Summa summae S. Thomae, Tomus III

(D. Thomas, q. 62.)

Restitution is the giving back of a thing received, or compensation for damage inflicted.

Restitution differs from payment and satisfaction. From payment: because payment requires that the thing paid be different from the thing for which it is paid, and that it has not yet been in the possession of him to whom it is paid. Restitution, however, does not require that the thing restored be different from the thing for which it is restored; rather it requires that it be the same, as far as possible, or at least equivalent, and consequently it requires, of itself, that it has already been in the possession of him to whom it is restored. Hence he who gives back a deposit truly restitutes, yet does not pay; on the contrary, he who gives money for wheat bought properly pays, yet does not restitute.

From satisfaction restitution is distinguished¹ : 1° because satisfaction properly regards the person to whom satisfaction is made, although it does not exhibit the equivalent of the debt; restitution, however, regards the thing, which must be given back the same or the equivalent. 2° Satisfaction regards the injury inflicted or the honor violated, even if no other damage has been inflicted; restitution, however, regards the damage inflicted.

I say 1°: Restitution is an act of commutative justice² : because it belongs to commutative justice to establish equality of thing to thing between what is given and what is received, between loss and compensation. Now this is done through restitution. Therefore.

You will say : The violation of distributive justice obliges to restitution. Therefore restitution is an act of distributive justice. — The consequence is evident. An act destroying a virtue is repaired by the opposite act, as the act of intemperance by temperance. — It is proved of the antecedent. He who distributes common goods badly sins against distributive justice. Now he is bound to restitution. Therefore.

I answer. I deny the antecedent. — To the proof, I distinguish the major. He who distributes common goods badly sins against distributive justice alone, I deny; at the same time also against commutative justice, at least regularly, I concede. — In this sense, I distinguish the minor. He is bound to restitution, insofar as he violates commutative justice, I concede the minor; insofar as he violates distributive justice, I deny the minor. For things owed to particular persons from distributive justice alone are not owed to them simply, as proper and their own, but only in a certain respect, by reason of condignity and of the community of which they are parts, as I said above, dissert. IV, a. 2. Whence they have no right in re to those things, nor to the thing itself, such that they could reclaim them in court as their own. Wherefore, if they are defrauded of them, from this heading they ought not to be restored to them more than those things ought to be restored which are owed from religion, or gratitude, or other potential parts of justice.

Yet it rarely happens that distributive justice has no commutative justice annexed to it. For he who distributes common goods to particular persons either is hired for a stipend for just distribution, or designated by office or pact, for which therefore he is bound from commutative justice. Whence, if he distributes badly, he sins first against distributive justice, inasmuch as he does not distribute the common goods to particular persons according to the proportion of merits; second he sins against commutative justice, not indeed by damaging particular persons in what is their own proper, or by retaining what is strictly theirs, but by omitting the appropriation or the just distribution according to merits, to which from his office, and consequently from commutative justice, he was bound.

I say 2°: The restitution of a thing unjustly taken away, or of damage unjustly inflicted, in the thing where possible, otherwise in vow, is necessary for salvation³ .

It is proved,⁴ 1° from Scripture. Matt., XXII, 21 : Render therefore to Caesar the things that are Caesar's. Rom., XII, 7 : Render therefore to all men their debts.

It is proved 2° from Augustine, Epist. 153⁵, which is to Macedonius and is cited, c. Si res aliena, causa 14, q. 6 : « If the thing of another on account of which sin was committed is not restored when it can be restored, penance is not practiced, but feigned; but if it is practiced truthfully, sin is not forgiven unless what was taken away is restored; but, as I said, when it can be restored. »

It is proved 3° by reason⁶ : To preserve or not violate justice is necessary for salvation. Now he who does not restitute, when he can, what was unjustly taken away or damage unjustly inflicted does not preserve justice, but rather violates it, because he does not preserve equality. Therefore.

It is confirmed. Not to steal is necessary for salvation. Now to retain what is owed to another has the same reason of harm as unjust reception⁷ . Therefore.

I said, « otherwise in vow; » because where restitution in the thing is impossible, one must then have the purpose of making it when it will be possible; because it is necessary for salvation that one have the purpose of keeping all the commandments of God, among which is placed the precept of restoring, or of not retaining what belongs to another unjustly, which is reduced to this precept of the Decalogue : Thou shalt not steal. On which account restitution in vow can be said to be necessary with a necessity of means for salvation.

You will ask whether the precept of restoring is affirmative or negative.

I answer. That it is affirmative according to its form; that it nevertheless implies within itself a negative, whereby we are forbidden to retain what belongs to another, as the reason of itself⁸ .

The first part is evident; because by an affirmative precept an act of virtue is commanded, by a negative one an act of vice is forbidden. Restitution, however, is an act of virtue.

The second part is also evident. For the reason why restitution must be made is that what belongs to another must not be retained; not so with other affirmative precepts, which although they include a negation as opposed to the affirmation, do not include it as the reason of themselves : thus, v. g., God is to be loved, not because he is not to be hated, but because he is supremely good; and so of the rest.

: Two titles are commonly assigned as inducing the obligation of restitution, namely a thing received and an unjust acquisition¹ .

1° By reason of the thing received he is bound to restore² , 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.

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 restore³ , 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.

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.

Note. A twofold fault is distinguished : one theological, the other juridical. Theological fault is formal sin before God, whether mortal or venial. Juridical fault is the omission of some diligence from which damage follows to another. Such an omission, I say, jurists call a fault, even if perchance it be not a fault before God, for example because it is either involuntary, or is not of such diligence as one is bound to employ. But if it be a voluntary omission of such diligence as one can and is bound to employ, it will be at once both a theological and a juridical fault.

Juridical fault is divided into gross, light, and lightest. Gross fault is the omission of the diligence which prudent men are accustomed to employ in such a case, in such a business; as if someone go out of the house without having closed the door of the inner room.

Light fault is the omission of the diligence which the more prudent are accustomed to employ; as if someone go out with the door of the room indeed closed, but not bolted.

Lightest fault is the omission of the diligence which the most prudent are accustomed to employ; as if someone did not try with his hand whether a closed and bolted door were well bolted.

It is asked, therefore, whether in simple damaging, in which no gain accrues to the damager, theological fault is required, or that he have sinned before God, in order that he be liable to restitution, or whether juridical fault suffices. Concerning which :

I say : No one, contract set aside, is bound to restitution by reason of damage inflicted before the sentence of the judge, unless he have admitted theological fault against commutative justice in inflicting the damage. This is the common teaching against Adrian and certain ancient authors.

Proof. The damager, in the case proposed, is not bound to restore by reason of a thing received ; because, as is supposed, he received nothing, nor has he been made richer by the damage : nor by reason of an unjust action ; for where there is no fault before God, the damaging action is not formally unjust : nor from positive law ; for none can be assigned outside of contract. Therefore from no heading is he bound to restore,

It is confirmed. If damaging merely materially unjust induced the obligation of restoring, it would follow that a madman, or one asleep, or one who damaged his neighbor by a mere chance event, would be held to restitution ; which no one admits.

Therefore, however much damage to another may follow from your act, if you have not truly sinned before God, either because you employed the due diligence, or because you omitted it through natural inadvertence or blameless forgetfulness, although it is called gross fault in law, you are not held to restore in the forum of conscience before the sentence of the judge.

And this is true even though the damager deal with a thing illicitly, provided it be not dangerous and as it were a way leading to damage, such that neither per se nor in the majority of cases does damage follow from it, nor could it have been foreseen in a human way as about to follow; because, although the cause is voluntary, it is nevertheless not voluntary as the cause of such damage, which could not be foreseen in a human way as about to follow from it. Hence, if while hunting in a prohibited place or time you kill a man, thinking invincibly that you are killing a wild beast, you are not held to restore on account of the homicide.

I said, « before the sentence of the judge ; » because the judge, where there is gross juridical fault, though there be no theological fault, through natural inadvertence or some other case, is accustomed to condemn the damager to restitution or rather to payment, or to the surrender of the animal, if the damage was inflicted through an animal, unless it be otherwise certainly evident that he is innocent. And the damager is held, more probably, to obey this sentence as just in the forum of conscience. For this sentence does not rest upon a false presumption, as certain ones think; because the judge condemns you not because he presumes you have sinned internally before God, but because you have sinned externally, that is, because you omitted the diligence which prudent men are accustomed to employ, on account of which juridical fault, though not theological, the laws decree the obligation of restoring, with the sentence of the judge supervening.

And indeed justly, both because gross juridical fault usually proceeds from theological fault, although the contrary sometimes occurs per accidens, and laws attend to what happens for the most part; and on account of the common good, namely that men be more attentive in guarding their own goods, and more cautious in avoiding damage to their neighbor.

[You will ask whether he is held to restitution who blamelessly placed the cause of the damage, if afterward he neglect to remove it.

I answer, affirmative ; because he who placed the efficacious cause of the damage, and does not retract it when he morally can, wills it virtually, and consequently becomes at that moment strictly, effectively and formally the unjust cause of the damage¹.

I said, « when he morally can, » that is, without great and proportionate inconvenience, as is commonly taught.]

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 distinguishes¹ : 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.

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 it².

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 restitution³. 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 solved⁴. — 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 damaging⁵]

1° : In commodato, the receiver is held for damage arising from light and lightest fault, but not from a fortuitous event. In precario, he is held from gross fault only. But in contracts which are for the utility of giver and receiver together, as in hiring, he is held from light fault.

So it is, not indeed from the nature of the thing, because, standing in the law of nature, no one from strict justice is bound to employ greater diligence in preserving the things of another than the owner himself would employ, but from the disposition of law both canonical and civil in many places.

And these laws seem to bind in the forum of conscience before the sentence of the judge ; because that obligation of restoring in these contracts seems not so much a punishment as a condition attached to them by the statutes of the laws. Nor should they be said to be founded upon a false presumption of fraud, but rather upon natural equity and honesty.

You will ask whether he who sends back by a messenger a thing hired, or lent for use, or deposited, is held to restitution or payment if the thing perish through the fault of the messenger.

I answer with Silvius, with a distinction. If the messenger was commonly held to be trustworthy, he is not bound, because he is not at fault. If the messenger was not commonly held to be trustworthy, he is bound, because he is at fault.

Nor is it similar concerning him who would send back a thing loaned mutuum ; because the thing loaned mutuum belongs to the borrower so long as it has not reached the lender¹ . Whence, although it perish without the fault of the borrower, it perishes to himself as owner. But a thing lent for use² , hired, or deposited, belongs to the lender for use, the hirer, or the depositor, and not to the bailee for use, the lessee, or the depositary. Whence, if it perish without his fault, he is held to nothing, and the thing perishes to its owner.

I say 2° : Those who act from quasi-contract, or from office, such as tutors, judges, advocates, physicians, surgeons, etc., do not seem to be held for damage arising from any juridical fault whatever, unless it be at the same time theological : because either there are no laws which clearly decree this concerning those offices, as we said holds for true and open contracts; or, if there are, they do not seem received in practice with respect to the forum of conscience; for this the common sense of men persuades. For there is no one, or scarcely anyone, who thinks that a physician, surgeon, advocate, tutor, and their like, are held in conscience and before God to restitution, if they have not sinned in conscience and before God. And indeed, if matters stood otherwise, who, though most vigilant and most expert, would wish to discharge these offices, since it often happens that some light or lightest juridical fault creeps in upon the most vigilant and most expert through inadvertence or natural forgetfulness, or some other case, on account of which they would be held to restore, although they were before God without fault?

Moreover, I confess that those who render service under office for pay are bound by the strict law of nature to employ greater diligence than those who serve gratuitously out of charity, and if they voluntarily omit it, they sin before God and are held to restitution.

[The possessor in good faith is he who invincibly does not know that the thing possessed by him belongs to another. In civil law, he is called a possessor in good faith who possesses as if he were owner, under a title translative of ownership, whose defects he does not know. Whence his good faith ceases as soon as the defects of the title are uncovered¹ . — It is evident that such a possessor injures the right of the true owner only by an injustice merely material, but not formal.]

Note 1° for the present and following articles that, when we come to the part of restitution, not only the thing received but also the fruits of the thing are distinguished (but a fruit is the utility gathered from a thing, after expenses have been deducted), into fruits of four kinds, namely merely natural, merely industrial, mixed, and civil.

Merely natural fruits are those which nature bears spontaneously, with no human labor cooperating, or at least only light labor, such as the grass of meadows, the fruits of trees, the offspring of animals, etc. Merely industrial fruits are, on the contrary, those which the labor or industry of men alone produces, not the nature of the thing, although the latter can concur as an instrument of the working and industrious man. Such is the gain from trafficking in money, wine, grain and similar things sterile of themselves; likewise a work of art wrought with another's instrument is reckoned the fruit of industry, not of the instrument.

Mixed fruits are those for producing which the nature of the thing and the industry of man concur equally, or nearly equally; for here what differs little seems to differ nothing, such as crops, wine, oil, butter, cheese, etc.

Civil fruits are so called not because they are properly fruits, but because in law they are reckoned after the manner of fruits. Such are the prices of things let out, as houses, ships, beasts of burden, fisheries, hunts, etc. They can be reduced to mixed fruits, because to those there concurs not only industry, but the thing itself, horse, house, etc. Where there is doubt of what kind fruits are, recourse must be had to the judgment of the judge or of a prudent and learned man.

Note 2°. But, since in the restitution of fruits the expenses are usually deducted (for fruit, as I already said, is the utility from a thing after expenses deducted), expenses must be distinguished of three kinds. Some are necessary, without which the thing would either have perished or become worse : as the repair of a falling building, food for animals, etc. Certain ones are useful, which although they are not necessary for the conservation of the thing, nevertheless conduce to its betterment and increase its return, as plantings of trees, conduits of water, the addition of a mill, etc. Others are voluptuary or voluntary, which do not increase the fruit, but adorn its appearance only, as fountains, marblings, paintings, statues, etc. On account of these the thing indeed may be valued at more, yet because it does not yield more fruits, therefore they are called voluptuary or voluntary expenses. Under the character of expense, however, must be understood the labor and industry of the possessor.

Note 3°. Finally improvement, like deterioration, is twofold : one intrinsic, as when the thing changed in itself becomes better or worse, v. g., if a colt become a horse, if a lean ox become fat, or on the contrary a fat one become lean; extrinsic, when the thing unchanged in itself is nevertheless valued at more or less, on account of the abundance or scarcity of buyers or goods, or by authority of law, v. g., grain which yesterday was worth three today is worth four, or on the contrary.

[Principles. 1° A possessor in good faith ought not to grow rich from the thing of another. So all say² . — Excepted is the case where the thing has already been legitimately prescribed : in which case he does not grow rich from the thing of another, but from a thing which by force of law has been made his own.

2° A possessor in good faith ought, per se, to be kept unharmed, that is, as he can acquire nothing from the thing of another, so he ought to lose nothing, because he is not at fault. — I said, « per se, » because, in a case of conflict between possessor and owner, the owner of the existing thing is stronger in right; laws however, on account of the common good, sometimes favor the owner of the thing, sometimes the possessor.]

These things noted,

I say 1° : The possessor in good faith is held to restore insofar as he possesses from the thing of another and its fruits or profit : so that the quantity of the thing possessed and of its existing fruits, or of the profit thence arising, be the measure of the restitution to be made; because this is required and suffices for restoring equality according to the form of commutative justice. From this general assertion and rule I deduce the following conclusions, first concerning the thing, then concerning the fruits. Whence

I say 2° : The possessor in good faith, as soon as he understands that the thing he possesses belongs to another, is held to restore it while it still exists, in whole or in part, unless perchance he has prescribed it within legitimate time.

The reason is plain, because he who has beyond what is his own ought to be deprived of it and it given to him who lacks it; otherwise justice is not saved, and he becomes an unjust detainer³ .

But if he consumed the thing, or it perished by chance or even through his fault, he is held to restore nothing, except that by which he was made richer by it. — The first part is plain, because he is not bound by reason of a thing received, which he no longer has, nor by reason of an unjust acquisition or alienation, because he possessed in good faith. And although perhaps he sinned by squandering it prodigally or otherwise, he did not nevertheless sin against commutative justice, since he disposed of a thing which he invincibly thought was his own. — The second part is also plain; because that by which he was made richer succeeds in place of the thing, and it is against natural law that anyone grow rich with injury to another, according to this rule of law 48, in 6° : « No one ought to be enriched with the injustice or loss of another. » Hence

I say 3° : The possessor in good faith is held to restore all natural, mixed and civil fruits still existing, unless perchance he has prescribed them, however, with the necessary and useful expenses deducted, and with the estimation of the industry and labor.

The reason is that they are fruits of the thing; but the thing fructifies to its own owner.

Nor does it stand in the way that mixed and civil fruits are not merely fruits of the thing; for by the very fact that the part corresponding to the expenses and the estimation of labor and industry is deducted, the whole that remains over is fruit of the thing. Nor again does it stand in the way that perhaps the thing would not have so fructified with the owner; for that pertains to the good fortune of the owner, because wherever the thing fructifies, it fructifies to its owner.

[Indeed, attending to natural law alone, all fruits of the thing, except industrial ones, ought to be rendered to the owner, because the thing, wherever it may be, fructifies to its owner. Nevertheless, if positive law decree otherwise, it can more probably be stood upon; for it must reasonably be presumed that such is the force of the law, that it transfers the dominion of the fruits to the possessor, on account of the public good, that it may remove from the midst the inextricable difficulties and complaints which would very frequently be raised concerning the nature and quantity of the fruits which the owner would claim⁴ . Furthermore Gallican law decrees that the fruits pertain indiscriminately to the possessor in good faith⁵ . So likewise Austrian, Italian and Prussian law⁶ . Therefore.

Except the case where, by some legal disposition, the ceasing profit would have to be compensated to the owner. Thus by Austrian law

the finder of a lost thing not yet prescribed owes the owner appearing, besides the thing or its price, also to pay back the profit received thence⁷ .

But if the fruits no longer exist, consumed in any way whatever, he is held only to that by which he was made richer, as is plain from the first conclusion and is found in law, L. Item veniunt, § Propter haec, ff de petitione haereditatis, lib. V, tit. 3.

I said : « With the necessary and useful expenses deducted, and the estimation of labor and industry, » namely necessary and useful. Otherwise the owner would have more than he ought to have, and would grow rich from another's. And it is found in law, L. Fructus, ff Soluto matrimonio, where it is said : « Fruits are not understood, unless the outlays have been deducted. »

Moreover it is to be noted concerning useful expenses, which plainly make the thing better and more useful, that the owner of the thing is not held to pay back to the possessor in good faith the value of the improvement itself, but only of the expenses, provided however they do not exceed the value of the improvement. So L. In fundo, ff de rei vindic. lib. III, tit. 1.

As to voluptuary expenses or improvements, authors agree that they can be removed by the possessor in good faith, if they can be separated from the thing without its destruction or deterioration, such as clocks, pictures, doors, windows, etc.; or if they have not come onto the ground by implantation, as trees (and this is also true of the possessor in bad faith). But if they cannot be removed without deterioration of the thing, or have accrued to the ground by implantation, it seems more probable that the owner of the thing is not held to those expenses, at least in the forum of conscience; for it does not seem equitable that he pay expenses which he would not have wished to make and which bring him no utility. And L. Ex duobus 27, ff de negotiis gestis, lib. III, tit. 5 favors this.

I say 4° : As to merely industrial fruits, the possessor in good faith is held to restore nothing whatever of them (which is also true of the possessor in bad faith), even if he was made richer thereby. This is common opinion. The reason is that the fruits belong to him to whom belongs the fruitful cause. Yet the thing of another, being sterile, as is supposed, is not the cause of these fruits, but the industry of the possessor alone. Therefore. — So all say.

[You will ask 1° to what the possessor in good faith is bound, if he has given away the thing of another to someone.

I answer. He is bound to nothing, if he was in no way made richer from the thing; otherwise he ought to restore to the owner that by which he was enriched. This twofold solution is drawn from the principles enunciated above. But once the error is detected, the donor of the thing of another is bound, if he can easily do so, either to admonish the donee, that he render the thing to its owner, or the owner, that he may be able to reclaim his thing. This obligation arises from the general precept of charity, and moreover, as it seems, from the law of commutative justice, since the author of an injustice, even merely material, is held to repair it if he can do so without his own notable inconvenience.

You will ask 2° to what the possessor in good faith is bound, if he has sold gratuitously accepted property belonging to another.

I answer 1° In case of eviction, he is bound to pay back the price to the buyer; otherwise he would grow rich from the thing of another.

2° Outside the case of eviction, namely when 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, owes the whole price received from the buyer back to the owner. The reason is that from the whole of that price he was truly made richer, and the owner unjustly despoiled of his thing suffered an equivalent damage. Furthermore equity does not tolerate that one man, with the loss of another, be enriched from his goods. Whence the owner must be made whole from the profit which the seller received and to which he had no right.

Certain ones nevertheless entirely free the seller, because against him the owner has no recourse. But this does not seem true; for the seller would grow rich from the thing of another. it would not be safe, in this case, to depart from the common opinion ⁸.

You will ask 3° to what the possessor in good faith is bound who sold the thing of another, which afterward perished in the hands of the buyer.

I answer 1° If he had the thing under an onerous title, v. g., because he bought it, it is more probable he is bound to nothing. For indeed : 1° he is not bound by reason of the thing, since he no longer has it; 2° nor by reason of the damage, since he is not the cause why the thing perished.

2° If he had the thing under a gratuitous title, he is held to restore the price by which he was made richer through the sale. This is the common opinion. But, to whom is it to be restored? The theologians disagree. Some probably say it is to be restored to the buyer: both because the thing perishes to its owner; and because the sale, being of the thing of another, was invalid, and therefore the buyer in good faith has a right to recover his money. Others, more probably, because more equitably, as it seems to us, teach that it is to be restored to the owner: both because the thing did not perish absolutely, but exists equivalently in the price received; and because the sale, which was null, the thing perishing, harms the buyer no more than a valid sale. But since the former opinion is not lacking in probability, the seller would not need to be disturbed if he had paid back the price to the buyer. — It is to be noted that, if positive law determines to whom the restoration is to be made, the law is to be stood upon, because it validly determines the dominion, lest difficulties arise thence ⁹.

You will ask 4° what is to be done if, after it is recognized that the thing belongs to another, the owner cannot be found.

I answer this case is to be solved from the principles enunciated above concerning a thing found. You received, v. g., through blameless error, more than was owed, from one you know not. If you could not find the owner, the money given beyond what is owed must be held as a thing abandoned, and its dominion is acquired by the first occupant.

Note that, if the possessor in good faith be culpably in delay of restoring, he is constituted in bad faith, and therefore is held to compensate the damage ensuing from the delay.]

The question concerns a buyer in good faith, who bought a thing for himself, and which if he render it to its owner he will probably lose the price given to the thief; and concerning the thief, who probably will not give back to the owner the thing returned to himself.

I say : It is more probable that he who buys a stolen thing in good faith, when he knows it is stolen, is held to render it immediately to the true owner, and not to the thief, even though he would not recover his price from the thief.

Proof. 1° No one can lay hold of the thing of another, or dispose of it, against the reasonable wish of its owner; for this is properly theft. Yet the owner is reasonably unwilling while his thing is rendered to the thief, about to perish to himself. Therefore. — Proof of the minor. The owner is not bound to consent to this. Therefore he is reasonably unwilling. — Proof of the antecedent, both because the thing cries out to its owner, and because the owner has the right of claiming it back, and the buyer is held to render it to him who claims it, as I shall say presently. Therefore he is not bound to consent.

2° If the owner reclaim his thing, whether juridically or privately, the buyer is held to render it to him, and he will certainly be condemned by the judge to do so, as the adversaries themselves confess. Yet the claim does not confer upon the owner the right that his thing be restored immediately to himself, but supposes it, and by omitting to claim because of ignorance he does not lose such a right. Therefore restitution is owed even to one who does not claim.

3° If the thief does not appear, or the buyer cannot recover his price from him, he cannot sell that thing to another or convert it to his own uses, so as to keep himself whole, by admission of the adversaries themselves. Therefore neither is he to restore it to the thief.

4° Therefore, according to the adversaries, the buyer in good faith can render the thing to the thief, because in this he does no injury to the owner, since he puts his thing back into the same state in which he found it before, and from which he is not bound to draw it out with equal loss to himself. This is the principal foundation of the contrary side. But what is assumed is false, namely that in this no injury is done to the owner : 1° because it is false that the thing is put into the same state as before; for the thief, aware that he comes under suspicion of theft, will conceal the thing more carefully or alienate it farther off, and thus it will be in a worse state than before, because more difficult to recover. 2° Given that the thing is not put into a worse state than before, at least it is put into a worse state than it is in fact in with the buyer, where it is secure. Yet this does not happen without injury to the owner. Therefore. — Proof of the minor. The improvement of a thing, of whatever sort, belongs to the owner, to whom it always and everywhere cries out. Yet the state of security with the buyer is a certain improvement of the thing. Therefore it cannot be drawn out of that state and put into a worse one without injury to the owner.

You will object: No one is bound to procure another's good or to impede his damage at equal loss to himself, unless he be bound thereto from contract, or quasi-contract, or from debt. Therefore the buyer in good faith is not bound to render to the owner with the loss of his price.

I answer. I distinguish the antecedent. No one is bound to procure another's good at his own loss, if the procuring of the other's good is the cause of the loss; let the antecedent stand; otherwise, I deny the antecedent. But here the rendering of the stolen thing to the owner, wherein lies this procuring of his good, is not the cause of your loss or of the loss of your price; for that was already lost beforehand, when you handed it over to the thief: but the cause was either the malice of the thief, or your imprudence or misfortune. This distinction must be carefully retained for solving arguments from parity, which are the harder ones.

You will ask whether, if someone in good faith buy a stolen thing, and sell the same in good faith to another, that thing ought still to be rendered to its owner.

I answer, affirmative; for the same reasons are always at work as before.

But at whose loss? Of the first, or of the second buyer?

I answer. At the loss of the first buyer, who must rescind the contract with his buyer, rendering to him his price, and render the still existing thing to its true owner. Nor does it suffice if he cede to the second buyer the action he has against the thief, with whom the second buyer had no dealings whatsoever. The reason is that, although perhaps the seller acquires dominion over the price according to the civil laws, of which below, treatise on Contracts, dissertation IV, a. 6, § 1; nevertheless that dominion is weak and encumbered, inasmuch as the seller is bound, according to those same laws and the nature of the contract, on account of the eviction of the thing sold, that is, he is held to keep the buyer whole, if the thing bought is to be rendered to its owner, as it must be in this case : consequently he is held to pay back the price to him.

But greater is the difficulty in the case where the second buyer does not appear, or the thing is consumed: is the first buyer held to pay back the price to the owner of the thing?

I answer, more probably, that he ought to render that price to the owner of the thing, by reason of the received thing still existing, not indeed in itself, but in its value. Because the second buyer does not intend to transfer the dominion of his money except to the owner of the thing, and except insofar as the dominion of the thing sold is transferred to himself. Yet the first buyer is not the owner of the thing, nor does he transfer its dominion to the second buyer, nor is it transferred by any law. Therefore the first buyer is held to restore that price; and since he cannot restore it to the second buyer, because the latter does not appear, or consumed the thing to his own use, he is held, by his presumed will, to restore it to the owner of the thing, that equality may thus be compensated and brought about.

[For solving the present doubt a distinction must be used. Therefore

1° If the owner appears reclaiming his thing, the possessor owes it to him, even with the loss of the price; because the owner can take possession of his thing wherever he finds it. Nevertheless an action is given to the buyer against the thief ¹ .

So it is by natural law. But by Gallican, Italian and Austrian law, he who bought the thing in the public market, or from a merchant selling goods of this kind, is not held to render it to its owner, unless his price be refunded to him, which the owner can reclaim from the seller.

By English law, if the thing was bought at a fair, except in case of eviction by sentence of the judge, dominion is likewise transferred to the buyer in good faith.

By Prussian law, he who acquired the thing of another under an onerous title from a person not suspect is indeed held to render it, but he can reclaim the price from the owner, who himself likewise has an action against the prior possessor in bad faith ² .

These were validly enacted on account of the public good, for the security of commerce, and they can be observed in conscience.

2° If the owner does not reclaim his thing, it is very probable, and perhaps more probable, since the buyer can by no other way keep himself whole, that he may send the thing back to the thief, that he may recover his money: both because no one is held to preserve a thing for its owner at equal loss to himself; and because, as St. Liguori says, « Since each one has a right to the recovery of his own goods, no one is forbidden that action which per se is necessary and directly ordered to the repairing of his own loss, although indirectly and per accidens damage may befall another. » ³]

You will ask 1° what, and how much, the possessor in bad faith is held to restore.

I answer. The possessor in bad faith, beyond the fact that he is bound to restore all those things to which we said the possessor in good faith is bound by reason of a thing received, namely the existing thing, all natural, mixed and civil fruits still existing, or that by which he was made richer by these, is moreover bound, by reason of an unjust acquisition, to restore : 1° the value of the thing, in whatever way, even by chance, it perished; 2° all fruits, except industrial ones, which he himself received, even if the owner would not have received them, or which the owner legitimately received, even if he himself did not receive them, whether they exist or not, whether he was made richer by them or not; 3° all ceasing profits or ensuing damages to the owner from the unjust acquisition or detention of his thing. Because the unjust possessor, through the unjust acquisition and detention of another's thing, is the voluntary cause of all these damages, and is bound to repair the justice and equality which he thus voluntarily violated; but this reparation cannot be made except by the restitution of all the aforementioned things.

But these things are to be understood so long as the thing exists, whether it remain with the unjust possessor, or pass to anyone else in any way whatever. But when the thing no longer exists, it no longer fructifies to its owner, and then the unjust possessor is not held to restore the fruits which would be received if it still existed, except in the case where it would have remained longer with the owner and he himself would have received further fruits from it; for then the unjust possessor is held to restore even those according to the measure of the hope, because he is also the cause of that damage or ceasing profit.

You will ask 2° whether the possessor in bad faith is held to render the value of the thing if it perish with him, certain to perish with the owner.

I suppose as certain among all that, if the thing were going to perish with the owner through the injury of a third party, the thief or unjust possessor is held to restore : v. g., you kill the horse of Caius which Titius would certainly have killed, you steal and consume wine which another thief would equally have stolen away had it remained with its owner; you are bound, because, as the other by stealing contracted an obligation of restoring, so you, by stealing earlier, contract the obligation earlier.

But the difficulty is in the case where the thing perishes with the possessor in bad faith, certain to perish in the same way and at the same time with its owner : v. g., you stole a horse, which dies with you, about to die in the same way with its owner; sailing on a ship, you stole away the goods of another, and a storm arising, all the goods perish together with your theft. Are you bound to restitution of the value of the horse or of the goods? Some affirm, others deny. Therefore I think a distinction must be made. Whence

I answer. Either the thing manifestly appears certainly about to perish within a short time, or it does not appear manifestly. If the first, the possessor in bad faith is not bound to restore; if the second, he is bound.

The first part I do not think can be denied by anyone; because in that case the thing has no value whatsoever, and it is morally held as lost: whence no damage follows to the owner from the unjust detention.

The reason will be made clearer by examples. You stole a horse so manifestly sick that before a day elapsed it would die; you stole away oxen and sheep already on the point of being driven off by invading enemies, furniture from a fire, goods from a shipwreck, and these are driven off or perish with you by the same chance event and at the same morally reckoned time. You are not bound to restore anything; because those things at the time of their taking away were of no value, nor did they begin to be of value to the owner while with you, since they were always in the same danger.

[By Gallican and Italian law, however the stolen thing may have perished or been lost, the thief is not exempted from the obligation of restoring its price¹ . A twofold reason can be brought forward : 1° because from the beginning the thief is at fault and in delay of restoring; 2° because, although by natural law the thief is bound to nothing in this case, restitution is legitimately imposed upon him by public authority, in punishment and vindication of his fault and injury, and on account of the motive of public order. Nevertheless he may await the sentence of the judge.]

Proof of the second part, which is more contested. 1° The possessor in bad faith contracts a twofold obligation, one by reason of the thing received, the other by reason of the unjust acquisition or detention; and the owner a twofold action, one in rem, the other against the person of the possessor. The thing perishing, the first obligation and action alike are indeed extinguished, but not the second; for this lasts as long as the thief does not repair the justice and equality which he violated, as is plain both from the nature of the thing and from the common sense of theologians and jurists. Yet this reparation is made only by restitution. Therefore, if restitution is not made, the owner is injured in this right or action of his.

You will say, an unjust acquisition does not give birth to an obligation of restoring in the thief, nor attribute an action to the owner, except insofar as it is damaging. Yet it is not damaging in the case where the thing would equally have perished with the owner. Therefore.

I answer. I deny the minor. For by the very fact that you despoil the owner, reasonably unwilling, of his thing not manifestly about to perish, although he must be deprived of it by another unknown cause, you efficaciously inflict damage upon him; because in such a case the thing is worth so much, according to the estimation of men, as if it were not about to perish. But that the owner is tomorrow to be deprived of the same thing by an unforeseen cause does not make it so that you, forestalling that cause, inflict no damage upon him, but only makes it so that the damage which tomorrow would be imputed to another cause, for example fire or shipwreck, is now imputed to you : just as your killing Titius today, who was tomorrow to be killed by a wild beast, does not make it so that you are not truly a homicide, a true damager and truly bound to restitution; but only makes it so that this killing is today imputed to you, otherwise tomorrow to be imputed to the beast.

And it seems wonderful that the adversaries concede all these things, even with respect to the obligation of restoring, if Titius were tomorrow to be killed unjustly by a free cause, and deny it concerning a necessary cause, seeing that a future killing by a necessary cause no more prevents your present killing from being damaging than if it were to be by a free cause.

Proof 2°. He who unjustly steals the thing of another, or unjustly detains it, according to the apprehension of men and every law, takes upon himself all risk of the thing, and therefore it is commonly said that the possessor in bad faith is liable for the fortuitous event; so that in such a case the thing does not perish to its owner, but to the unjust possessor, just as by force of a contract of insurance a thing perishes to the insurer, and not to its owner, in this sense that the insurer ought to pay back the value of the thing to its owner.

Whence, in our case, the condition of the owner becomes better to that extent, that he acquires a right that his thing, or its value, be rendered to him, from whatever state it may have arrived. Therefore, if it is not rendered, he is injured in that right, and damaged.

It is confirmed. If a thing bought and delivered yesterday, the price not paid, should perish today with the buyer, about to perish in the same way with the seller, the buyer is nevertheless held to pay the price agreed upon yesterday. Therefore likewise the thief is held to render the value of the stolen thing. — The consequence is plain; because the obligation of the thief contracted from a delict is no more extinguished by the destruction of the thing than the obligation of the buyer from contract. And if you say that by purchase and delivery he becomes owner of the thing, but a thing perishes to its owner, I shall answer, as above, that the thief by the unjust detention takes upon himself all risk of the thing, and thus the thing perishes to him, in this sense that he is held to render its value.

You will ask 3° to what the possessor in bad faith is bound by reason of improvement and deterioration.

I answer 1°. The possessor in bad faith is held to restore the thing, or its value, according to the state of improvement, whether intrinsic or extrinsic, which it would have had with its owner if the unjust possessor had not stolen it away or detained it, even if with himself it had not been in that best state. This is the common and certain opinion; because, since through his unjust taking away or detention he impeded this best improvement of the thing with its owner, it is evident that he is bound to compensate it.

I answer 2°. The possessor in bad faith is held to render the value of the thing according to the best state of improvement, intrinsic as well as extrinsic, which it had with himself, although this improvement would not have existed with the owner, or would not have profited him.

Consider the case. You stole a colt which grew up with you into a robust horse, and then grew old : behold intrinsic improvement and deterioration. In September you stole a measure of wheat worth three gold pieces, in January kept with you it is worth four gold pieces, in June, harvest near, it is worth only three gold pieces, or less : behold extrinsic improvement and deterioration. You are bound, I say, to render the value of a generous horse, and four gold pieces for the measure of wheat, even if such improvement had not profited the owner, either because he would have sold the horse or the grain before the time of improvement, or because he kept them until the time of deterioration : so that, if, at the time when you restore, the thing still exists with you in a worse state, it does not suffice to restore it as such, but you are bound to add something to compensate the past improvement.

Proof from the preceding principles. 1° A thing, so long as it remains, is improved to its owner, whether intrinsically or extrinsically, and of how much it is worth at any time, of so much is it worth to its owner. Therefore the possessor in bad faith inflicts damage upon the owner while he does not restore it to him according to what it was worth at its highest. Nor say that it also decreases to the owner, for we have shown that to be false; because, as we proved, the possessor in bad faith takes upon himself all risk of the thing, and thence the fortune of the owner becomes better. Whence, just as if the thing perchance perish with the thief himself, even though certain to perish with its owner too, he is held to render it as if existing in its value, as was said; so also, if the thing deteriorates, although it would have been deteriorating with its owner, he is held to render it not deteriorated, but improved as before while with him.

When the possessor in bad faith detained the thing of another at the time of greater value, whether intrinsic or extrinsic, he was bound to render it as it was, and from then, by reason of the unjust detention, contracted the obligation of restoring it according to that highest value which it had, no otherwise than if he had received it then for the first time. « As receiving the thing of another, says St. Thomas, is a sin against justice, so also is detaining it; because by the fact that someone detains the thing of another against the wish of its owner, he hinders him from the use of his own thing, and thus does him an injury ² . » Whence each has the same character of harm. Yet an obligation once contracted by reason of an unjust acquisition or detention, just as it is not extinguished by the fortuitous destruction of the thing, as was said, so neither by a subsequent deterioration, but by restitution alone or the condonation of the owner. Therefore.

[Against the superior conclusion several say that, if the thing was to be kept by the owner until its decrease, the thief is not held to pay more than the value which it would then have had; because the owner truly suffers no loss, and is put back into the same state in which he would have been if no injury had been committed. This opinion is probable enough, so that it can safely be led into practice.]

The following things are to be held as certain ³ .

1° If the thing has become worse with the thief, it is to be restored according to the value which it had at the time when it was taken away. Otherwise the owner would not receive all that was his own. — This, however, according to Lessius, lib. II, cap. XII, n. 103, is to be understood in the sense that the thing decreased through the fault of the detainer; for if it is worse by its nature, in the same way as it would have become with its owner, it is to be restored as it is, since the thing decreases to its owner. But at the same time there must be compensated the damage which the owner perhaps suffered from the privation of his own thing. And this must be observed in every case.

2° If the owner would have sold his own thing at the time when it was taken from him, and the thief sold or consumed it at the same time, he is held to restore only the value which it then had. — But if the thief be in delay about paying back the price, he is held to compensate the damage ensuing from the delay to the owner.

3° If the thing with the thief first increased and afterward decreased, and it be established that the owner would have sold or consumed it at the time when it was of greater price, the thief is held to render him the greater price.

4° If the thief sell or consume a thing not to be kept by its owner at the time of greater price, he is held to render the whole price to the owner : 1° because the thing fructifies to its owner ; 2° because no one can grow rich from the thing of another ⁴ . But if he sold or consumed this thing not to be kept by its owner at the time of lesser price, several contradicting, more commonly and more probably he is held to have only this price refunded ; unless it be established that the owner could not have procured a like thing for himself at the same price ⁵ .

Lugo hands down a general rule for similar cases, disp. 18, n. 133 : « Whenever, he says, the question concerns the restitution of ceasing profit or ensuing damage, the restitution must be made not integrally, but according to the greater or lesser certainty of such profit, or of the avoidance of such damage, namely as much as that uncertain hope could be worth, all the things being weighed by which the effect could have been impeded. And this, even if the obligation of restoring descend from a delict. »

You will ask 4° whether he who consumed a stolen thing in extreme necessity is held to restore.

I answer, negative. He was indeed bound to restore before he was placed in such necessity, but theft does not destroy the right which he had to the thing in such a case. He must therefore be held in the same way as if he had received and consumed the thing in the very necessity itself ⁶ .

You will ask 5° whether he who bought the thing of another from a thief can render it back to him, that he may recover the price paid.

I answer. It is denied more commonly. But St. Liguori holds the affirmative opinion, as absolutely probable and indeed more probable, with many others : « The reason is that, although he sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, just as the buyer in good faith, to rescind the contract by rendering the thing back to the thief ; for the reception of the buyer, once retracted, is not in fact the cause why the owner loses his thing ⁷ ». But if, on account of longer detention with the buyer, damage should accrue to the owner on this head, it would have to be compensated.

You will ask 6° what, if the thing of another has passed through the hands of several possessors in bad faith, by donation or sale?

I answer 1°. As to the thing, it is to be restored by the last possessor. That one failing, the ravisher is bound for the price of the thing. But if neither satisfy, the rest ought to pay the price of the thing in equal parts. Finally, the others failing, each is bound to the whole, because the obligation lies upon them in solidum.

I answer 2°. As to the fruits of the thing or damages ensuing from the detention, each individually is bound to compensation for the part of the time during which he detained the thing. But if the rest do not restore for their own part of the damaging and enjoyment, the reparation of the whole damage falls to each one, pro rata of the time elapsed from the day on which they successively became unjust possessors of the thing of another ⁸ .

You will ask 7° whether the thief, besides the money taken away, ought to restore also some increment.

I answer, affirmative, if it be established or legitimately presumed that the owner was going to receive profit from his money; because he has suffered loss, and he ought to be made whole; but otherwise in the opposite case, because the owner, who underwent no loss, would grow rich from the thing of another ⁹

You will ask 8° whether the possessor in bad faith can deduct the expenses incurred in preserving or improving the thing.

I answer. It is more probable that necessary and useful expenses can be deducted, in the forum of conscience, by the possessor in bad faith, and that the owner is bound in justice to refund them to him. This is the teaching of D. Thomas here, q. 100, a. 6, ad 3, where, having said that he who simoniacally received a benefice is held to restore, not only the fruits received, but also those which could have been received by a diligent possessor, he adds that this is to be understood « with the expenses made for the sake of the fruits deducted. »

Proof of the answer by reason : between the possessor in bad faith and the owner of the thing there intervenes a virtual and tacit contract, whereby the owner binds the thief that, if he do not restore the thing, he preserve it and, insofar as he can, bring it to completion, and therefore make the expenses necessary for these purposes. Therefore the owner is bound to refund these expenses as made by his will, when the thing is restored to him. — Proof of the antecedent.; because by law it is presumed that the owner wishes his thing to remain intact, nay rather, insofar as possible, be increased to his own advantage. Therefore he intends to bind the thief to these ends on supposition that he retain the thing.

So it is by natural law, and also by positive law ¹⁰ , namely lest the owner of the thing grow rich from another's good. Indeed it is permitted the possessor to deduct merely voluptuary expenses, provided however they can be separated intact, unless the owner prefer to refund them.]

I said, « in the forum of conscience, » because in the external forum the possessor in bad faith will be deprived of expenses of any kind whatever, in punishment of his delict, and he will be bound to obey that sentence as just ¹¹ .

You will ask 9° whether anything, and what, is to be restored by a possessor of doubtful good faith.

I answer 1°. He who, before possessing the thing, doubts whether it is stolen, or whether he can justly possess it, first sins against justice by possessing it or acquiring it with the mind of retaining it for himself; because he exposes himself to the danger of detaining the thing of another against the reasonable wish of its owner, and by this very fact possesses unjustly.

But if, after a diligent inquiry, to which he is bound, as was said concerning things found, it be established that it belongs to another, he must restore it entire ; if doubt remains, it seems more conformable to reason and natural equity that he restore, not the whole, as certain ones wish, for perchance it is his own, but a part pro rata of the doubt.

[It is to be noted that he who begins to possess in doubt by despoiling another of his possession must, while the doubt persists, first restore the whole thing to the prior possessor, who unjustly deprived him of it under a certain title.]

I answer 2°. He who, after acquiring the thing in good faith, begins to doubt with founded doubt whether it is not stolen : 1° He is bound to inquire into the truth, employing moral diligence greater or less, according to the quality of the thing, as was said concerning things found ; otherwise he exposes himself to the danger of detaining another's property, and becomes a possessor in bad faith. 2° But if, after sufficient inquiry, an equal doubt remain, according to several he may retain the thing as his own, consume it, sell it, etc., because then this rule of law runs : « In equal doubt, the condition of the possessor is better, » according to which all tribunals, ecclesiastical as well as civil, adjudicate a possessed thing in doubt wholly to the possessor. He must nevertheless be disposed in mind to render to the owner, if he appears, the existing thing, or, if it does not exist, that by which he was made richer, and if he sells, to warn the buyer of such doubt, because it is a defect whereby its value is diminished.

(It is rightly pronounced that the thing can be adjudicated to the possessor in equal doubt, on account of the title of possession, which doubt does not destroy. St. Liguori proceeds farther, and from the principles we laid down in the treatise on Human Acts, on Probability, admits the same conclusion when the possessor has in his favor a probable opinion, and against himself one more probable; or in his favor possession alone, and against himself an opinion uniquely probable. In this twofold case he can retain the thing as his own, until it be morally established, that is, by proof overcoming the presumption born of possession, that the thing belongs to another. The reason is that, as soon as the possession itself is not doubtful, but certain and legitimate, though alone, it bears per se, according to the cited rule of law, a certain presumption concerning the formal justice of the possession, which preponderates over all reasons not admitting moral certainty, and yields only to truth ¹² .

Those who then decree that the thing is to be divided pro rata of the doubt do not attend to the fact that they attribute certain right to him in whose favor the doubt or probability militates without a certain title.)

You will ask 10° whether a possessor of doubtful good faith can prescribe, if, after due inquiry, the doubt persist.

I answer 1° affirmative, more probably, if he began to possess in good faith ; because that persistent doubt, which due diligence could not dissipate, has become invincible, and consequently, even while it remains, a tranquil conscience can be formed, especially from the principle of law : « The condition of the possessor is better. »

I answer 2° negative, if he began to possess with doubtful good faith, because he is destitute of the good faith required for prescribing ¹³

You will ask 11° whether he owes any restitution who doubts whether he has unjustly damaged someone, v. g., whether his command or counsel effectively influenced someone to damage; whether death followed from a wound inflicted; whether offspring was born of adultery.

I answer. It is more probable that one who doubts whether he has unjustly damaged another is held to restitution, not of the whole, but of a part, pro rata of the doubt.

Proof 1°. He who doubts whether he caused a damage doubts consequently whether he is bound to restore, just as he who judges with certainty that he inflicted a damage judges with certainty that he is bound to restore. Yet, by the very fact that he doubts whether he is bound to restore, he is certainly bound ; because, if he do not restore, while perhaps he is bound, he exposes himself to the manifest danger of committing an injustice, and here this rule of law runs : « In doubt the safer part is to be chosen. » Therefore.

The adversaries answer that he who doubts whether he did a damage doubts only perhaps speculatively whether he is bound to restore, because by a reflex judgment, that « in an equal case the condition of the possessor is better, » he remains practically certain that he is not bound to restore, unless it be certainly evident to him that he is bound; for he possesses his own things, and therefore ought not despoil himself of them, because he is not bound.

On the contrary. Possession does not make the condition of the possessor better, nor exempt him from restitution in doubt, except insofar as it founds a presumption that there does not subsist a reason obliging to restitution, as happens in those things which we have possessed in good faith for a long time, inasmuch as it is not likely that men greedy of their own things leave them to be possessed by others, as I said concerning prescription. But, in our case, the possession of your own things does not found a presumption that there does not subsist a reason obliging to restitution, which is the damage of which you doubt.

Proof 2°. In the case proposed, the presumption of damage stands against the doubter, so that it falls upon him to prove that he did not cause it. Therefore, if he does not prove it, he is bound to its reparation, at least in part. — Proof of the antecedent. Where a delict is established, the presumption stands against the delinquent, so that it falls upon him to prove that no damage came thence from those things which usually come from such a cause; because, according to all laws, in doubtful causes favor is rather to be shown to the innocent than to the guilty. Yet the delict is established, namely that an unjust sufficient cause of the damage has been posited. Therefore.

It is confirmed. When two concur per accidens in the same damage, and it is doubted by whom it was caused ; v. g., two shoot at the same man, and it is doubted from whose stroke he was killed; two commit adultery with the same woman, and it is not known from whose intercourse the offspring was born : each is held to restitution in part, as the theologians commonly teach. Therefore, a fortiori, the guilty one, while he concurs with an innocent one.

You will say : The offspring, in doubt, can hold itself legitimate until it be proved spurious. Therefore also the adulterer can hold it legitimate, and thus restore nothing for it.

I answer. I deny the consequence ; because the laws so dispose in favor of the innocent offspring, not in favor of the guilty adulterer.

[To us it seems that this question is to be solved otherwise, and let it stand as an example of the case of offspring born of adultery.

This principle must first be laid down, that someone is not bound to repair any damage unless it be established that his action was the positive, efficacious and formally unjust cause of the damage. I say, « unless it be established; » because, if it were pronounced that one who doubts whether he damaged another is bound to restitution, a certain obligation would be drawn out of a doubtful cause, and the effect would exceed the virtue of its cause; which is repugnant. And the same must be said even if the doubtful damager were compelled to repair only a part of the damage, pro rata of the doubt; for, as was said above, certain right would be attributed to the damaged party without a certain title.

In the proposed case a distinction must be made. Either it is doubted whether the offspring is of the husband or of the adulterer, or it is doubted whether offspring certainly born of adultery is of this or that adulterer.

If the former, the adulterer is bound to nothing : 1° because the damage is not established ; 2° because the offspring is presumed legitimate, unless the contrary be proved, all the more since adulterers strive to forestall the natural effect of the crime. St. Liguori adds a third reason ¹⁴ , namely that « the condition of the adulterer possessing his own goods is better, which he is not bound to despoil himself of for a doubtful obligation. » So it is commonly held, against certain ones who say restoration is to be made pro rata of the doubt.

If the latter, a subdistinction must be made.

1° If perchance two, by common counsel, led another's wife into committing adultery, many say each is bound pro rata of the doubt. We, however, proceeding farther, judge that they are bound in solidum, so that, one failing, the other is bound to the whole, because they acted as one agent.

2° If two adulterers perpetrated the crime without any counsel, the theologians disagree. St. Liguori ¹⁵ exempts each from the obligation of compensating the damage, on account of the reasons brought forward in the case where it is doubted whether the offspring is legitimate or adulterine. But it must be said more truly that each is bound, at least pro rata of the doubt, as Gury affirms ¹⁶ , and better in solidum, as it seems to us. The reason is that each was in a different way the positive, efficacious and formally unjust cause of the damage inflicted upon the husband, who has certain right to compensation.

He indeed who was made father of the adulterine offspring inflicted the damage and is bound to repair it ; but if he cannot be recognized as such, this comes about through the act of the other, who by his crime impeded that compensation be demanded determinately from the author of the damage, and from this uncertainty the innocent husband, who was certainly harmed, ought not suffer. Therefore.

Although St. Liguori seems to dissent in solving that question, nevertheless he favors our conclusion; for, even if he exempt both adulterers from every obligation, he nevertheless makes exception ¹⁷ , if the second adulterer perceived, at least implicitly, that he would be the cause of that uncertainty ; which falls back into our opinion.

What has been said of adultery must be understood of similar cases.]

Whether he who impedes someone from the attainment of some good is held to restitution.

Note. The good that can be impeded either is owed to one's neighbor by commutative justice, inasmuch as he has a perfect right and in re to it, as to a benefice after its collation and confirmation, possession not yet acquired; or a right to the thing whereby he could reclaim it at law and make it his own, as to a benefice after election or presentation, or to a thing promised or bought but not yet delivered. Or it is not owed to him by commutative justice, but he has toward it only a certain moral right, whether from distributive justice, or from gratitude, or from the good will of him on whom it depends.

I suppose as certain that he who impedes someone from attaining a good owed to him by commutative justice, in whatever way he impede it, even by prayers or persuasions alone, without force or fraud, is held to restitution; because he violates commutative justice and the strict right of another.

I say 1° : He who without force, fraud or guile, but by prayers alone, persuasions, counsels, blandishments and similar means, impedes someone from attaining a good not owed to him by commutative justice, but either from distributive justice alone, or from another's gratuitous will, although already determined upon giving, is not liable to restitution : because he does not sin against commutative justice, nor violate the strict right of another; for that determined will of the giver does not confer strict right. Whence, just as the former could change his will without injury to the donee, so can another induce him to this change of will without injury to him.

I said, « a good owed by distributive justice alone, » such as benefices and public offices, which since they are principally ordered to the common good, and not to the private advantage of the particular persons to whom they are conferred, are not owed to these except by distributive justice. Otherwise of the public good, which is principally instituted for the utility of individuals, such as the public treasury, pious foundations, revenues from common goods ; for these are owed to individuals by commutative justice, inasmuch as each one has some strict right to his own part.

But greater is the difficulty, whether at least he who does it with the mind of harming is not liable to restitution. Whence

I say 2° : He who by the aforementioned lawful means, without force or guile, impedes someone from attaining a good not owed to him by justice, even if he do so with the mind of harming, from hatred, vengeance, etc., is not bound to restitution. This is common opinion with Soto, Navarro, Lessius, Laymann, Silvius, Serra ¹ , etc., against certain ancients, among whom among recent authors Daelman adheres.

The reason is that the mind of harming, through an act which of itself and in these circumstances is not invasive of the strict right of another, is not against justice, but only against charity, nor does it make otherwise that the external act, which of itself and in these circumstances is not unjust, become unjust; for intention does not change the external act. But the obligation of restoring arises from an external violation of justice.

It is confirmed by the example of a judge who, condemning the accused according to the order of law from hatred and the mind of harming, does not sin against justice, and is not held to restitution.

You will say : According to the laws, if you cut the veins in your field through which water is conveyed to another's well, with the mind of harming, you are bound to restitution ; if with the mind of your own utility, you are not bound. Likewise, if you reveal someone's crime with the intention of defaming him, you sin against justice and are liable to restitution ; otherwise if from the intention that the guilty man be corrected, or that damage to an innocent be avoided. Therefore similarly in our case.

I answer. I deny the consequence. The disparity is because, in the cases objected, the act is by its nature and in these circumstances invasive of another's right, not in our case. But when the act is by its nature and in these circumstances invasive of another's right, yet so that on account of some reasonable cause we are permitted to do it, having ourselves only permissively toward the other's damage, then, if the intention of harming be present, we sin against justice and are bound to restore ; if absent, we do not sin, nor are we liable for the damage. The reason is that, for anyone to sin against justice and be liable for damage, there is required and suffices that he be the voluntary cause of a damage unjustly inflicted. But when someone through an act invasive of another's right intends his damage, and not some utility to which he has a right, nothing is lacking for him to be reckoned the voluntary cause of this damage inflicted groundlessly and unjustly. But when he does not intend the damage, but some utility to which he has a right, he is not reckoned the voluntary cause of the damage, but holds himself only permissively toward it. And thus stand the examples in the objection.

I say 3° : He who by force or fear, fraud or guile, detraction, lies and similar unjust means, impedes someone from attaining a good, although not owed by justice, but hanging upon another's free will, sins against justice and is bound to restitution of the damage according to the proportion of hope or certainty of having such a good : so that, if it were not yet settled that it be given to him, he is not bound to equality, but to some compensation, weighing the conditions of the persons and of the business, according to the judgment of a prudent man ; if it were settled that it be given to him, he is bound to equality, full certainty being supposed, otherwise, as was said, according to the proportion of certainty ²

The reason of the conclusion is that the impeder thus inflicts damage upon another through true injustice. For although that other does not have strict right to this good, he nevertheless has from nature strict right to seek it, pursue it and obtain it. Likewise he has the right not to be cast down and impeded from that prior right by force, fear, fraud, guile, lies and similar unjust means. Therefore he who by these unjust means impedes him injures his right, and consequently sins against justice and is bound to restitution, according to the said proportion of certainty or hope of obtaining that good.

But ask why he who impedes by prayers or persuasions is not equally bound to restitution, seeing that he also casts down one pursuing his right of obtaining.

I answer, the disparity is because, prayers or persuasions alone being posited, the giver remains in liberty of giving, and the recipient in liberty of pursuing; but force or guile being posited, the liberty either of the giver or of the recipient is taken away.

Certain difficulties are expounded concerning cooperators in general.

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

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

« Command, counsel, consent, the flatterer, recourse,

Partaking, silence, not hindering, not disclosing. »

These modes differ in that the six former concur to damage positively and directly, the three latter negatively only and indirectly.

[III. It must be said in general that those who concur directly to damage are held to compensate it. The reason is that they are the positive, efficacious and formally unjust cause of this damage. And this is confirmed by the condemnation of the following proposition, n. 39, made by Innocent XI, March 2, 1679 : « He who moves or induces another to inflict grave damage upon a third party is not bound to restitution of that inflicted damage. »¹]

IV. That it may be known when and how much these modes oblige to restitution, this general rule must be kept : They oblige to restitution insofar as they influence efficaciously into the damage; for the whole obligation of restoring arises from influx into the damage. Wherefore, if they certainly influence efficaciously into the whole, they oblige to restitution of the whole; if into part only, they oblige only to part; if they certainly influence in no way whatever, to nothing; if probably, they oblige according to the measure of probability; if under doubt, proportionately to the doubt, as was said above.

[It is to be noted here, from the principle laid down and demonstrated in the treatise on Human Acts, dissertation VI, art. 3, that if the influx of some action into damage inflicted on another be only probable, or doubtful, which is the same thing, the agent is not held to compensation until it be certainly established that this action concurred positively, efficaciously and unjustly to the damage. The reason is that a doubtful obligation is no obligation. To this you will recur. So concludes St. Liguori.²]

V. But if they do not influence unto the substance of the damage, but only in its manner, for example so that it be more quickly, more boldly, more atrociously, at such place, at such time, with such increase, it is doubtful. We with St. Antoninus, Paludanus, Navarro, Gabriel, Henry of St. Ignatius, Henno and others believe more probably that one thus influencing is held to restore only as much as that mode or circumstance was damaging to his neighbor; because he is only the efficacious cause of that circumstance and not of the substance of the act according to its damaging species³ .

VI. From what has been said you will infer : 1° If you command, counsel, etc., theft to one already disposed to steal, whether of himself or from another's command or counsel, so that he is moved to steal no more by you, but would steal independently of it : you sin indeed in affect against justice, but you are not held to restore because you do not influence efficaciously into the damage.

2° If one prepared to steal ten, you counsel him to steal twenty, then you are held to ten only and not to twenty; because efficaciously you influence to ten only : unless perhaps by your counsel you have made him firmer toward the whole theft.

[Even if the thief had been made firmer by counsel toward the whole theft, the counselor would not be held to repairing the whole unless it were established that he efficaciously concurred to the whole, namely that the thief would have changed his will if he had not been impelled to carry it out. Therefore, in the case proposed, the counselor is held to ten only, because he is the certain efficacious cause of only half of the damage.]

3° If to one prepared to steal today you counsel stealing tomorrow, you are bound insofar as this circumstance harms your neighbor, because efficaciously you influence into it alone. But you are bound to nothing if you counseled for the purpose of turning him away from theft, hoping the thief would change his mind or occasion fail, or for some upright purpose.

4° If to one prepared to steal twenty, you persuade him to steal only ten from the same person, with the mind of turning him away from the greater, you do not sin nor are you held to restore anything; because you rightly persuade, and usefully manage the owner's affair. For the sense of this counsel is not absolute : « Do this lesser evil, » but conditional : « If you have decreed to commit this kind of evil, do rather that wherein there is less than what is greater. » But if you persuade this with a perverse mind, for example because he will steal ten rather than twenty more easily or more safely, you sin and are bound to restore insofar as this circumstance harms your neighbor.

I said, « from the same ; » because if to Peter prepared to steal twenty you persuade John to steal ten, you sin and are held to restore ten to John; because you thereby efficaciously cause damage to him, so that without you he would not be damaged; nor do you have a right of keeping Peter whole at John's loss, whence John is reasonably unwilling. Say the same, if to someone prepared indeterminately to steal from anyone, you persuade stealing determinately from such a one; because equally you are the cause of the damage of him whom you designate. Otherwise, if you persuaded only in general that he steal rather from a rich man than from a poor man, designating no one in particular nor indicating any; because then you injure no one, but only persuade a lesser evil, to turn him away from the greater.

§ II

The individual modes are expounded.

COMMANDING

I. One commanding is said to be he who by his express or tacit mandate moves another to inflict damage upon someone in the name of the commander himself. He is held not only for the damage which he expressly commanded, but also for that which, the circumstances being weighed, could humanly have been foreseen as about to follow from his command : as if he command a servant to mutilate Peter, but the servant in mutilating kill him.

II. Where the commander revoked the mandate tacitly or expressly, and that revocation came to the knowledge of the agent, regularly the commander is not bound to restore qua commander, even though the effect follow; for through the revocation made known, the mandate expires, and thus he can no longer be reckoned the cause of the damage, nor does the agent then act in the name and by the will of the commander, but in his own name and by his own motion.

I said that he is not bound to restore « as commander, » because he can, even after revocation of the mandate, be bound under other titles : 1° As counseling, if by commanding he imbued the agent's mind with perverse arts and counsels, whose force and impression he did not sufficiently wear away. 2° As not hindering, if, notwithstanding the revocation of the mandate, he does not impede, insofar as he can, the agent obstinate in perpetrating the crime, because he is the cause why his neighbor is in such danger, which therefore he is bound by justice to avert if he can. At least this is probable.

[If it be established to the commander that the revocation of his mandate was not heard or understood by the agent, v. g., on account of deafness, or because letters were intercepted, he is bound to reparation of the damage; for in fact he efficaciously flowed into the damaging action. The sin indeed was retracted, but the freely posited cause was not removed.]

III. When the commander cannot revoke the mandate efficaciously, he is bound to warn the one about to be damaged that he provide for himself⁴ , even at equal loss to himself, if there be hope of impeding this evil, yet not at a loss to himself far greater and of higher order.

[IV. The commander is bound to repair the damages which accrue to the agent from execution of the command, if he impelled him through fraud, force or grave fear, and foresaw the ensuing damages at least confusedly. The reason, because he is the positive, morally efficacious and unjust cause of the damage. Otherwise, probably, if the agent wished spontaneously, or hired for pay, to take upon himself the whole burden and consequences of his action.

V. If the agent damage another through avoidable error, v. g., if commanded to kill Peter, he kill Paul, or if damage befall someone because the agent spontaneously exceeded the limits of the command, the commander is bound to nothing : because he is not the positive and morally efficacious cause of an effect which he could not foresee.

VI. A superior who ratifies the simple proposal of inflicting damage upon someone is held to restitution; for by his approbation, converting the proposal into firm will, he becomes in a manner a commander relative to the inferior, and has flowed positively, efficaciously and unjustly into the damage.]

COUNSELING

[I. One counseling is said to be he who by counsel, prayers, promises, suggestion of a motive, or showing a way of doing harm, induces another to inflict damage upon a third person. He differs from the commander; because the executor of the command acts in the name and for the advantage of the commander, but the executor of the counsel in his own name, although at the impulse of another's counsel.]

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

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

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

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

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

[It is here to be observed that the counselor is not held toward him who suffered the loss unless the counsel was unjust, efficacious and formally unjust or culpable. Furthermore, in this latter case, namely if the counselor, neither expert nor presenting himself as expert, being asked, opens his opinion simply and without the mind of harming, his counsel lacks none of the three conditions required for the obligation of repairing damage to exist. Therefore. Otherwise, however, it must be said if, conscious of his inexpertise, he volunteers counsel from whose execution he foresees, at least confusedly, that damage may befall a third person. So commonly⁵ .]

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

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

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

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

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

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

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

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

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

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

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

2° But if the counsel was clothed, that is, leaning on urgent motives, it is contested. Several hold the counselor not exempted from the obligation of reparation even if he recall the counsel; for, they say, the motives proposed continue always to move. Many indeed excuse from compensation, provided other motives of equal efficacy be opposed; because the previously posited cause is elided, and the author of the damage acts from his own malice, especially if the counselor tried to stir his conscience. St. Liguori calls this opinion, which seems probable to the theologians embracing it, very probable, and indeed most probable, sufficiently probable, although he holds the opposite more probable⁶ . We judge, however, that it can be held as absolutely probable and indeed more probable, if truly the counselor tried in the best way he could to avert the damage.

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

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

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

But if the counselor cannot turn the executor away from inflicting the damage, he is bound by justice to admonish the owner, that he may provide for himself⁷ , as was said above.]

CONSENTING

[I. One consenting is here understood to be he who by unjust suffrage, vote or sentence is the cause of damage inflicted on another. Hither come all who by common counsel decree or do something; likewise counselors, deputies, senators, judges, etc., who concur to enacting or promulgating laws, to issuing sentences, to distributing offices, etc.

II. The suffrage of the consenter is either consultative or decretory, as it is given by way of counsel only, or by way of sentence by virtue of which execution must be done. There can be added a purely approbative suffrage.

One consenting by consultative vote is bound to reparation as the counselor, that is, insofar as he certainly and efficaciously induced the superior or another to inflict unjust damage. He can discern, moreover, from circumstances whether the superior was moved by his vote wholly or in part.

One consenting by decretory vote is bound to reparation as the commander, that is, whenever and insofar as knowingly and freely he gave efficacious consent to the unjust damage of his neighbor. The reason is that he concurs positively and efficaciously to the validity of the decree by virtue of which the damage was inflicted. Whence he is bound, like the rest, pro rata and in solidum⁸ .

One consenting by purely approbative suffrage, since the resolution is already definitive, is not the positive nor efficacious cause of the damage, and therefore is bound to nothing by justice. Of him below.

III. Distinguish with Cajetan, in Summula, vo. Restitutione, § 8, between consent which is cause, and consent which is only consent, and not cause. V. g., an unjust war is in question; the counselors, or those to whom it belongs, are convened, they consent : their consent is not only consent but also cause of the unjust war, because the business hung upon their consent, and that they are held to restitution is beyond doubt. Say the same of senators voting for an unjust sentence, of voters casting votes in election of an unworthy man to prelacy or benefice. Many others hear that the unjust war has been decreed, the unjust sentence passed, the unworthy man promoted, they approve, consent, say : « Let it be done, so be it. » Their consent is only consent, and not cause of the unjust war, the iniquitous sentence, the promotion of the unworthy, since the will of the unjust voters does not hang upon them, is not changed by them, etc., and although they gravely sin by consenting to iniquity, they are nevertheless not bound to restitution of damages. So, with some things added, Card. Lugo praises it.

[In the former case the consenter is the positive, efficacious and formally unjust cause of the damage; in the latter he is cause under no title.

IV. Since now the number of suffrages sufficient for decreeing the damaging action is completed, is he bound to reparation pro rata and in solidum who adds his suffrage?

It must be said : 1° It is certain that all consenting are equally bound to reparation, if they gave their suffrages by agreement; because, a conspiracy entered, they acted as one agent, and theirs is one moral action.

2° It is also certain that all contract the obligation of repairing, if they gave their suffrages at the same time; because, since none was then prior or posterior, the sentence or decree is attributed to all by right.

3° It is certain likewise that those are not to be excused from reparation who cast their suffrage first, before the required number was completed, even if they were certain others would act similarly; because they flowed positively and efficaciously into the damage. So commonly.

4° Is the same to be decreed concerning those who voted, conspiracy and simultaneous emission of suffrages set aside, when the required number of votes had already been completed? It is contested. Several weighty theologians deny, because suffrages of this kind were in no way the cause of the damage, which had been sufficiently prepared and determined by others. Others affirm, because he who thus emitted his suffrage willed to concur positively in inflicting the damage, and indeed concurred efficaciously, seeing that the sentence or resolution was not definitive except, as is supposed, after all the suf frages had been collected; whence all acted as one agent, and the damage must be attributed to all in solidum⁹ . This latter opinion seems to us more probable and truer.

But if anyone doubt whether his suffrage was among the prior ones and necessary to the damage, besides the reason brought forward to establish the obligation of reparation, another must be added, namely that he at least impaired the right which the damaged party had to exact reparation from another voter, namely by rendering the matter uncertain¹⁰ . Whence, like the rest, he is bound pro rata and in solidum.

Some exempt voters thus from the obligation of repairing damage when the sanction of king or president is required for the validity of the sentence or law, as happens in constitutional governments; because, so long as this sanction is lacking, nothing is definitive, and the harmful decision must be ascribed to the executive power. But that reason is not peremptory; for the sentence or law pertains conjointly to the voters and to the sanctioner, who act as one agent and are together the positive, efficacious and formally unjust cause of the damage. Whence, as all concurred to the damage, all are bound to concur to reparation.

V. But is he bound to repair the damage who does not cast his vote, when he could?

A distinction must be made. Either the vote was to be given from mere benevolence, but not from office, and concerning another's thing not owed, as concerning conferring some favor, and the omission generates no obligation of repairing damage, because no injustice was inflicted. Or the vote was to be given from office, and the omission was the efficacious cause of the damage, and this damage must be compensated.

VI. It can happen that a gravely harmful vote be cast in good faith and concur efficaciously to damage. V. g., the question of proclaiming a war just from elsewhere is agitated; the minister of arms falsely affirms that everything is ready and victory is most probably to be hoped for. War is proclaimed, everything goes to ruin and citizens suffer gravest detriments. If the affirmative vote can no longer be opportunely recalled, he who gave it is not bound to repair the damage pro rata sua ; because, if he was the positive and efficacious cause of the damage, he was not its formally unjust cause, that is, culpable theologically.]

FLATTERER

The flatterer or adulator is said to be he who by praises, flatteries, or even reproaches moves someone to inflict damage, exaggerating or reproaching an injury inflicted upon another, declaring it not to be borne by a noble man, extolling vengeance, mocking patience, vituperating poverty, preaching the utility of theft. Those therefore who by these and similar modes move morally to unjust damaging sin gravely and are held to restitution. Nor is it necessary that they intend damage directly; it suffices that they intend it indirectly, inasmuch as they foresee or can foresee it about to follow from their flattery. This mode of cooperating differs little from the counselor. For what else is it to reproach another with his cowardice, or praise vengeance, than to counsel it to him ? What therefore I said at greater length concerning the counselor, hold here for what is said.

[He is not bound, however, to reparation of damage who approves or ratifies a crime already perpetrated, unless his approval be the cause why reparation is not made, or new damages be inflicted which he could have foreseen at least confusedly.]

RECEIVER

Receiver, that is, one granting recourse, or harborer, vulgarly receleur, is called whoever offers security, convenience, protection, custody to the wrongdoer, whence it comes that he either inflicts damage, or does not restore damage inflicted. And that this one too is held to restitution is manifest, since he is the cause of unjust acquisition or detention. Whence the common adage : « S'il n'y avait point de recéleur, il n'y aurait point de voleur »¹¹

[Likewise held to restitution are merchants, and especially innkeepers, who receive thefts from sons of families, servants, hired workmen, and either conceal them in favor of such persons, or retain them for themselves as the price of goods and drinking bouts handed over by them.

He is not bound, however, who, after the theft is accomplished, aids the thief to flee, or receives him safely with his theft from friendship or from duty of office, as an innkeeper; provided he not thus flow into new thefts, offering thieves indiscriminately hope of refuge for the future. Nor likewise he who receives the thief from fear of grave damage¹² , for at his own grave loss he is not bound to avert another's damage.]

PARTAKER

[I. He who formally cooperates with another in a damaging action, concurring to the execution of his evil will, is always held to restitution. The reason is that the action of such a cooperator is positive, efficaciously and formally unjust, and therefore vested with all the conditions imposing restitution.

He who concurs only materially with another to inflicting damage can be excused from sin and from restitution, if namely he act from necessity or from a just and proportionate cause, without the mind of harming. The reason is that under such conditions cooperation is neither illicit nor unjust. 1° It is not illicit, although it be an aid to the damager, because for a just cause one can cooperate materially in another's sin; for, as was already said with the Angelic Doctor, when of one act there are two equally immediate effects, one good, the other evil, a just reason standing, the good effect can be intended and the evil permitted. 2° It is not unjust, although it inflict loss upon the owner of the thing; because, in a conflict

¹³ of rights, the lesser must yield to the greater, as is plain from what was said concerning him who is in extreme necessity. Moreover, since each one has a right to preserve his own goods, no one can be forbidden that action which per se is necessary for averting his own damage, although indirectly and per accidens damage befall another from it.]

II. A partaker is twofold, in plunder and in crime. A partaker in plunder only is he who, after the damage is inflicted, receives part of the plunder or theft; and this one, if while receiving his part he did not know it was stolen, is held to restore only that part if it exists; or, if it no longer exists, only that by which he was made richer, because he is bound only by reason of a thing received. If he knew it was stolen, he is bound, if it exists, to give it back ; if it does not exist, an equivalent, even if he was not made richer thereby : because he is bound by reason of unjust acquisition. Whence he who in good faith drinks wine, not knowing it is stolen, is held only insofar as he spared his own wine or beer ; if knowingly, to its value, even if he spared nothing of his own wine or beer.

A partaker in crime is not only he who immediately per se exercises with another a damaging action, as if two together kill a man, despoil a house, etc.; for these are rather to be called co-executors than cooperators : but also those who offer help or instruments for inflicting damage, as they who lend ladders to the thief, apply them, hold them, support the climber, accompany him that they may hearten him, make false keys, keep watch, supply poison or arms to the thief against an enemy, carry off plunder already made farther away, etc. That these, while they do these things spontaneously and without urgent necessity, are held to restitution of the whole damage in solidum is established, even if without their aid the damage would have been inflicted, because in fact they efficaciously flow into the whole.

III. But the question is very entangled and torments theologians not a little : whether those who do these things through fear of death or of some other grave evil, as happens, v. g., among captives rowing for the Turks against Christians, among peasants carrying away the stolen plunder of soldiers, etc., sin and are bound to restitution ?

I say 1°: To execute through fear of death an immediate damaging action, such as throwing down walls, boring through a wall, seizing moneys and other movables, casting them out the window, driving cattle from stables, casting fire into a heap, etc., is illicit and begets the obligation of restoring; because such actions are intrinsically evil. For what else is this than stealing ? But what is intrinsically evil cannot be adorned by any good end, and evils must not be done that goods may come.

[This conclusion is indeed true and certain in itself. Nevertheless three cases are commonly admitted in which, on account of grave fear, immediate cooperation in inflicting damage on one's neighbor is licit, because then the owner is not reckoned reasonably unwilling : 1° if the cooperator can and will repair the damage; 2° if, the cooperation failing, the damage would nevertheless certainly and equally have been inflicted by the principal agent ; 3° if the damage be light with respect to the owner; for then he ought to bear it with equanimity out of charity ¹⁴ . Except however damage to life, because it is never licit directly to kill an innocent man, and damage to limbs, or mutilation, to which it is not licit to concur except to forestall the mutilated person's death.]

But whether it be licit to cooperate immediately, out of gravest fear, in inflicting grave damage upon goods of fortune, if the cooperator cannot or will not repair it? Many deny, because the cooperation is intrinsically evil, and the owner is bound neither by justice nor by charity to preserve another's life at so great a burden to himself. St. Liguori, considering the matter with respect to the owner and the thief ¹⁵ , distinguishes under the former. Either the cooperator fears only damage of his own of the same kind : he would act unjustly by cooperating to keep himself whole, unless he did so with the mind of compensating ; because the owner is not bound to impede a like loss of another at the sacrifice of his own means. Or damage of a higher order is feared, for example death, or mutilation, or grave injury, and the cooperation becomes licit; for otherwise the owner would be unreasonably unwilling. As to cooperation in the damager's sin, since it is merely material, it becomes licit from a just cause.]

I say 2°: It seems to us more probable that actions which are not immediately per se damaging, but which precede or follow upon the damaging, such as lending ladders, keys, etc., opening the door, supporting the climber, rowing for the Turks against Christians, constructing embankments, carrying off farther the plunder already made, etc., if done through fear of death or of another evil far graver than the damage to be inflicted, are not illicit nor liable to restitution; because those actions are indifferent in themselves, and are done for a good end, namely for saving life. But it is not illicit to posit an action indifferent in itself for a good end, although evil follow from another's malice, especially when the good effect is of greater moment than the damage which follows from it per accidens.

If you say with the adversaries that these actions, although indifferent in themselves, nevertheless as done here and now are not indifferent, but truly concur to damage, I answer that they do not concur to damage as they come from the agent, but from the perverse use and evil will of the thief abusing them.

It is confirmed, the conclusion from an inconvenience. If the aforementioned actions were to be condemned, I do not see how nearly infinite actions which everywhere are admitted as licit could be excused. Thus he will sin and be liable to restitution who, driven by fear of death, returns a deposit of a sword to one demanding it for the slaughter of an enemy, or deposits money to one about to abuse it for usury, drunkenness, whoring, etc. Similarly the innkeeper will sin who supplies drink through fear of death to those about to make themselves drunk. Likewise the girl will sin who from an honest or even useful and necessary cause presents herself to the sight of a youth whom she knows will thence sin. Likewise guilty will be he who from hearing confessions, or from another honest action which he performs, foresees pollution ensuing, and six hundred other things, which no less than the aforementioned actions, as done here and now, concur to the evil effect. Nay more, actions which influence remotely will also be illicit. Thus he will sin and be liable to restitution who sells arms or poisons indiscriminately, knowing that some use them for others' ruin; similarly he who sells bird-limes, dice, playing cards, which he knows many abuse, and thus running through almost innumerable actions which occur continually : for these also are actions which influence in their own way into the evil effect, and although less proximately than the preceding ones, they nevertheless influence.

IV. You will ask whether, when several concur immediately to damage, v. g., despoil a vineyard, house, treasury, etc., they are bound to restitution of the whole in solidum.

I answer, with a distinction. 1° If they concur by mutual consent and counsel exciting one another, all are bound in solidum ; because then each is the cause not only of the partial damage which he does per se, but also of the damage which another does, and thus all as one cause flow into the whole damage. So more probably Soto, Bannez, Cajetan and others, whom Silvius cites and follows, against Paludanus, Sylvester, Navarro, etc.

2° If several concur to damage, not by common consent mutually exciting one another, but per accidens, each is bound only to his own part. As if, several laying waste a vineyard or despoiling a treasury, you arriving take your part, you are bound only to your part, and not to the parts of the others ; because you do not flow into theirs.

V. But there is a further question : whether by stealing a light part you sin mortally and are bound under mortal sin to restore this light part, if you know grave damage is being inflicted elsewhere by others or has been inflicted; nay, even if you know it not then, or learn afterward, are you likewise bound to restore your light part under mortal sin? V. g., traveling you enter a vineyard, see it already largely despoiled, or know it is soon to be despoiled, meanwhile gather one cluster and another : do you sin mortally and are you bound under mortal sin to restore these few clusters? Likewise you steal one cluster and another from an intact vineyard, not knowing what is thereafter to happen, afterward learn it was totally despoiled by thieves : are you again bound under mortal sin to restore your few clusters?

I answer, negative with Soto, Malderus, the Salmanticenses, Lessius and others; because no one sins mortally unless he has inflicted grave damage, or been the cause of grave damage inflicted by others. Yet in both proposed cases you inflicted no grave damage, nor were you the cause of grave damage inflicted by others. Therefore.

SILENT, NOT HINDERING, NOT DISCLOSING

I. These three concur to damage negatively only, inasmuch as they do not impede it when they can and ought to impede it; whence it comes that the damage is imputed to them.

The silent one is he who holds his peace when he could and ought to speak, forbidding the thief, dissuading him, reproaching him, crying out, etc., lest he do damage, or that damage inflicted be repaired.

The non-hindering one is he who, when he could and ought to impede the damage by bodily aid, or procure its restitution, omits to do so.

The non-disclosing one is he who, when he could and ought, does not denounce, does not uncover the wrongdoer, whether before the deed, that he may be impeded, or after, that reparation be made.

Therefore the silent one omits verbal effort toward the damager ; the non-hindering one, bodily effort toward the same; the non-disclosing one, verbal effort toward the magistrates or owners damaged or about to be damaged.

II. That these three, while they do not impede damage, be held to its restitution, three things are required : first, that they have culpably omitted to impede it; second, that they could have impeded it without grave loss to themselves; third, that they be bound to impede it from justice ¹⁶ .

III. Those indeed are bound to impede from justice who are bound from contract or quasi-contract, that is, from office : for he who takes up an office implicitly obliges himself to render the things which belong to that office.

Hence you will infer that guards of cities, fields, vineyards, forests, rivers, tolls, customs dues, are held to restitution of the dues or of damage inflicted in fields, forests, etc., while they do not impede thieves, plunderers, defrauders, etc.

As to payment of the fine which the damagers would pay if denounced or caught, it is probable the guards are not bound to it while they do not denounce or apprehend the damagers; because guards are not bound from justice to accuse for this end, that the state or owner grow rich from fines, but that the thief pay the dues and damages be impeded. Therefore. — Proof of the antecedent. Their office is not, nor are they constituted for this, that they procure fines, but that they receive the dues and that the things committed to them be kept whole. Therefore.

It is confirmed. Fines are not imposed that the state or owner grow rich from them, but that laws be kept and subjects held to duty. For pecuniary fines are imposed for no other reason than corporal ones, for example imprisonment, exile, the galleys. In these, however, only the reason of the law to be kept is attended to. Therefore also in those. Therefore guards are not constituted that the state or owner derive advantage from fines. If however through their silence or negligence the defrauding of dues or the damaging of things committed to them is increased, they are bound to some restitution, according to the judgment of a prudent man.

You will ask whether a witness who, legitimately interrogated by a judge, holds his peace and refuses to bear testimony, is held for the damage which follows from his silence.

I answer, more probably negative, with Bannez, Silvius, Lessius, etc.; because the command of a judge or superior does not impose an obligation of commutative justice, but only of legal obedience. Whence the witness by holding his peace does not sin against commutative justice, but only against legal obedience. Nor does it stand in the way that judge or superior intends to impose on him the office of testifying, because such a one does not accept it.

But the obligation of commutative justice, especially in our free acts, arises rather from the acceptance of the obligated party than from imposition by a superior, inasmuch as by accepting he promises and binds himself; otherwise, if he does not accept.

The same, for the same reason, seems to be said of him who, a monitory having been promulgated to reveal a crime, does not reveal it. But again of this below, while we treat of the injustice of a witness.

IV. It is asked 1° specially whether a confessor who through ignorance or gravely culpable negligence does not enjoin restitution upon a penitent who is bound thereto makes himself liable to this restitution.

I suppose that, if the penitent asking whether he ought to restore, the confessor answered nothing, he himself would certainly be held to restore, because one silent in these circumstances holds himself not merely negatively toward non-restitution, but is reckoned to concur positively to it, as persuading or consenting; for then the common saying is verified : « He who is silent seems to consent. » The question therefore concerns the confessor who holds himself merely negatively by silence.

I answer. It is more probable that the confessor, qua such, whether he have care of souls from office or not, is not bound in the case proposed to restitution. So of our authors Ledesma, Serra ; among foreigners, Valencia, Sa, Laymann, Sporer, Daelman, etc., against Navarro, Silvius, the author of the Supplement of Tournely, etc.

Proof 1°. The confessor is bound first from office to admonish the penitent concerning the obligation of restoring with respect to spiritual things only, not with respect to temporal things, whether of the penitent himself or of another third party ; for that office is wholly spiritual. Therefore, while he omits to admonish, he violates justice with respect to temporal things not at all, but with respect to spiritual things only. But violation of justice alone induces the obligation of restoring, and consequently the confessor is bound to repair spiritual damages, if they follow from his silence, not temporal ones.

Proof 2°. Given that the confessor, by virtue of administration of the sacrament of Penance, is bound from justice with respect to the temporal good too of the penitent; nevertheless this obligation is not extended to the temporal good of another third party, with whom by virtue of this very administration precisely he entered into no pact nor any convention, even tacit ¹⁷ . Therefore, omitting to admonish, he will indeed sin against the justice owed his penitent, but not against this third party. — I subsume. But restitution is owed to him toward whom justice is owed and with respect to whom it is violated. Therefore.

That third party has indeed a right that the penitent restore to him, but he has no strict right that the confessor, qua such, admonish the penitent in this matter, since by virtue of his office he did not bind himself thereto ; as though the confessor by reason of administering the sacrament of Penance were ex officio procurator of the temporal goods of anyone whatever.

[It is asked 2° whether a superior is held to repair damage inflicted by his subjects.

I answer 1°. He is bound in the external forum, unless he prove he could not have forestalled the damage. So by Roman law and commonly by present civil law ¹⁸ . In Gallican law express mention is made : 1° of the father, and after his decease, of the mother, relative to minor children dwelling with them ; 2° of the master or commander, relative to servants and agents ; 3° of the teacher and craftsman, relative to disciples and apprentices. If no theological fault has been committed by the superior, he is not bound to reparation until after sentence of the judge, if recourse is given him against the damager, who in conscience ought to make him whole if he can.

I answer 2°. In the internal forum he is not bound for the damage of the superior unless he commit theological fault against justice with respect to the injured person, that is, unless his silence or tolerance was morally equivalent to positive impulse.

The reason is that the superior, although he ought rightly govern his subjects, is not bound from justice to watch over the temporal goods of others ¹⁹ .]

[It is asked 3° whether servants are held to restitution for not impeding damages inflicted upon their masters.

I answer 1° affirmative, if the matter concerns goods specially committed to them; for they are bound by contract.

I answer 2° probably affirmative, when the damage is inflicted by strangers, even upon goods not specially committed to them ²⁰ . This seems to arise from quasi-contract; for masters reasonably hold their servants as set against such plundering of their goods. Several also say servants are then bound in solidum if several were similarly negligent herein ²¹ .

I answer 3° negative, more probably, against certain ones, if the damages be inflicted by fellow-servants ; because servants are not hired that they watch over one another.]

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

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

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

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

[And because they acted as one agent.]

But while one restores, the others owe to refund to him each his own part ²² : because the owner who received integral restitution from him is reckoned to have transferred to him the whole right he previously had; and otherwise his diligence would put him in a worse condition, since the fault and slowness of the others would plead their cause. Add that the non-restorers are the cause why he must restore the whole, when otherwise it would have sufficed to restore part, and therefore they are the cause of his damage.

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

I say : Primarily and principally the commander is bound; secondarily the executor, and consequently the others by orders, so that, the commander restoring, the rest are free from restitution; but the executor restoring, the commander is bound to restore to him, while the subsequent others remain free ²³ .

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

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

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

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

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

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

[When damage followed from counsel, the counselor or consenter is not held per se before the executor, because the latter is posteriorly the principal cause of the damage. This however is understood, supposing that the counsel, as often happens, is useful to the executor alone. But if it be useful to the counselor alone, the latter is bound first. But if to both, both are bound pro rata. Even if the damage inflicted profited neither materially, the same order must be kept, considering whether the damaging action was posited for the pleasure or vengeance of this one or that one, or of both. One failing, however, the obligation of reparation falls solidly upon the other ²⁴ .]

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

Goods of twofold kind must be distinguished here. Some are certain, others uncertain. Certain are called those whose owner is certain and known, uncertain those whose owner is unknown or uncertain.

§ I

To whom are certain goods to be restored?

I say : Certain goods are ordinarily to be restored to him from whom they were received, whether he be their owner, or only legitimate possessor ¹ .

Proof of the first part² . Restitution is employed that equality may come about, which consists in the equalization of things. Yet this cannot be had unless restitution be made to him who through the taking away has less than he ought to have. Therefore.

Proof of the second part; because while someone possesses a thing under legitimate title, although he is not its true owner, as the bailee for use, depositary, etc., he nevertheless has a right either of using it, or of guarding it, preserving it, etc.; which right is injured by taking away the thing, nor is it repaired except by restitution made to him, and not immediately to the owner.

I said, « ordinarily, » because there are several exceptions. First³ . When a thing to be restored appears gravely harmful to him to whom restoration is to be made, it ought not then be restored to him, but either kept back, that it be restored at a suitable time, or handed elsewhere for safer keeping; because restitution is ordered to the utility of him to whom it is restored. I say the same if he reclaim it to another's damage : both because he has no right of reclaiming for this end; and because by the law of charity, according to which God commanded everyone concerning his neighbor, we are bound to impede evil, whether spiritual or bodily, of our neighbor when we can conveniently do so.

Second exception. When nothing concerns the interest of him from whom the thing was received that it be rendered immediately to the owner, it can be given to one or the other.

Third exception. When he from whom the thing was received is not capable of dominion or administration, as is a minor ward, a son of family with respect to adventitious goods, a wife with respect to common goods, a Religious, etc., the thing must be rendered to tutor, father, prelate, husband, etc. : otherwise in the external forum, according to L. Pupillus, ff de Actionibus, you will be held to pay again, unless you prove that the thing rendered was applied to the utility of the father, ward, family, monastery, etc. Nevertheless in the forum of conscience such proof does not seem required, but it seems sufficient for your release from second restitution if you prudently believe that those to whom you restore will discharge their office. From this exception except things conceded to Religious for use; for these can be restored to themselves, not to prelates.

§ II

To whom are uncertain goods to be restored?

Goods are said to be uncertain in a twofold way : 1° simply, when their owner is absolutely unknown; 2° secundum quid, when the owner is known secundum quid and in general, but who he is in particular is unknown, as if you know you owe something to one of several, but know not to whom.

I say 1° : All goods simply uncertain, whether gotten from delict or not, or found, are to be expended on pious uses if, diligent inquiry having been made, the owner does not appear ⁴ ; for they cannot, as others wish, be said abandoned, since their owner certainly exists, though he be unknown; therefore they are to be expended according to his presumed will, that they be expended for his, or his kin's, or the state's utility, as we proved at greater length dissertation III, on Dominion, a. 1, § 4.

[In the same place was expounded and proved our opinion concerning goods of another possessed without delict. The locus of St. Thomas to which the reader is here referred must be restricted to goods unjustly acquired, seeing that the question is thus posed : « Whether restitution must always be made to him from whom something was taken? » namely by theft.]

I say 2° : Goods uncertain secundum quid are to be restored to their owner in the best way possible. This general dictum is plain of itself. And hence in particular,

If you know you owe something to one of two or more, but know not determinately to whom, and doubt persist after diligent inquiry, the thing is to be given to them in common, that either they divide it among themselves in kind or in price, or draw lots, or otherwise agree among themselves; these not agreeing, the matter be committed to the judge's arbitration.

If damage have been inflicted upon the community itself or the city, restoration must be made not to particulars but to the city itself or the community; because the community itself was harmed, not the individuals.

But if damage have been inflicted immediately upon individuals of some community or city, as happens in unjust war or plundering of towns, fields, in sales, namely when merchants, innkeepers, bakers and the like defraud indiscriminately buyers with adulterated wares, unjust measures or weights; and yet it is unknown in particular to whom damage was inflicted : restitution ought to be made not to the poor, but insofar as possible to the very persons harmed. If therefore you have plundered inhabitants of another district, restore the sum to be divided among them by the parish priest or an honest man, according to the proportion and probability of each one's loss. If you defrauded by selling, attend to who used to approach your shop more or less, and render to them more or less, namely by selling better wares, or at lower price, or with better weight or measure, or otherwise.

Finally, if you inflicted damage upon one or very few of some city, and to whom or to which ones remains absolutely unknown, but the city is known, restoration must be made to the poor of this city, because thus the owner's will is presumed, provided the thing be of some moment; for if it be of light moment, it can be restored to any poor man ⁵ .

[You will ask whether, when a creditor was compelled to make cession of his goods, restitution ought to be made to himself or to his creditors.

I answer. Generally speaking, restitution ought not be made to the creditor, but either to the commissioner constituted by the judge for collecting the goods remaining, before distribution, or, it is posited, because the thing or money to be restored belongs to the highest creditor, and his creditors have strict right that from the goods he possessed, or which accrue to him, they be made whole ⁶ . — Except unless the creditors of the assignor, after cession, have absolutely condoned to him the part of the debt unpaid ⁷ .

Nevertheless sometimes it is licit to restore to the creditor himself, namely if he be honest and owe himself to hand over the thing or money to his creditors, if the debt be of small moment; likewise if he be in grave necessity and greatly need the thing owed him; for, as the theologians commonly teach, it is lawful for the assignor to withdraw those goods which are altogether necessary for living ⁸ .]