditor (III, 612).

3. He who feigned himself poor in order to extort a notable alms is held to restore this to the owner or to other poor persons. Otherwise, if the alms had been small, or if one truly poor feigned himself upright (III, 622).

4. Those who on account of simulated poverty obtain pensions destined for poor youths who aspire to the priesthood are held to restitution, because they defraud the will of the benefactors, since they can comfortably complete the course of studies at their own expense. And the same must be said of those who are indeed poor, but apply themselves to studies for another end; but not of those who, not excluding at the beginning the intention of entering the clerical state, afterward, the matter having been considered more maturely, recognized that they were not called to such an institute of life; for these are sufficiently in good faith, and the benefactors themselves do not wish someone not called to creep into the priesthood (Konings, n. 703, 7).

944. NOTION. A possessor of doubtful faith is he who positively, because of probable reasons, doubts whether the thing which he accepts or possesses is his or another's (I, n. 37).

PRINCIPLES. I. Every possessor of doubtful faith is held seriously to inquire, so that thus he may lay aside his doubt. The reason is that, if he contemns a doubt of this kind, he exposes himself to the danger of retaining another's thing and of frustrating another at least of the hope of ownership.

Otherwise, if the reasons are slight; because these cannot weaken the moral certitude which possession itself begets (cf. n. 44).

II. While the inquiry is being made, the possessor of doubtful faith cannot abuse the thing as proprietor; nor can he alienate it, unless he has forewarned the new possessor of the existing doubt. But he can accept it, not with the intention of retaining it, as is clear, but with the intention of restoring it to the owner if, after diligent inquiry, the latter appears (Bouvier, de Jure, P. II, c. 2, a. 1, § 3).

But because doubt can arise when possession itself begins, or when possession has already begun, two things come to be discussed as regards restitution itself.

945. 1. He who in doubt has begun to possess, disturbing another from his possession, for example by taking away from the possessor a litigated thing, is held to restore the whole thing to him, unless it is established that he began possession with bad faith. For in doubt the condition of the possessor is better (Lugo, disp. 17, n. 80).

2. He who has accepted a thing with a title of itself legitimate, for example of donation or purchase, but with doubt whether it is another's and possessed in good faith by the predecessor, if after inquiry he remains wavering, is held to restore, in proportion to the doubt, to the probable owner, if he is known; or to the poor, if the owner is unknown.

The reason is that, on the one hand, possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole thing for himself; on the other hand, it does not seem equitable that he be obligated to restore the whole, since it is doubtful whether the thing is another's (III, 625). - Civil laws and the consensus of all cannot be invoked here so that possession of fact may become useful for such a possessor; for from the beginning positive good faith was lacking.

3. If none of the litigants in fact possesses the thing itself, and the doubt is equal, the thing, or its price, is to be divided equally between them. But if the doubt is unequal, it seems it must be divided according to the proportion of the doubt (Lacroix, l. 3, P. 2, n. 566).

Notice: 1. He who has accepted a thing or right, for example an inheritance, from a possessor of good faith, and has begun to possess with doubt, can protect himself by the right of his predecessor and conduct himself as if he were a possessor of good faith to whom doubt has supervened. - 2. He who doubts negatively whether his predecessor was in good faith can use the axiom: "No one is presumed evil unless he is proved so." - Otherwise, if he has found him in bad faith and doubts whether he began his possession with such a disposition of soul; because "once evil, he is always presumed to be evil," according to the 8th Rule of Law in the Sext (I, 36, 37). Recall the things said in n. 895.

946. 1. A possessor of good faith, to whom a doubt arises concerning a possessed thing from a probable motive, for a slight motive is to be contemned, if, due diligence having been used, he recognizes that the thing is another's, is held to restore it, together with that in which he has become richer, as a possessor of good faith.

2. If the doubt perseveres equal on both sides, or if the possessor has for himself a probable opinion and against himself a more probable one; or for himself mere possession, and against himself an opinion only probable: he can still retain the thing for himself until it has not been morally established, that is, by a proof overcoming the presumption of possession, that the thing is another's. - The reason is that as soon as the possession itself is certain and legitimate, that possession, although alone, by itself begets a certain presumption concerning the justice of possession, which outweighs all non-convincing reasons and yields only to truth (I, 35, 36). Cf. the things said in n. 45.

3. A possessor of another's thing who, after doubt has arisen, culpably has neglected to inquire, is held, if afterward the presumed true owner of the thing can no longer be found, to restore something, either to the presumed owner or to the poor, if the owner is uncertain. The reason is that "since he himself culpably deprived the owner of the hope which the owner could have had toward the thing, and that hope was indeed estimable by price, now certain damage has been inflicted on the owner, who also certainly possessed that hope." Thus the truer opinion, which St. Alphonsus defends (I, 37) against Tamburini (cf. Lehmkuhl, I, 1144).

Nevertheless restitution is not to be made in proportion to the doubt, but less and perhaps very much less; because the detainer of the thing is in a better condition, on account of the right of possession which favored him and still favors him; for possession of the thing is valued much more highly than possession of the hope.

Note. In one case the opinion of Tamburini perhaps could be sustained: if namely the possessor of another's thing doubts only in an indeterminate way whether the thing is another's. Cf. Genicot, I, 534, v. fin.

947. On doubtful payment. To what is a debtor held if he seriously doubts concerning payment having been made?

Resp. There are three opinions. The first opinion says that such a debtor is no longer held to payment, provided he himself did not culpably cause the uncertainty. Thus among the more recent authors, Waffelaert, Genicot, Noldin. Their reason is that, on the one hand, the debt here and now is uncertain, and on the other hand, no one is to be despoiled of his own thing unless the debt is established. - The second opinion judges that all things are to be arranged in proportion to the doubt. Marres, Ballerini, Lehmkuhl defend it. Lehmkuhl (I, 1147) explains the reason of this opinion thus: the value of that debt is in the peaceful possession of neither, neither of creditor nor of debtor, but is a thing concerning whose possession and property each contends with the other; hence, in proportion to the doubt, it is to be divided between the litigants. - Finally, the third opinion, which is that of St. Alphonsus (I, 34; H. Ap., I, 20), affirms that a debtor who truly doubts whether he has paid must pay the whole. Cf. also III, 700; H. Ap., X, 120. Lugo, Suarez, Vasquez, Sanchez, and others teach this opinion. The reason: the creditor, who is in possession of his credit, has a certain right to recover the whole. If the debtor, who doubts about payment, refuses to pay, he always exposes himself to the danger of injuring the creditor's certain and earlier right; which cannot be done, as we said in n. 84. For in doubts of a perilous fact, the safer thing must be followed, although our liberty is in some way restricted.

We said: 1. Who truly doubts. For the debtor would not be held to paying if, from things ordinarily or contingently by law occurring, he believes with moral certitude that payment has been made. Presumption will greatly assist here in practice.

2. He must pay the whole, namely in the case in which he alone doubted. But if the creditor himself also doubted concerning his right, the debtor would be held only to a part, in proportion to the doubt, because possession on each side is weak. "Nevertheless Laymann adds that he would not dare to condemn the creditor if he received the whole" (I, 34).

Note. The reason adduced by the holy Doctor is directed against the two contrary opinions, which for this reason are rejected by us. The first opinion especially does not appear safe. Lehmkuhl (l. c.) rightly says: "There are some who, in the case of doubtful payment, dispense from every further obligation; - which cannot be sustained by solid reason."

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).

720. • The roots of restitution are called the causes from which the obligation of restoring arises. But they are taken from a threefold head, namely 1° from acceptance of another's thing; 2° from unjust damaging; 3° from unjust cooperation, which nevertheless, as to the thing, falls back into one or the other of the preceding.

721. General Principle. - The owner alone of the thing has per se the right of possessing it, nor does he lose dominion of the thing into whosever hands it may at last come. - It is said, per se; because any other possessor, even one of good faith, has the right of possessing the thing only by accident and from invincible error. - But from this general principle these four very well-known axioms flow of themselves.

1° The thing cries out for its owner, that is, to the owner belongs the strict right of pursuing his thing, in whatever state and in whosever possession it may be, by a real action, which they call juridical vindication.

2° The thing fructifies for the owner; because use and fruition are necessarily included in the idea of perfect dominion.

3° The thing naturally perishes for the owner; because, with the object of dominion disappearing, dominion itself also vanishes. If nevertheless it still exists in an equivalent, the owner can seek that equivalent by a personal action.

4° No one ought to be enriched unjustly from another's thing; in other words: The measure of restitution is the quantity of another's thing detained without cause. The reason is clear; for to the owner alone of the thing belongs the receiving of utility from the same.

But these principles, besides the fact that sometimes according to diverse laws of places they receive diverse application, are moreover modified according to the diverse condition of the possessor. For one can possess another's thing either with good faith, or with bad faith, or with doubtful faith. Therefore it must be said 1° concerning the possessor of good faith; 2° concerning the possessor of bad faith; 3° concerning the possessor of doubtful faith.

A possessor of good faith is he who invincibly does not know that the thing possessed by him is another's, or prudently judges that it is his own, for example because he acquired it by a title of itself transferring dominion, suppose inheritance, legacy, donation, or purchase. But it is supposed that he has not yet prescribed the thing possessed; for otherwise he would no longer be the holder of another's thing, but of his own.

722. Principles. - I. A possessor of good faith, as soon as he knows that the thing possessed by him is another's, is bound to restore it to the owner, still existing in whole or in part or in its advantage; otherwise he retains another's good while the owner is reasonably unwilling, and therefore violates his strict right. - Thus all.

II. A possessor of good faith is bound to absolutely nothing, if, while good faith endures, he consumes, loses, or even destroys another's thing, provided he has not become richer from it. For he is not bound by reason of the thing received, which no longer exists; nor by reason of unjust acceptance, consumption, or destruction, because he possessed the thing in good faith. This is valid also if he deliberately destroyed the thing, or if it perished from his negligence. The reason is that he inflicted injury upon no one by destroying or neglecting the thing which he believed to be his own. It is confirmed also by positive law. For thus by Roman Law: "He who neglected as if his own thing is subject to no complaint."

I said: provided he has not become richer from it; because that in which he was made richer would succeed in the place of the thing. But it is against natural right that someone be enriched with the injury of another, according to rule 48 of Law in the Sixth. - In doubt whether he has become richer, he is bound to nothing. L. IV. 603; H. A. Tr. X. 55.

723. Questions. - Query 1° Is a possessor of good faith bound to restore the fruits which he perceived during good faith?

Resp. The fruits must be distinguished. For 1° some are natural, which by the benefit of nature come from a thing without any estimable work of man, as grasses, etc. 2° Others are industrial, having arisen from man's work without any estimable productive concurrence of the thing. 3° Others are mixed, or partly natural and partly industrial, as crops. 4° Others are civil, which are not fruits properly so called, but are held as such by Law through a certain analogy with true fruits, as the price of leasing a house.

I say: 1° A possessor of good faith is not bound to restore merely industrial fruits (under which probably also interest by occasion of a loan is included. L. IV. 759), since by reason of industry they belong to the possessor.

I say: 2° From natural right a possessor of good faith must restore all other fruits, whether natural or civil, still existing, and, insofar as he has been made richer from them, even those consumed, expenses and labors nevertheless being deducted. The reason is that from natural right fruits belong to him to whom the fruitful cause itself belongs, since they come from the thing itself, according to the axiom: The thing fructifies for the owner. (g) p. 481.

724. • Query 2° To what is a possessor of good faith bound if he has given another's thing to another?

Resp. He is bound to nothing if he has not been made richer at all, as follows from the things said above in principle II. Otherwise he must restore that in which he has been made richer, as is established from principle I.

Query 3° Once the donation has been made and the error detected, is he bound to warn the donee, that he restore the thing to the owner, or the owner himself, that he may be able to recover his thing?

Resp. He is certainly bound from the general principle of charity, if he can furnish this without grave damage to himself.¹ Whether also by reason of justice? There are those who affirm it on account of the obligation which the author of even merely material injustice incurs. See n. 749. q. 3°.

725. • Query 4° To what is a possessor of good faith bound if he has sold to another a thing bought from a thief?

Resp. 1° In the case of eviction, that is, if the owner has vindicated his thing from the buyer (n. 988), the seller is bound to return the price to the buyer. The reason is that the sale is altogether void from natural right. Therefore, when eviction intervenes, the contract must be resolved, and the buyer acquires recourse by the fact itself against the seller; for by handing the thing over to the buyer he implicitly obligated himself to repair the damage, if perhaps eviction would be future. Except: 1) If the seller has not been made richer from the price (in the sense to be declared below n. 989). 2) If the profit which he perceived by selling is the fruit of industry. 3) If in good faith it was expressly agreed concerning not restoring the price.² - The same must be said if another's thing has passed into the hands of various possessors by an onerous title. For if the last possessor is compelled to return the thing to the owner, both he and the individual buyers have the right of pursuing their seller, so that they may recover the price paid. - Yet this is not valid, that is, the seller, in no respect made richer from it, is not bound to restore the price to the buyer if the buyer spontaneously, or not evicted, restores the thing to the owner and thus impedes the seller from being able to recover his price.¹

Resp. 2° Outside the case of eviction the seller is bound to nothing unless he has been made richer from the sale. The reason is that the sale of another's thing with good faith is not held in law as altogether void. For although through it dominion of the thing is not transferred to the buyer, dominion of the price is nevertheless transferred to the seller. And this man indeed, even if later he detects that the thing sold is another's, in the case in which he can no longer recover the price for which he bought the thing, is not bound, with grave damage to himself, either to warn the owner so that he may be able to recover his thing, or to indicate to the buyer that the thing is another's. The reason is that he no longer has the thing, nor was he the formal cause that the owner was deprived of his thing.² Cf. what was said n. 724. q. 3°.

726. • Query 5° To what is a possessor of good faith bound if he has sold to another a thing received gratuitously?

Resp. 1° In the case of eviction the same resolution is valid which was given in the preceding case, n. 725. Resp. 1°.

Resp. 2° Outside the case of eviction, when namely the thing cannot be recovered by the owner, whether because the last possessor consumed it, or because he no longer appears, the seller, according to the common opinion, must pour back to the owner the whole price received from the buyer, if and insofar as he has been made richer from it. The reason is that one truly made richer from the price suffers no loss on its occasion; while on the contrary the owner, unjustly despoiled of his thing, is compelled to undergo the whole damage of the thing. Hence this man must be preserved harmless from the profit which the seller perceived without any title.³

727. • Query 6° If someone in good faith bought another's thing at a moderate price and sold it at a greater price, is he bound to return the profit perceived to the owner?

Resp. 1° Negatively, if that profit is to be attributed to extraordinary industry, for example if he went to another place by notable labor in order to find a suitable occasion of selling the thing more dearly, etc. The same must be said if, during the time of detention, the thing was made better by the care of the holder.

Affirmatively, on the contrary, if the thing increased from its own nature or from the common estimation of men, but not from the industry of the holder, because in that case it increases for the owner.

Resp. 2° In other cases, however, it is controverted. Some affirm it, because the possessor has been made richer from that profit. - Billuart, etc.

But others deny it more commonly and more probably, because that whole profit seems to be the fruit of the possessor's industry. - Thus Lugo,¹ and others sufficiently commonly, as Billuart admits.

728. • Query 7° To what is a possessor of good faith bound if he has sold another's thing and it perished in the hands of the buyer?

Resp. 1° If he had the thing by an onerous title, more probably he is bound to nothing. For 1° he is not bound by reason of the thing, since he no longer has it; 2° nor by reason of damage, since he is not the culpable cause why the owner can no longer vindicate it for himself; for he bought and sold in good faith.

Resp. 2° If he had the thing by donation, it is controverted.

The 1st Opinion teaches that the price must be restored to the buyer. For the seller cannot keep it, positing that from it he has become richer. From elsewhere he is not bound to return it to the owner, because the thing perished for the owner. Moreover, if the first possessor was of bad faith, as often happens, he is bound concerning the value of the thing toward the owner. From elsewhere, however, unless by law the sale of another's thing was perhaps valid, the buyer has the right of recovering his money. - Bouvier, Carriere, etc.

The 2nd Opinion holds that the price, still existing in itself or in an equivalent, must be restored to the owner. The reason is that, since he has been unjustly despoiled of his thing, he must be made harmless. But since the thing no longer exists, it is equitable that he receive that by which the thing is represented. But it is represented by the price which the seller has. Besides, the nullity of the sale in no way harms the buyer; because it harms him no more than if the contract were valid. But if it were valid, he could repeat nothing. Except if the thing would equally have perished with the owner, for example from an intrinsic defect; for then it would have perished for him.

The 3rd Opinion says that the seller can retain the price for himself, because he does not have to restore it either to the owner or to the buyer. And 1° not to the owner, because the thing perished for him in every case; 2° not to the buyer, because the money which the seller received does not precisely represent the thing, but rather the obligation which he took upon himself of preserving the buyer harmless in the case of eviction. But the buyer was not evicted; therefore the seller can retain the price by reason of an abandoned thing. This opinion counts few patrons, and does not seem sufficiently probable. See S. Alph., L. IV. 609. under 5.

Since the 1st and 2nd opinions are equally probable, the seller can restore either to the owner or to the buyer. Except: 1) if the thing would equally have perished with the owner, for example from an intrinsic defect or from age; for then in reality it would have perished for him; 2) if the owner had already been preserved harmless by the thief or another possessor of bad faith. In each case the buyer alone would have right.

729. • Query 8° What must be done if among various possessors of good faith one of bad faith was present?

Resp. That circumstance changes in no respect the condition of the other possessors, whatever place in the series that possessor finally occupied. For the same obligation lies upon each one toward the owner as if that possessor had been of good faith, since his bad faith in no way redounds to the others. But that man must be treated as will soon be said concerning possessors of bad faith.

Query 9° What must be done if a possessor of good faith indeed detects that the thing possessed by him is another's, but the owner does not appear?

Resp. Concerning this it must be established as concerning a thing found. - Recall what was said n. 655. 656.

730. • Query 10° Can a possessor of good faith subtract necessary expenses which he has undergone in conserving or increasing the thing?

Resp. He can deduct all necessary expenses; indeed also useful expenses, namely those which conserve the thing and make it better; otherwise the owner would receive more than what is his own. But not pleasurable expenses; because it is not equitable that the owner pay expenses which bring no utility to himself. Understand according to the things to be said n. 732. III.

But among expenses there are not to be computed fortuitous events, nor damages caused by accident. Thus, for example, if in cultivating another's field your horses have perished, the value of the horses cannot be deducted, but only the estimation of the work done by the horses for the cultivation of the field.

731. • Query 11° Can one who in good faith bought a stolen thing return it to the thief in order to recover the price?

Resp. 1° Negatively, if the owner appears asking from him his own thing; for then he must return it to him, even with the loss of his own price, because by natural right the owner can occupy his own thing wherever he finds it. Yet an action is given to the buyer against the thief. (h) p. 481.

Resp. 2° If the owner is indeed known, but unaware of the thing, the buyer, with another way of indemnification shut off to himself, can send the thing back to the thief, so that he may recover the money; both because the buyer is not bound to preserve the thing for the owner with his own damage, and because no one is forbidden an action which of itself is necessary and directed to repairing his own damage, although indirectly and by accident damage may come from it to another.¹

Resp. 3° If the thief, or another seller, does not appear, or does not wish to return the money, the buyer, the owner being known, cannot sell the thing to others, nor convert it to his own uses so that he may preserve himself harmless, because he is not the owner of the thing; but he must return it to the owner, notwithstanding the loss of the price. But he preserves recourse against the seller. But if he cannot find him, the damage must be undergone by himself. (h) p. 481.

A possessor of bad faith is he who knows that the thing which he accepts or possesses is not his own.

732. Principles. - I. A possessor of bad faith must restore the thing itself in individual, if it exists, or in equivalent if it does not exist, and besides, if you except industrial fruits, all that in which he has been made richer, as was said concerning the possessor of good faith.

II. He is bound besides to compensate every damage inflicted upon the neighbor from unjust acceptance, even if he has not been made richer. The reason is that by an acceptance formally unjust and per se efficacious of damage, he violated the neighbor's right. But commutative justice requires that the violated right be repaired integrally. Therefore...

III. He can nevertheless retain all industrial fruits and deduct expenses both necessary and useful; indeed even merely pleasurable ones, where they can be separated with the substance of the thing untouched, unless in penalty of the delict he has been condemned to lose the expenses.²

733. Questions. - Query 1° Is a thief who has stolen a thing otherwise certainly about to perish, for example by fire, bound to restitution?

Resp. Affirmatively, the expenses made with the price of the work used to free the thing from danger nevertheless being deducted. The reason is that that thing did not cease to belong to the owner, although it was exposed to the greatest danger. Except, if he destroyed the thing; or even probably, if the thief consumes a thing remaining in certain danger, for example edible or drinkable things already about to perish by fire; because fault alone does not oblige to restitution where damage did not intervene.¹ - Lessius.²

734. • Query 2° Is the thief bound to restitution if the stolen thing perished with him?

Resp. When the thing perishes, the obligation of restoring remains or ceases according as, while it perishes, the theft should still or should not be called the efficacious cause of the damage; for fault alone does not produce an obligation of restitution where in fact damage has not followed from it. Hence:

1° The value of a thing perishing with the thief, whether by his own fault or another's fault, or even by fortuitous event, must be returned whenever, if left with the owner, it either would not have perished, or would not have perished except by the injury of another; for then the cause of the damage truly is the thief, who besides by stealing the thing took upon himself its whole risk.³

2° Resolve the opposite if, without anyone's fault, it perished with the thief, whether from its intrinsic defect or by fortuitous event, whenever it would equally, namely at the same time and by a common danger, have perished with the owner; for then not the theft, but the defect or the fortuitous event itself is the efficacious cause of the damage. - Thus commonly.⁴ Lugo,⁵ against Concina, etc.

I said: a) without anyone's fault; for if the thief or another consumed or destroyed the thing, even one certainly about to perish soon in a common danger, before that danger, the theft is again rightly judged the efficacious cause of the damage. Except probably if this common danger, in which the thing, without hope of salvation, would have perished even with the owner, was already previously known to threaten; for the thing, considered in that state and previously known, becomes of no value or certainly of very slight value to the owner. See n. 733.

I said: b) if the thing would have perished at the same time with the owner; because if it would have perished earlier, then it was saved for the owner from the earlier danger, and had to be restored to him. And therefore by not restoring, the thief remained the efficacious cause of the damage. Resolve the same if it would have perished later with the owner, because the personal action of repairing damage is not taken from the owner by a following danger. Nevertheless probable in this case is the opinion of S. Alph.,¹ excusing a thief from restitution if the thing would have perished equally with the owner in the same common danger, and in that case holding him bound only, by reason of delay, to restore the fruits which the owner would have perceived from the thing. The reason is that delay was indeed the cause why the owner is deprived of fruits, but not why he is deprived of the thing, of whose loss the danger was the cause.²

I said: c) by the same common danger, because where the danger is diverse, even if simultaneous (fire and inundation), the destruction is rightly attributed to the thief, since without his theft the thing would not have been exposed to this danger.² (i) p. 481.

735. • Query 3° To what is a possessor of bad faith bound when the thing has had various value during the time of detention?

Resp. Let the general rule be: A possessor of bad faith should not become richer from another's thing. - The thing, if it increases, increases for the owner. - Let the damage unjustly inflicted be compensated to the owner. - Hence:

1° A thing made worse with the thief (a younger horse taken, but now growing old) must be restored according to the value which it had when it was taken.

2° If the thing increased with the thief (a lamb into a sheep), it must be restored as it increased, expenses (n. 732. III.) being deducted.

3° If the thing increased with the thief and afterward decreased, the thief is bound to return the whole greater price, even in that case in which the owner would have consumed the thing at the time of lesser price; for the thing increased for the owner, and the thief, by not restoring then, was the cause of that greater damage. H. A. Tr. X. 78.

4° If the thief consumed the thing at the time of lesser price, although it was to be preserved by the owner until the time of greater price, he is not bound to restitution of the increase, provided he restored the price at that time at which the owner could have bought a similar thing for himself at that same price.¹ See n. 738, 3°.

5° If the thief sold or consumed, at the time of greater price, a thing not to be preserved by the owner, he is bound to return that price to the owner, although the owner would have done something else with the thing; because the thing increases for its owner.²

In practice, since nearly all the aforesaid circumstances do not become known, for the most part only compensation of the value which the thing had at the time of theft is to be urged.

736. • Query 4° Besides the stolen money, must the thief also restore INTEREST (the interest)?

Resp. Affirmatively, if it is established or presumed - as today, if the sum of stolen money is sufficiently notable, it almost ought to be presumed - that the owner would have perceived that gain, because this man must be made altogether harmless with respect to the possessor of bad faith. Otherwise, however, probably in the other hypothesis, because it is not established that the owner has a right to that increase.

Query 5° Are they bound to restore who, in order to receive alms, pretend that they are poor; or true paupers who say that they are upright, when they are not?

Resp. to the 1st. Affirmatively. The reason is that these have no right to alms; for those who bestow them intend to assist true paupers only. Therefore restitution must be made either to the giver, or at least to true paupers. More probably it suffices if restitution is made to paupers. Yet restitution does not seem to be urged if it is a question of very modest alms, such as are given door to door; because those bestowing them are less unwilling with regard to them. - Thus commonly.³

Resp. to the 2nd. Negatively, generally, because need alone, not uprightness, is the condition to which the donor attends or is presumed to attend. - Thus commonly.

737. • Query 6° What if another's thing has passed through the hands of several possessors of bad faith by donation or sale?

Resp. 1° As to the thing, it must be restored by him who still holds it, or has changed it into another value, or has consumed it, or in any way lost it. But if this one is lacking, the robber is bound. But if neither has satisfied his debt, the others must pay the price of the thing by equal portions. Finally, in default of the rest, each one is bound to the whole.

Resp. 2° As to the fruits and damages of the thing, individuals are bound to compensation for the part of the time during which each one detained the thing. But if the others do not compensate for their part of damaging and fruition, reparation of the whole damage lies upon individuals; namely, each one of them is bound to repair the damages, not those which followed before he himself became possessor of another's thing, but those which followed afterward. - Thus commonly.

Query 7° Can he who knowingly buys another's thing from a thief return it to him in order to recover the price?

Resp. It is controverted. S. Alph.¹ affirms; because although this man sinned by buying the thing in bad faith, yet after the purchase he has a right, not otherwise than a possessor of good faith, to rescind the contract. Nor does he, by returning the thing to the thief, place it in a worse condition than that in which he himself found it, from which besides he was certainly not bound by justice to free it.

738. Resolutions. - 1° A possessor of bad faith is bound not only to compensate the damage emerging for the owner from the lack of his thing, but also every profit ceasing in confused manner at least foreseen; namely not only that which the owner in reality lost on account of the lack of his thing, but also that which he would have perceived in a licit manner.

2° He who transported stolen grain to another place, where he sold it for more than the owner was going to sell, is not bound to assign the increase of price, as being sought by his own special industry (n. 732. III), to the owner.² - For the same reason, if he sowed the same grain in his own field, he is bound only to return similar grain, so that the owner be preserved harmless. Likewise he who places another's eggs under his own hen to be brooded over is bound only concerning the value of the eggs.

3° If someone has stolen wheat which the owner was preserving to be sold at a time of greater price, and consumed it at a time of lesser price, he is bound to restore that price which the owner was expecting, unless perhaps restitution is made so early that the owner can buy similar wheat at the lesser price and reserve it without inconvenience until the time of greater price.

4° If someone has killed a stolen lamb, or has consumed another thing of this sort taken by theft, he is bound to pay only that money (at least more probably) which corresponded to the value of these things at the time of killing or consumption, unless perhaps the owner could not at once have bought a thing of the same value with the same money, and at the same time wished to preserve that thing so that he might obtain a greater sum of money from its sale.¹

5° The assessment of the quantity to be restored, on account of the cause alleged in this number under 1°, often can be made only according to the judgment of a prudent man. Besides, when it is a question of theft of a small and very common thing, as of a hen, etc., this alone, or its value, must be returned; for there can be no question of damage emerging or profit ceasing, while the owner could easily buy a similar thing. (j) p. 481.

A possessor of doubtful faith is he to whom a positive doubt arises whether the thing which he accepts or possesses is his own or another's.

739. Principles. - I. A possessor of doubtful faith, whether he has doubted from the beginning or only in the course of possession, is bound to inquire seriously, so that he may lay aside the doubt. The reason is clear; otherwise he exposes himself to danger of retaining another's thing from his own culpable negligence.

II. If, after diligent inquiry has been made, the doubt perseveres, more probably he can retain the whole thing, if before the doubt arose he possessed in good faith. The reason is that in an equal cause, or doubt, the condition of the possessor is better; and possession begun with good faith creates of itself the greatest presumption concerning the justice of the possession, and gives to the possessor a certain right which, unless it is overcome by other stronger reasons or presumptions, ought to prevail both in the internal and in the external forum. - S. Alph.,² Lugo,³ Lacroix,⁴ Carriere,⁵ and others commonly, against some who say that the thing must be divided according to the proportion of the doubt.

III. If doubt preceded possession, a distinction must be made. For one who began to possess in doubt by despoiling another of his possession is bound to restore the whole thing to the prior possessor when it is not established that this man began to possess the thing in bad faith; because in an equal cause his condition is better, as being that of the possessor. - Lugo,¹ Carriere.²

But one who received the thing by another title, for example of purchase, and after diligent examination still doubts whether he from whom he received it is its owner, must restore, according to the proportion of the doubt, to the probable owner, or to the poor, if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor from elsewhere does it seem equitable that he be bound to restore the whole, since there is doubt whether the thing is another's. - S. Alph.,³ Lugo.⁴

740. Questions. - Query 1° To what is he bound who accepted some thing in bad faith, thinking it was another's, and afterward doubts whether the thing is his or not?

Resp. He is to be equated to him who began possession with doubtful faith; for the prior false estimation is found, and therefore is not to be attended to in the solution of the case. Therefore weigh whether by his possession he despoiled another or not, and resolve according to what was said in principle III.

Query 2° What if such a possessor neglected to inquire from the beginning, and afterward the owner of the thing can no longer be found?

Resp. More truly, something must be restored to the poor according to the proportion of the hope which the owner could have had of recovering his thing. Generally that hope does not reach half the price, but is of much lesser value.⁵ - Lugo, Lacroix.⁶

741. • Query 3° To what is a possessor of doubtful faith bound if he neglected to inquire and the owner appears?

Resp. Generally, after the beginning of the doubt, he must be treated as a possessor of bad faith; therefore he must be bound not only to return the thing to the owner, but also to repair all damages to him. - Carriere.⁷

He seems to be excepted who began possession in good faith and afterward, when doubt arose, neglected to inquire, thinking that the owner could be found only with greater difficulty; for he would be equated to a possessor of good faith.

742. • Query 4° To what is he bound who occupied a thing possessed even by an uncertain owner, as he knew; likewise he who first occupied a thing while doubting whether it had been abandoned by the owner?

Resp. to the 1st. The thing must be divided equally with the probable owner; for possession favors neither one. Cf. n. 60. 3°.

Resp. to the 2nd. If, after inquiry has been made, no earlier owner of the thing, not even probable, can be detected, he can have the thing as truly abandoned by the owner, and then, after doubt has been laid aside, acquire it for himself by legitimate occupation in good faith.¹

Query 5° Is a possessor of doubtful faith who began to possess in good faith bound to restitution if, after inquiry has been made, he finds that the thing is more probably another's?

Resp. More probably negatively, because from certain possession a morally certain right arises. Moreover, until another proves his certain right, the axiom is valid: The condition of the possessor is better. But the other can prove a certain right, that is, one morally such, only by most probable reasons.²

Query 6° Is a debtor, in doubt concerning the completed payment of a debt, bound to pay integrally or in part?

Resp. See n. 803.

743. Resolutions. - 1° If you have possessed another's thing in good faith, and, when doubt supervened and remained after inquiry, relying upon the principle of possession you consumed it, but afterward the owner unexpectedly appears, you will be bound to restore only that in which you have been made richer.³

Note. - 1) As long as it remains morally possible that a certain owner may afterward appear, the aforesaid possessor ought to be so disposed in mind that, if afterward before the time of prescription the owner is certainly detected, he restore the thing to him, or if he has consumed or alienated it, its price, and this even if he has not been made richer. Thus Lugo⁴ against some. 2) The same possessor ought, if he sells the thing, to warn the buyer concerning the existing doubt and the danger of eviction.⁵

2° They are not to be exempted from restitution who buy things from thieves or fraudulent bankrupts while doubting concerning the legitimate possession of these things, and purposely inquire nothing lest they have certitude of fraud; for these act not with doubtful faith but with bad faith, since affected ignorance is equated to knowledge. Mar. p. 260. n. 47. III.

3° "Croix notes, l. 3. p. 2. n. 562, with Vasq., Laym., Pal., Sanch., Mol., etc., and Roncaglia thinks it not improbable, ... that when a possessor (even one who began to possess with doubt) has had the thing from a possessor of good faith, if afterward diligence becomes impossible, he is bound to restore nothing; for he then legitimately succeeds into all the right of that man." S. Alph. L. I. n. 57. Notat II.

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

S. Th. II-II, q. 62, a. 2 and 8.

282. Thesis. Restitution is necessary for salvation by necessity of precept, which per se obligates under grave sin to restoring, in fact or in desire, that which is owed to one's neighbor from strict right.

It is said A. necessary, and indeed:

1. in fact or in desire: in fact whenever this is morally possible; but if for the time it is impossible, at least the intention must be conceived in the mind, that is, the desire or efficacious proposal of restoring as soon as possible;

2. per se under grave sin: for just as injury per se is prohibited under grave sin, so its repair per se is commanded under grave sin; unless the damaging injury is light, for then the repair can be owed only under venial sin. Hence one who, in restoring, would retain a part which does not reach grave matter, would not sin gravely by detaining it; nevertheless, even for a light injury or small matter, restitution must be prescribed under venial sin;

3. by necessity of precept, but not, even in desire, by necessity of means, because restitution contributes nothing positive to salvation, but is a mere condition like the fulfillment of every grave precept;

B. for salvation, namely, so that sincere contrition and a firm purpose are impossible without the efficacious will of restoring.

It is proved A. by reason. The first part: Justice forbids that injury be inflicted upon someone or that an inflicted injury be continued. But he who does not restore a thing received from another, or for damage inflicted, when he can, by that very fact causes injury or does not cease to cause it. Therefore justice forbids omitting restitution. For:

a) He who unjustly detains another's thing impedes his neighbor from the use of his own thing, and thus does injury to him: namely, to detain that which is owed to another has the same account of harm as an unjust taking, and is equivalently to steal; — likewise he who does not compensate damage voluntarily continues it in its effect, and does not cease to violate another's right.

b) He who does not restore harms his neighbor, and thus acts against the precept: What you wish men not to do to you, do not do to them.

c) Right reason dictates that to each his own must be rendered. Therefore that which has been unjustly received or is unjustly detained must be rendered.

The second part: a) Sin cannot be remitted without sincere contrition and firm purpose. But he lacks sincere contrition who wills to retain a good unjustly possessed, because he does not retract his sin; — nor does he have a firm purpose of not sinning who pertinaciously refuses to repair damage unjustly inflicted by him.

b) To preserve justice is of the necessity of salvation. But he who does not restore, when he can, does not preserve justice but violates it, because he does not preserve equality. Therefore restitution is of the necessity of salvation.

B. What the Scriptures say: a) the precept of restitution is expressed in Ex. XXII, 1-5 and following: "If anyone shall have stolen an ox, or sheep, and shall have killed or sold it, he shall restore five oxen for one ox, and four sheep for one sheep... If he shall not have that with which he may repay for the theft, he himself shall be sold...¹ If anyone injures a field or vineyard and lets his animal go so that it feeds on another's... according to the estimation of the damage let him restore..." b) But this is necessary for pardon, Ezech. XXXIII, 14-16: "If... he shall have done penance for his sin, and shall have done judgment and justice, and that wicked man shall have restored the pledge, and returned the robbery, he shall live with life and shall not die." c) Hence those who were held to be holy, or who sincerely wish to return from injustice, are found very solicitous about restitution, for example, Tobias, II, 21: "See lest perhaps it is stolen (the kid): return it to its owners, because it is not licit for us either to eat anything from theft, or to touch it"; and Zacchaeus, Lk. XIX, 8: "If I have defrauded anyone of anything, I restore fourfold." Hence James says, V, 4: "Behold, the wages of the workers who reaped your regions, which has been defrauded by you, cries out, and their cry has entered into the ears of the Lord."

¹ Here it is said that more must be restored than was taken away, but this is by way of penalty, by which the Jews might be more effectively deterred from theft.

C. Tradition states the same thing and has solemnly placed in the law the axiom of St. Augustine:² "The sin is not remitted unless what was taken away is restored."

² Ep. 54, to Macedonius.

283. It is objected: No one is bound to restore another's thing if the owner is unreasonably unwilling that the holder detain the thing. But the owner is unreasonably unwilling who prefers his own temporal good to the spiritual salvation of his neighbor, since the neighbor himself is to be damned if he does not restore. Therefore.

Resp.: 1) I deny the minor, because someone is not bound to prefer the salvation of his neighbor to his own temporal good unless the neighbor, in extreme or grave necessity, could not be saved otherwise; but here the neighbor can be saved, and he suffers the danger of salvation from his own perverse will alone.

2. I distinguish the major: if the owner were bound by justice or strict debt not to be unreasonably unwilling, I concede; if he were bound to this by charity alone, I deny. But in the case, supposing that the owner were bound to this, which is false, he would be bound only from charity alone, and thus the injustice remains (n. 246).

284. The precept of restitution according to the form and sense of the words is affirmative, but according to the thing it implies a negative precept by which we are prohibited from detaining another's thing (a. 8, ad 1). And indeed it is primarily negative: for it commands rendering another's thing precisely because to detain that thing, or to deprive him of it, is evil and prohibited. Hence the negative precept is the reason of the affirmative precept. Hence:

1. Restitution always obligates and must be made as soon as possible; otherwise the owner is unjustly deprived of the use of his own thing; and therefore he who at present cannot restore is bound at least to have the proposal or intention of restoring, and at the same time to take care that he satisfy the obligation as soon as possible; and if he cannot restore the whole, let him immediately restore a part.

2. He who voluntarily omits restitution sins during the whole time of the omission, because he transgresses the negative precept which obligates at every moment.

3. Nevertheless, he who keeps another's thing for a long time commits one sin in number, provided that he always perseveres in the proposal of not restoring; but if he revokes it explicitly or implicitly, he sins as often as he renews the interrupted proposal. Yet let the confessor not be too concerned about the number of sins, but let him ask the penitent how long he has detained another's thing, and whether he persevered in the same will of not restoring.

285. Practical corollaries are deduced from this by theologians for confessors:³

³ Cf. our little work: De Variis Peccatis in sacramentali confessione medendis, c. 11, § B, q. 4.

A. He cannot be absolved:

1. who, conscious of his obligation, without an excusing reason, does not wish to restore another's thing of great price: for he lacks true contrition;

2. who without cause delays restitution, for example, until death; or if he is near death and can conveniently restore by himself, commands his heirs to restore: for by experience it is known that this is dangerous;

3. who cannot restore but neglects to procure for himself the faculty of restoring, such as one who, burdened by debt, makes useless expenses and does not pay debts: for he is bound to live with a certain parsimony, that is, not only to avoid superfluous expenses, but also to diminish daily expenses, insofar as he can according to his condition;

4. who does not wish immediately, when he conveniently can, to restore a notable debt all at once: to will to retain a notable part while the owner is reasonably unwilling is actually to sin.

B. Nevertheless, if the penitent is in good faith, and at the same time it is certainly foreseen that admonition will be useful in no way — which, however, should not easily be presumed — the admonition can be omitted and absolution granted.

C. He who promises that he will morally restore at once can be absolved the first time, unless from the circumstances deception is prudently feared; nevertheless it is generally more opportune that he first be compelled to restore, if this can easily be done, lest afterward he change his mind. — But if he had already promised, especially several times, regularly he is not again to be absolved before restitution has been made, because his disposition is very doubtful and there is great danger of a new delay.

286. Concerning restitution to be made by a dying man. — With a dying man one must act cautiously:

1. If the penitent seems to be in good faith, and no time remains for prudently admonishing him concerning his obligation, or it is foreseen that the admonition will not be useful, it is to be omitted.

2. But if it is hoped that the admonition will be useful, or if the penitent is in bad faith or in vincible ignorance, he is to be admonished concerning his obligation both firmly and gently, and helped to fulfill it at once.

3. If the obligation is hidden and cannot be fulfilled at once, the dying man is to be induced to entrust the money to the confessor himself, or rather to another faithful man, so that it may be sent to the creditor in secret; or, if it can be done prudently, to leave that sum in his testament to the same creditor, with mention of restitution omitted.

4. If the obligation is not hidden, and cannot be fulfilled at once, let the confessor bring it about that it be certainly fulfilled, either through the heirs, or through a note to be handed to the creditor.

287. Notice. — Here the error of the common people must be corrected, who think that souls are detained in purgatory until restitution has actually been made by the heirs: for no one in the other life is compelled to undergo penalties on account of the negligence of heirs.

S. Th. II-II, q. 62, a. 4 and 6.

288. The root or title from which the obligation of restoring arises is twofold: another's thing received, and unjust taking; these titles of themselves exist separately, yet sometimes they are joined.

1. From the sole title of a thing received, or by reason of simple detention, he is bound to restore who has another's thing with himself even without fault, whether the other is willing, as in a commodatum or deposit, and then the detention becomes unjust if the thing is not rendered at its time; — or whether the other is unwilling, as if by chance accident or by the act of a third party it is with me and I do not know that it belongs to another, and then the detention becomes unjust if the thing is not immediately rendered when it appears to belong to another. For a thing cries out for its owner, and no one can voluntarily be deprived by another of his own thing against his will; and therefore when someone "has beyond that which is his, it ought to be taken away from him and given to him who lacks it" (a. 6).

2. From the sole title of unjust taking he is bound to restore who by an unjust way has taken away another's thing, even if the thing does not remain with him, or even has been destroyed, and he has nothing from it; in one word, he who inflicted unjust damage on another and thus unjustly deprived him of a thing: "for he who damages someone seems to take away from him that in which he damages him" (a. 4). — The reason is that, although he himself does not have more than he ought to have, the other nevertheless, from his unjust action, has less than he ought to have; whence he violated justice concerning the thing of another, which he is bound to remove by restitution (a. 6, ad 1).

The roots of restitution are called the causes from which the obligation of restoring arises. They are taken from a threefold head, namely: 1st, from the acceptance of another's thing; 2nd, from unjust damaging; 3rd, from unjust cooperation: which indeed, as to the matter, could easily be reduced to one or the other of the preceding, but for the greater distinction of the things to be said will more opportunely be treated separately.

(D. Thomas, q. 62.)

: Two titles are commonly assigned as inducing the obligation of restitution, namely a thing received and an unjust acquisition³⁴⁸ . ³⁴⁸ Ibid., a. 6, c.

1° By reason of the thing received he is bound to restore³⁴⁹ , who has the thing of another in his hands without his fault, as a thing deposited, lent for use, pledged, found, etc.; because, since he has what is not his own but another's, what he has beyond what is his own ought to be withdrawn from him and given to him who lacks it, according to the form of commutative justice, so that equality may come about. ³⁴⁹ Ibid.

Moreover, although in that case there has been no unjust acquisition, nor is there an unjust detention, it would nevertheless be unjust if the thing were not returned in its time.

Under the name of the thing, however, is understood not only the thing existing in itself, but its value; likewise existing fruits, and all that by means of which whoever holds the thing has been made richer by it.

2° By reason of an unjust acquisition he is bound to restore³⁵⁰ , who has taken away the thing of another by theft, robbery, or some other unjust way, even if it does not remain with him. Likewise he who has unjustly damaged another without the reception of any thing; for under unjust acquisition is here understood unjust damaging. ³⁵⁰ Ibid., et a. 4, c.

The reason is that, although this man does not have more than he ought to have, the other nevertheless has less than he ought to have through his unjust action. Hence he violated justice toward him, which he is bound to repair by restitution.

But if the thing unjustly taken remains with him in itself or in its value, or if he has become richer thereby, then he is bound to restore under a twofold title, namely of the thing received and of the unjust acquisition. Furthermore, these two titles are not rarely joined together, although either one alone suffices.

Note 1°. Between these two titles there intervenes a great difference, to be diligently noted for practice : namely that he who is bound to restore by reason of an unjust acquisition remains under the obligation of restoring even if the thing owed perish without his fault; because the reason or title of the obligation always remains, namely the violation of justice, until it be repaired by restitution. Nor is he bound to restore only the thing or its value, but also all the fruits, even those consumed; likewise all damages ensuing thence and profits ceasing, in favor of him whom he unjustly damaged, because he is culpably the cause of them. But he who is bound to restore only by reason of the thing received is not bound to restore if the thing perish without his fault, as, v. g., in a deposit; because then the reason or title of the obligation ceases, which is to have the thing of another. Nor is he bound either to restore the fruits, if they are consumed and he has not been made richer thereby, nor the damages ensuing or profits ceasing; because he is not their cause. — Of these things more fully again in what follows, while we treat of the possessor in good faith and in bad faith.

Note 2°. A third title inducing the obligation of restitution could be assigned, namely contract; for by the force of contract alone one can be obliged to the restitution of a thing which he no longer has, nor received unjustly. But because from a contract there seems to arise rather an obligation of payment than of restitution, and the two former titles alone are commonly assigned as known to all, that we may speak as all speak, and lest confusion be engendered, we too assign only these two titles. Nevertheless we shall speak below of the obligation of paying or restoring from contract.

The difficulty concerns venial fault arising from the imperfection of the act together with grave damage inflicted, about which there is a diversity of opinions. For the resolution of which,

I say 1° : It is more probable that he who gravely damaged his neighbor through venial fault is held to some restitution. This is against Lessius and certain others. The reason is that, as the imperfection of the act, although it diminishes, does not nevertheless take away every character of injustice; so, although it diminishes, it does not nevertheless take away every obligation of restoring, which arises from justice as from its root.

I say 2° : It seems less probable that he who inflicted grave damage through venial fault is held under mortal sin to the reparation of the whole damage. This is the opinion of Sylvester, Soto, Silvius, Steyaert and the more common one, against Henry of St. Ignatius and certain other recent authors.

Proof. The obligation of restoring is here attended to principally, not on the side of the object or of the damage, but on the side of formal injustice. For we are treating of restitution by reason of unjust acquisition; and if there were no formal injustice, however grave the damage might be, there would be no obligation of restoring, as I said in the preceding article. Yet in our case the injustice is imperfect. Therefore the obligation of restoring ought to be imperfect; for the effect ought to answer to the cause. But it would not be imperfect if it were unto the restoration of the whole under mortal sin.

I say 3° : It is probable that he who inflicted grave damage through venial fault is held under venial sin to the reparation of the whole damage. Nevertheless it is equally probable that he is not held under venial sin except to a part of the damage only, according to the condition of the fault, according to the judgment of a good man.

The reason of the first part is that the whole damage is voluntary, although imperfectly. Therefore it seems that the obligation of repairing the whole is imperfect, namely under venial sin.

The reason of the second part is, on the contrary, that an obligation of repairing the whole under venial sin does not seem imperfect, nor proportionate to the light fault from which it arises. It is indeed imperfect on the side of itself, because it is not so strict; but it is not imperfect on the side of the object, because it is unto the whole, nor therefore proportionate to the fault : just as a grave punishment is not proportionate to a light fault, although the accused would be bound to it only lightly.

And indeed it seems hard that one be held under venial sin to pay back twenty or forty thousand pounds and more, and that he cannot be freed from that sin unless he pay back this whole sum. Wherefore it seems more suitable to many to say that he is held only to a part, for example a fiftieth, an eightieth, etc., according to the quantity of the fault, according to the judgment of prudent men.

Moreover, whatever may be said of the speculation of this question, authors of every opinion commonly note that it rarely happens in practice that grave damage is caused by venial fault; because, although venial inconsiderateness is frequent in surreptitious thoughts and internal movements of the mind, which often, easily and subtly arise, and indeed concerning objects conformable to natural inclination; yet it rarely occurs in external works of grave moment, because these ordinarily present their danger at once and more strongly arouse the mind to consideration of themselves, or at least to a confused knowledge of the danger. Hence, unless it be certainly established that the inadvertence was venial, it must be held in practice to be mortal, namely proportioned to the damage, and the obligation of restoring under mortal sin must be pressed upon him.

[There St. Liguori distinguishes³⁵² : If the fault is venial by reason of the smallness of the matter, it certainly obliges to restitution under light sin. But if the fault is venial by reason of inadvertence or undeliberation, several say, with Layman and Croix (and to this opinion our Billuart adheres), that the obligation of restoring is according to the measure of the fault. But more commonly, and probably, it is held that no obligation of restitution is induced, neither under grave nor under light sin. Not under grave, because such an obligation has no proportion with a light fault. Not under light, because a light obligation has no proportion with grave matter, all the more since a fault imperfectly deliberated cannot induce perfect deliberation : just as in contracts and vows no obligation arises from a consent not fully deliberate. ³⁵² Lib. IV, n. 552 ; Homo apost., X, 40.

You will ask 1° whether he is held to restitution who culpably placed the cause of the damage, and afterward tried in vain to impede the damage.

I answer, affirmative. The reason is that retraction, although before God it takes away the sin, does not nevertheless prevent the culpably placed action from being in itself a positive, efficacious and unjust cause of the damage sprung from it³⁵³. ³⁵³ Id., lib. IV, n. 559 ; lib. VII, n. 40.

You will ask 2° whether a damager who is doubtful is held to some restitution.

I answer 1°. If the doubt arose before the damaging action, the question is to be solved from the principles laid down in the treatise on Conscience, where we treat of a doubting law.

I answer 2°. If the doubt arose after the action, several things are to be examined : 1° Whether the damage exists. In which doubt, even if positive, according to the common opinion the agent is not held to restitution³⁵⁴. And this the Angelic Doctor holds, here q. 62, a. 7, o, where he says : « In other cases, however, that are enumerated, one is not always bound to restitution ; for counsel, or flattery, or anything of this kind is not always an efficacious cause of rapine. Whence then only is the counselor, or the palpo, that is, the flatterer, held to restitution, when it can be probably estimated that from causes of this kind an unjust acquisition followed ». Therefore, according to St. Thomas, it must be proved that the action certainly was the cause of the damage; for the adverb probably is used here in the sense that the thing can be proved, that is, that the persuasion is morally certain. — 2° Whether the damage is to be ascribed precisely to this action. In this doubt a threefold opinion is given. The first, which is probable, teaches that restitution is to be made if the action was apt by its nature for inflicting such damage; because then the presumption stands for its influence. The second opinion holds that restitution is to be made pro rata of the doubt. But, besides that the quantity of the thing to be restored could hardly be determined in this case, this opinion on one side harms the agent, if restitution is not to be made, and on the other the damaged party, if it is to be made. The third opinion, absolutely more probable, affirms that the damager who is in doubt is held to nothing; because an injurious action does not suffice for pressing restitution, but there is required a persuasion morally certain that that action truly was the cause of the damage. Whence this question falls back into the preceding one, namely whether the damage exists on the side of the agent, and likewise it is to be solved³⁵⁵. — 3° Whether the action, or omission, of the damager, although damaging, was formally unjust, that is, an invader of another's strict right; because the obligation of restitution is born from the violation of commutative justice alone. In a doubt of this kind the agent cannot be held to restitution before the sentence of the judge. — 4° Whether the action, or omission, of the damager, although truly damaging and in itself unjust, was gravely culpable in conscience. And the same answer must be given; because, as was said above, where grave fault is not morally certain, neither is the obligation of restoring certain on account of the damaging³⁵⁶] ³⁵⁴ Id., lib. IV, n. 562, 1ª Sent. in fine. ³⁵⁵ Id., ibid., n. 658. ³⁵⁶ Id., Homo apost., X, 39,.

I. QUESTION I. What is restitution, and whence is it born? ANSWER. It is an act of commutative justice by which the loss inflicted upon another is taken away, or what has been received is rendered back, and justice, or equality, is constituted between the parties. Hence it is that restitution arises from a twofold principle: namely, either from unjust acceptance, or from the thing received. Under the name of unjust acceptance is understood whatsoever … … is understood, not only what has been taken away by theft or rapine, but also any injury whatsoever inflicted upon reputation or honour, by adultery, calumny, or defamation. Wherefore every loss opposed to commutative justice, whose right is violated, ought to be repaired by restitution up to equality. Restitution is said to be from the thing received when another's thing is with you, whether justly or unjustly. Here the two principles are sometimes conjoined, as in a thief, who is liable to restitution both from the thing received and from the unjust acceptance; sometimes separated, as in him who possesses another's thing in good faith, thinking it to be his own.

CERTAIN rules are handed down by the Doctors, that what is sought may be recognized. The obligation of restoring arises from a threefold source. First, by reason of the mere acceptance of another's thing, even if perhaps you no longer have that thing. Secondly, by reason of another's thing alone, which you have in your keeping, even if perhaps you have not received it from its Owner. Thirdly, by reason of both, namely the acceptance and the thing. By the name of thing is understood the thing, either in itself, or as it remains in some fruit, or in the price, or in effect, e.g. the gain by which you have been made richer.

BY acceptance I understand, not that which is gratuitous, but that which has been made in commercial dealings, e.g. of sale, purchase, etc. related above in disp. priori quaest. 10.

IT IS PROVED. He is bound to restore who is the true cause that someone have less than he ought of his goods: Such a one is he: Therefore. So Caietanus under the word Restitutio, Valencia disp. 5. quaest. 6. puncto 3. Tannerus in the quaest. cited, Caspensis disp. 1. sect. 4, who distinguishes these roots of Restitution as arising from the thing, from the delict, and from the contract, and adds two others, which are reduced to these. The first is from a statute of law. The second from the will, e.g. from a testament. For if someone has bequeathed to me a thousand gold pieces, the heir is bound to render them to me. So also D. Bonavent. in confessionali, cap. 2. particula 6. et 15, and cap. 3. part. 44, and cap. 4. particula 2, where with other Doctors he includes under the title of unjust acceptance injuries, as burnings, devastations, etc.; so also in speculo animae, cap. 2, and de decem praeceptis, 7, and in Diaeta, tit. 3. cap. 6.

BEYOND the executor, the causes of acceptance of another's thing are commonly reckoned as nine with D. Thom. here, and D. Bonav. in confessionali, cap. 2. particula 19, in these verses.

Command, Counsel, Consent, Flattery, Recourse, The Mute, The Participant, The Not-hindering, The Not-revealing.

Of these the first six are positive, direct causes; the last three indirect, as Tannerus disput. 6. quaest. 4. dub. 14. num. 392 says, with the Holy Doctors.

THE ONE COMMANDING, or ordering, tacitly or expressly, is a true cause of the damage; if, however, he revoked the command before the damage, with the knowledge of the Mandatary, the latter is not bound to restore. So commonly in Bassaeus, V. Restitutio, 5. §. 1.

THE ONE GIVING counsel, or urging, asking, instructing. If he revoke his Counsel, etc., he does not seem to be bound to restitution any longer; although others say it is not enough merely to urge, but he must efficaciously withdraw it, as Bassaeus §. 2 relates.

HERE is reduced the one giving consent, if he is a cause of the damage, e.g. by giving a vote for an unjust war and other iniquities.

THE PALPO is one praising the crime and moving to it, or mocking, as if the one to be judged were sluggish, whence he is moved to vengeance like a buffalo. See Lessius lib. II. c. 13. num. 15; Regin. lib. X. num. 85; Petr. Nau. lib. III. cap. 4. num. 37; Azor 3. part. lib. IV. cap. 13; Filliucius tract. 32. num. 64; Sylvius cap. de Palpone; Bassaeus §. 4.

RECURSUS signifies the Receiver of stolen goods, etc., by fostering, protecting unto the damage, or retention, of another's thing. Thus Innkeepers receiving money stolen by sons of families, or servants; yet if they do not receive it as from a thief, but as from a friend, etc., then the Innkeeper is not bound to restore. See Bonacinus de restit. disput. 1. quaest. 2. punct. 2; Filliucius cit. num. 66. et 67; Bassaeus §. 5. Here the Holy Doctor includes those who foster brothels in their places of business, harlots and gamers in houses to which unwary youths fly as to snares, robbing those whom they have made steal, and bringing thence moneys and many precious things. These bloodsuckers will drink up the better portion of the blood of the innocent.

THE PARTICIPANT forthwith judges those plundered, and all cooperating in inflicting the damage; if, however, he is constrained by fear of the rope, by giving keys, holding the ladder, he seems immune from the debt of restitution; so also the Ergastula slaves of the Turks seem immune, forced to inflict damages upon us; but I do not agree that they are excused as to killings. See Suarez tract. 5. disp. 21. sect. 2.

THOSE who are co-causes of the same damage, e.g. a fire, are bound in solidum, l. Ita vulneratus, ff. ad Legem Aquiliam.