Moral Theology Part 81

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

(e) Error about the person injured, even though invincible, probably does not excuse from rest.i.tution, if the intention was to harm a cla.s.s (e.g., Semp.r.o.nius intends to kill Balbus, because the latter is a policeman, but by accident he kills another policeman) or an individual (e.g., Caius intends to kill t.i.tus and by mistake kills Claudius, the twin-brother of t.i.tus).

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

1765. Rest.i.tution for Damages That Are Only Venially Sinful but Seriously Harmful.--(a) When one injurious act is committed (as when through slight carelessness one sets fire to one's neighbor's chicken coop), some deny, but others affirm, the duty of rest.i.tution, while still others distinguish according to the full or only partial advertence to the sinfulness of what is done. Of those who hold for rest.i.tution, some think that all the damage should be repaired, since all was caused; but others think that it suffices to repair part, since the culpability was limited.

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

1766. Rest.i.tution on Account of Law for Damages That Are Only Juridically Culpable.--(a) Before sentence of court there is no obligation of rest.i.tution, for it would be too heavy a burden to impose this in view of the absentmindedness of so many persons and the numerous distractions one encounters.

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

1767. Rest.i.tution on Account of Contract for Damages That Are Only Juridically Culpable.--(a) Express contract obliges to rest.i.tution even for light fault (i.e., the omission of precautions taken by the more prudent), or most light fault (i.e., the omission of precautions taken by the most prudent only), or, if so stipulated, for no fault at all.

(b) Implied contract perhaps also obliges to rest.i.tution for juridical fault, for it seems that equity requires one to make good the losses caused by the absence of a care which the contract took for granted.

Thus, if the advantage is with the bailor alone (e.g., gratuitous deposit), ordinary care is expected and the bailee is not held in danger to prefer the bailor's goods to his own; if the advantage is with both parties (e.g., onerous deposit or loan), it seems that more than ordinary care is demanded and that usually the obligor may give preference to his own goods.

1768. Rest.i.tution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers.--(a) If there was theological fault, rest.i.tution is due, unless the injured party took the risk upon himself. (b) If there was only juridical fault, it seems there is no natural duty of rest.i.tution, since no injustice was done; but a court may oblige to damages.

1769. Two Cases in Which Culpability Seems Doubtful.--(a) When one has inculpably done or omitted something from which damage to another can be foreseen, and one has now become aware of the danger (as when Balbus lights a fire on his own property and sees that a change of the wind makes this fire dangerous for his neighbor's barn), one must prevent the damage, if this can be done without equal or greater damage to oneself; otherwise one must make rest.i.tution.

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

1770. Three Kinds of Unlawful Possessors.--The second root of rest.i.tution mentioned above (1762) is unjust possession, which includes the acceptance or the retention of another person's goods against the latter's will. There are three kinds of unlawful possessors:

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

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

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

1771. Obligations of the Possessor in Good Faith in Reference to the Property Itself.--(a) If the property is still in his keeping, he is generally obliged to return it to the owner, for a thing calls for its owner. An exception would be the case in which the possessor can not return the property to the owner without a greater loss to his own property.

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

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

1772. Obligations of the Possessor in Good Faith in Reference to the Fruits of the Property.--(a) He must restore the fruits of the thing itself that are in existence, for the thing fructifies to its owner.

Hence, he should restore to the owner the natural fruits (e.g., the fruit on the owner's trees) and the civil fruits (e.g., the money received from hire of the owner's horse).

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

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

1773. Rights of the Possessor in Good Faith in Deducting Expenses.--(a) He may deduct for all expenses that have benefited the owner, that is, for all the money he spent in necessary or useful ways in preserving or caring for the property. (b) He may not deduct for expenses that have not benefited the owner, or which the owner would not have reasonably authorized, such as special beautification of the property. But he may take away such adornments added by him as can be removed without injury to the property.

1774. Obligations of the Possessor in Bad Faith in Reference to the Property Itself.--(a) If the property is still in his keeping, he must return it to the owner, for a thing calls for its owner. But if the actual possessor had the property from the thief and could not restore it to the owner without serious loss to himself, it is held by some that he could return it to the thief in order to recover his money.

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

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

1775. Obligation of the Possessor in Bad Faith in Reference to the Fruits of the Property.--(a) He must restore the natural and civil fruits, even though the owner would not have obtained them from the thing, but he may keep the industrial fruits.

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

1776. Obligations of the Possessor in Doubtful Faith Who Began Possession in Good Faith (Supervening Doubt).--(a) If he does not culpably neglect attempts to settle his doubt, he becomes a possessor in good faith. If the doubt is settled against him, he must restore (1771); if the doubt continues, he may retain possession and prescribe (i.e., acquire ownership through long exercise of ownership rights), for presumption favors the possessor, but he must he willing to restore, should another appear as the rightful owner.

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

1777. Obligations of the Possessor in Doubtful Faith Who Began in Bad Faith (Antecedent Doubt).--(a) If the property came to the possessor in doubtful faith without legal t.i.tle (e.g., by violence), he has the obligations of one in bad faith, for presumption favors the former possessor.

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

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

1778. Coperators and Rest.i.tution.--Rest.i.tution is owed for coperation in injustice when the coperator becomes at least partially an unjust and efficacious cause of damage to another. It should be noted that this coperation may be of a limited kind, as when it extends only to the mode of the damage, or when it is not indispensable to the commission of the injury.

(a) Thus, he who coperates only as to the mode of injury is probably liable only for that damage which he added to the substantial damage.

Thus, if Balbus intended to steal $10, and Claudius persuaded him to steal $20, it seems that the influence of Claudius extended only to the amount of $10.

(b) He who coperates, but whose a.s.sistance is not necessary, is bound to rest.i.tution as a coperator, since he is an unjust and efficacious cause of damage. Thus, if Caius steals for Semp.r.o.nius, knowing that, should he refuse, Mercurius would carry out the orders of Semp.r.o.nius, the readiness to steal on the part of Mercurius does not excuse Caius or make his act any less harmful.

1779. Positive coperators in injury are bound to rest.i.tution when their act is the unjust and efficacious cause of the damage. The princ.i.p.al cases of positive coperation are the following:

(a) a mandator is a superior who explicitly or implicitly commands an inferior subject to commit an act of injustice, as when a father bids his son to steal. The mandator bids another to act in his name, and therefore he is the princ.i.p.al and not the accessory or secondary cause of injury. He must indemnify both the victim and the agent for losses he caused them; but he is not liable if he effectively recalled his mandate before the damage was done;

(b) an advisor is one who through instruction or persuasion induces another person to commit an injury which is not done in the name of or for the benefit of the advisor himself. He must make rest.i.tution both to the person whose injury he recommended and to the person to whom he gave the advice for the damages he brought upon them. Those who give wrong advice in good faith, or who recall their advice before the damage is done, are generally excused from responsibility. Bad example does not seem to be equivalent to bad advice, and he who recommends a lesser evil only because he wishes to prevent a greater one is not an efficacious cause of the lesser evil (see 1502, 1503);

(c) an implicit advisor (_palpo_) is one who by flattery, excuse, blame, ridicule or other such indirect means leads another to commit injustice against a third party. The implicit advisor is bound to rest.i.tution for damages caused or reparation denied through his fault;

(d) a protector or encourager (_receptans_) is one who knowingly and willingly bestows upon a malefactor, as such, security or comfort, in order that the latter may do injury with greater confidence or omit rest.i.tution for evil already done. He is bound to rest.i.tution for the unjust damage or retention of property caused by him;

(e) a consenter is one who gives his vote, decision, or approval to injustice, or denies it to justice. He must recall his consent to iniquity before evil results from it, and he must make rest.i.tution for damages that depend on his conduct;

(f) a partaker in injustice is one who gives a.s.sistance in the commission of injustice, positively and physically, by sharing in the injury or in some previous or subsequent act naturally connected with it. If he is a coperator in unjust damage, he must indemnify the injured party; if he is a coperator in unjust retention of property, he must give back to the owner the stolen goods received by him (1774).

1780. Negative coperators are those who by their silence or inaction permit an injury to be done or to go unrepaired. They are bound to rest.i.tution for the damages caused by them; but it seems that _per se_ at least they are not bound to rest.i.tution for bribes taken by them or fines lost through their fault. Their responsibility for damages supposes the usual conditions, namely: (a) they must be the efficacious causes of damage, and hence if their silence or inaction is involuntary, or if outcry or resistance would be useless they are not responsible; (b) they must be unjust causes, that is, there must be an obligation to act owed by reason of strict right, contract, or implied contract. Examples are confessors who culpably neglect to give penitents needed spiritual advice, parents who permit damage to be done by their children who have not the use of reason, voters who absent themselves and thus cause damage they were bound by contract to prevent, owners of animals who sinfully permit their beasts to ravage the fields of another person, doorkeepers who allow thieves to enter a house under their charge, collectors who permit bills to go unpaid. But if the obligation is owed by reason of some other virtue than commutative justice (e.g., one is bound only in charity to turn in a fire alarm when one notices a fire, if one is not the custodian of the house), one sins, and at times gravely, by inaction; but there is no duty of rest.i.tution.

1781. The Circ.u.mstances of Rest.i.tution.--By the circ.u.mstances of rest.i.tution are understood the persons by whom and to whom compensation is to be made, the things to be restored, the manner, time and place of rest.i.tution.

1782. The persons bound to make rest.i.tution are all those who singly or coperatively commit injustice. But when several commit injustice together, the following kinds of causes of the injustice must be distinguished:

(a) the causes are equal when there is no subordination among the coperators; they are unequal when one is a princ.i.p.al upon whom the others depend as secondary causes or instruments (e.g., when one hires thieves to steal for one);

(b) the causes are considered as total causes of the injury when they are princ.i.p.al causes, or equal but indispensable coperators, or conspirators; and perhaps also if they are sufficient causes (e.g., Caius and Semp.r.o.nius each fire at a neighbor's cow and each inflicts a mortal wound), or if the thing damaged is either not divided (such as a vineyard) or indivisible (such as a painting). In other causes coperators are considered as partial causes of the injury.