Summa summae S. Thomae, Tomus III

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.