(e) Rash judgment is a certain convictio_Moral theology

which holds its own view as true and certain and does not consider the

opposite of its view as worthy of consideration. Thus, it differs from

doubt (that is, a state in which the mind is suspended between the

unfavorable view and its opposite, and does not incline to one more

than the other), from suspicion (that is, a state in which the mind

inclines to the unfavorable view, but does not assent to it as being

either probable or certain), and from opinion (that is, a state in

which the mind assents to the unfavorable view as being probably true,

but admits that it may be untrue). These various forms of mental

reaction were treated in 654 sqq.

(f) Rash judgment is rash, that is, a belief based on insufficient

authority, or an inference that is really groundless or not well drawn

from premises. Thus, if one judges that one’s neighbor is a thief,

because this was told one by an honest and well-informed person, the

judgment is prudent; but, if one judges this on the word of a person

who is unreliable or who has no knowledge of the facts, the judgment is

imprudent. Again, if one judges that it is certain that one’s neighbor

is a thief, because one has evidence that removes all doubt, the

judgment is prudent; but if the evidence is merely probable, an opinion

based on it is prudent, but a judgment based on it is imprudent. It is

not rash to hold that the majority of mankind are lost, or that the

present generation is not as good as the generation that preceded, if

one has good reasons for such beliefs; but a sweeping and all-inclusive

pessimism in such matters is unwarranted.

1732. The reasons for a judgment may be sufficient for something else,

but insufficient for the judgment actually formed.

(a) Thus, they may be reasons sufficient for judging that one kind or

degree of sin has been committed, but insufficient as regards another

kind or degree of sin. For example, if one breaks the lock of another’s

desk, there is an argument for willful trespass, but this alone does

not prove larceny or the intent to steal.

(b) They may be sufficient for doubt and insufficient for suspicion,

sufficient for suspicion and insufficient for opinion, or sufficient

for opinion and insufficient for judgment.

1733. Rash Judgment.--Opinion, suspicion, and doubt are also rash, if

there is no sufficient reason to warrant them.

(a) Thus, if there are no probable reasons for an unfavorable opinion,

it is rash to form such an opinion. For example, the mere fact that two

men have frequent and whispered conference together does not make it

likely that they are plotting evil.

(b) If there are no sufficient reasons for inclining towards an

unfavorable opinion or for suspending all assent, suspicion and doubt

are rash. For example, the mere fact that a man enters a house when the

owners are absent is no reason to suspect him of dishonest purposes, or

even to have doubts, if he is of good reputation and enters the house

in daylight and in a usual way.

1734. Sinfulness of Rash Judgment.--Rash judgment strictly understood,

then, is a firm assent of the mind, based on insufficient data, and

given to the view that a neighbor is or has been guilty of sin.

(a) From its nature this sin is mortal, for it consists in a contempt

for, and an injury to, what is regarded as one of the chief goods of

man, namely, the favorable opinion of him that is entertained by

others. It is denounced in Scripture as an injury to the law itself

(“He that judgeth his brother judgeth the law,” James, iv. 11), and as

meriting condemnation (“Judge not, and you will not be judged, condemn

not and you will not be condemned,” Luke, vi. 37).

(b) From the imperfection of the act or from the lightness of the

matter rash judgment may be only a venial sin, as when unfounded

suspicions arise in the mind without advertence to their sinfulness, or

when one rashly judges in some small matter (e.g., that another person

stole a pin or a cent).

1735. Rash judgment is not mortally sinful in an individual case unless

the following conditions are present:

(a) there must be perfect deliberation, that is, full advertence to the

judgment itself and to its sinfulness and gravity (see 175). There is

no full advertence to the sinfulness and gravity of the judgment,

however, if one does not perceive at least in a confused manner that

one is deciding in one’s mind without sufficient reason that one’s

neighbor is guilty of serious sin, and is thereby doing the latter a

great injury. But it is not necessary that the rash judgment continue

for a considerable time, for the malice depends on the evil done, not

on the length of time it has lasted;

(b) there must be serious rashness, for the sinfulness of the judgment

rests on its rashness. Hence, if one judges a sin to be certain which

is very probable or almost certain, there is no great imprudence and

therefore no serious sin;

rash judgment consists. Hence, if one judges that another is a drunkard

and neither the latter person nor others in the same place regard

drunkenness as very dishonorable, there is no great harm done.

Similarly, if one judges that some indeterminate individual of a

multitude or group is a rascal, or that a stranger whom one sees on the

street late at night is out on an evil errand, or that an unknown party

seen from a distance is on his way to a disreputable meeting, it does

not seem that there is great injury done; for one does not greatly

resent lack of esteem in others to whom one is not known.

1736. Rules on Perfect Advertence to Rashness of Judgment.--(a) There

is perfect advertence when one actually perceives that the reasons for

one’s unfavorable judgment are very insufficient; (b) there is perfect

advertence when one virtually perceives the serious insufficiency of

the reasons, that is, when one could and should perceive it, but is

vincibly blind to it (see 30, 31) on account of some passion wilfully

indulged, such as hatred or envy of the person judged. In these cases

one judges with negligence and precipitancy in a serious matter (see

Imprudence).

1737. Rules on Insufficiency of Reasons for Unfavorable Judgments.--(a)

Those authorities for sin are not sufficiently trustworthy whose

reliability is of inferior worth (e.g., because they are enemies of the

person against whom they speak, or calumniators, or gossipers, or of

bad reputation, etc.), or whose story does not merit the credence they

claim for it (e.g., because the person against whom they speak is known

as upright). If both the authorities for a story and the person against

whom they speak are equal in good qualities, there is sufficient reason

for doubts, but nothing more.

(b) Those arguments for sin are not sufficient which create for what is

concluded only a slight presumption (see 658), that is, which offer

facts that are never, or seldom, or not necessarily causes or effects

or indications of sin. Thus, it is rash to judge that a mature man and

woman conversing together in a dignified manner and in a public and

open place are discussing obscene matters; or that a respectable person

whose face is flushed, or whose hand trembles, or who slips on the

street, has been imbibing too freely; or that a man climbing into a

second story on a frequented highway and in broad daylight is a

burglar. This rule may be expressed in other words by saying that

reasons for drawing unfavorable conclusions are insufficient when in

view of the circumstances and time, place, persons, deed, etc., no

prudent person would consider the conclusions as warranted.

1738. Rules on Gravity of Matter in Rash Judgments.--(a) From the

nature of the thing ascribed to the other person, only judgments that

mortal sin has been committed are grave matter; for only mortal sin is

in itself a grave reproach.

(b) From the circumstances of persons or acts, rash judgment of mortal

sin may be only venial; for it sometimes happens that certain kinds of

serious sins are not considered very ignominious in certain persons or

conditions. Thus, in some places it is considered honorable for

soldiers or students to have wounded adversaries in duels; some persons

of a rough kind are proud of their proficiency in blasphemy or

obscenity; where drunkenness is common, it is not considered as very

disgraceful.

sin or of what is not sin at all may be mortal; for to those from whom

much is expected slighter defects may be causes of great disgrace.

Thus, it is very dishonoring to the parties concerned to think that a

prelate is an habitual liar, that a nun visits too often, that a public

official is illegitimate or stupid or afflicted with syphilis, and

therefore unworthy of his position.

1739. The Moral Species of the Sin of Rash Judgment.--(a) It is a sin

against justice, because it infringes the strict right of the neighbor

that he be not judged guilty of evil without sufficient reason, and

that he be not held worthy of contempt until he has clearly forfeited

the right to respect. It is true that judgment as here taken is an

internal act, and that it was said above that only external acts form

the subject-matter of justice; but internal acts that are referred

immediately to external acts, as concupiscence tends to lust and anger

to injury, may be classed with these external acts. Hence, internal

judgment naturally leads up to external judgment, and so it pertains to

justice, just as the desire to steal is unjust and the desire to make

restitution is just.

(b) It is a sin against charity, because it does not practise

benevolence (“Charity thinketh no evil,” I Cor., xiii. 5), and is

usually associated with ill-will or envy. He who judges rashly does not

love his neighbor as himself, for he does not observe the rule not to

do to others what he would not have done to himself.

1740. The moral species of rash judgment is not changed according to

the species of sin attributed to another (such as heresy, dishonesty,

impurity), and these circumstances of the rash judgment need not be

mentioned in confession.

1741. The Moral Species of Rash Opinion, Suspicion and Doubt.--Do the

conclusions given above on the theological species of rash judgment

apply also to rash opinion, suspicion, and doubt?

(a) Some theologians answer in the affirmative, and argue that the same

grave injury and contempt of the neighbor is found in these sins as in

rash judgment, and that Scripture makes no distinction between the one

and the other. On the contrary, they say, murmurings, detractions, and

hatreds are caused oftener by doubts, suspicions, and opinions, since

firm and certain judgments are not so often formed; and moreover there

is no one who would not prefer to be judged certainly guilty of

fornication than to be doubted or suspected of more heinous crimes,

such as incest or sodomy.

(b) Other theologians answer in the negative, and argue that suspicion

and doubt do not inflict a severe harm, since they stop short of firm

decision of the mind and so are incomplete injuries which diminish

rather than take away the esteem due to another. But the defenders of

the affirmative reply that, while opinion, suspicion and doubt are

incomplete as regards assent, they are not incomplete as regards

deliberation and consent, and so can be mortally sinful, as is seen in

the case of doubts against faith (see 840 sqq.).

doubts are from their nature mortal sins on account of the arguments

for the first opinion, but that in actual experience they are usually

venial on account of the imperfection of the act (since on account of

human frailty doubts, suspicions, or evil opinions of others can easily

arise before they are noticed), or the lightness of the matter (for

there is rarely one of these mental states without some reason that

seems to be at least approximately a justification). But it seems

likely that rash judgments themselves are seldom mortal sins, since the

conditions for mortal sin are not often realized in them.

1742. The Chief Reasons for Rash Conclusions about the Character of

Others.--(a) A first reason is that the person who draws the conclusion

is bad himself. Evil-doers are very prone to suspect others of evil,

for sin seems so delightful to them that they think others must find

the same pleasure in it: “The fool when he walketh in the way, since he

himself is a fool, esteemeth all men fools” (Eccles., x. 3).

(b) A second reason is that the wish is often father to the thought.

Thus, if one hates or envies another or is angered against him, even

trifles light as air will suffice to make one judge him guilty of sin.

Just as love blinds an infatuated lover to the sins or crimes of the

object of his affection, so does prejudice give a distorted vision that

can see nothing but evil in the object of its dislike.

experience in dealing with human nature. Thus, old men sometimes become

not merely cautious, which is reasonable, but unduly suspicious.

Similarly, those who have encountered many trials or disappointments in

life often become cynical and misanthropic, and to them the actions of

all their fellowmen appear either evil or at least spoiled by an evil

purpose.

1743. Rash Doubts.--Doubt about the probity of others is sinful, when

there are no sufficient reason for it; for example, it would be

unreasonable to suspend judgment about a man of excellent reputation

because a well-known calumniator had spoken against him. But a doubt

may be reasonable, as when a person has had a good reputation for

honesty but a reliable witness declares that he is dishonest. In such a

case should one decide for the innocence or for the guilt of the party

called into doubt, or should one suspend judgment on the matter?

(a) It is not lawful to interpret reasonable doubts in a sense

unfavorable to another person, for this would amount to rash judgment,

since the reasons are sufficient for doubt but not for decision. Hence,

it would be wrong to believe that a person of good repute was a thief,

because another person of good repute said so.

(b) It is lawful to suspend judgment in case of reasonable doubts, if

there is no obligation of deciding one way or the other, for in so

doing one does no injury either to one’s own intelligence (since the

doubt is reasonable) or to the honor of another person (since, as

supposed, there is no obligation of judging positively in his favor).

Just as there is no duty of making acts of love of our neighbor on

every occasion, neither is there a duty of deciding doubts to his

advantage on every occasion, or of having any opinion about him

whatever. Some authors do not admit this, but the common teaching is

against them.

be resolved in a favorable sense, if there is an obligation or a wish

to decide one way or the other; otherwise one would decide in an

unfavorable sense and be guilty of rash judgment. This is what is meant

by the well-known maxim that doubts about the character of a neighbor

should be settled in favor of the neighbor. Hence, if one were in

serious danger of forming a rash judgment and could not otherwise

overcome the temptation, a suspension of judgment should give place to

favorable judgment. It is true that one may be frequently in error by

thus judging well of mankind, since man is inclined to evil from his

youth (Gen., viii. 21) and the number of fools is infinite (Eccles., i.

15). But it is a less evil to fall into the speculative error of taking

a bad man for good than by adopting another course to fall into the

practical error of becoming bad oneself by violating a law of prudence,

justice and charity; and it is less harmful that many sinners should

receive more credit than they deserve, than that one just man should be

deprived of the good opinion that belongs to him. Pseudo-Ambrose (Apol.

ii, David, c. 2, n. 5) says that those who judge others rashly often

become worse by this act than the persons they judge; and St. Thomas

remarks that favorable opinions of others harm no one, whereas

unfavorable opinions are a wrong to innocent persons.

1744. The interpretation of doubts in a favorable sense does not mean

that one may not take into consideration the possibility of danger or

deception and use remedies or precautions. This course is not rash

judgment, for even when one judges that another person is good, one

knows that the judgment is possibly wrong, and therefore cannot be

entirely relied on for external guidance.

(a) It is lawful, therefore, to act as if one did have a bad opinion of

another when there is a possibility of harm that must be guarded

against. Thus, a father may forbid his children to keep company with

other children, for these latter may be corrupt; an employer may keep

his money under lock and key, because servants may be dishonest; a

traveller may carry weapons, because the inhabitants among whom he

travels may be treacherous. Even though appearances are favorable, one

may be on one’s guard, for appearances are often deceptive.

(b) It is not lawful, however, to protect oneself or others in such a

needlessly conspicuous or offensive manner as to sadden or defame the

other party against whom one takes the precautions. Thus, it would be

unjust and uncharitable to go about ostentatiously locking safes and

drawers whenever a certain person appeared, for this would be

equivalent to saying that he was a thief.

Art. 3: THE SUBJECTIVE PARTS OF JUSTICE: COMMUTATIVE AND DISTRIBUTIVE

JUSTICE

(_Summa Theologica_, II-II, qq. 61, 62.)

1745. The Three Species of Justice.--The subjective parts of a virtue

are those that partake of its essence and that are the subordinate

species into which it may be distinguished, as prudence is divided into

individual, domestic and political (see 1639). There are three species

of justice, and their division is taken from the threefold relation

that exists in a whole.

(a) Thus, legal justice directs the parts to respect the rights of the

whole, and it is exercised by all those who promote the common good of

a society by fulfilling well the duties which pertain to their position

and rank in the society.

(b) Distributive justice regulates the whole in reference to the parts,

and it is exercised by all those who seek for such a distribution of

the common things of a society as accords with the inequalities of

merit and ability of the members. Hence, distributive justice is found

not only in the heads of a state, or family, or other body, but also in

the subordinates who are content with the fair distributions made by

the heads.

is exercised by all who practise fair dealing with their equals, that

is, by states with states, families with families, societies with like

societies, individuals with individuals; or with those who act as their

equals, as when a society acting as a moral person makes a contract

with one of its members as another moral person.

1746. Resemblance between Distributive and Commutative Justice.--The

general likeness between distributive and commutative justice may be

summed up as follows:

(a) they have the same remote matter, since both alike are concerned

with external things, persons or works. Thus, things such as goods of

fortune may be distributed by the community to its members, or may be

exchanged by individuals between them; labors to be performed may be

assigned by the community or may be agreed on by private persons

through contract;

(b) they have the same general form, since both alike seek to impress

equality on the matter with which they deal, by rendering in these

things to every one his due, and by making man’s actions towards his

neighbor to follow the mean of reason and of the thing (see 1711).

1747. The Special Differences between Distributive and Commutative

Justice.--(a) They differ in their proximate matter, that is, in the

operations by which use is made of external things, persons or works;

for while distributive justice acts through distribution (or division),

appointment, or assignment among many, commutative justice acts through

exchange, or transfer from one to another between two persons.

(b) They differ in their special form; for distributive justice seeks

equality and the golden mean, according to proportion, while

commutative justice seeks the same according to quantity (see 1712).

Distributive justice does not treat parties as equals, but gives to

each one according to his personal worth--to the more deserving the

superior positions and high salaries, to the less deserving the

inferior positions and lower salaries. Commutative justice, on the

other hand, treats the parties as equal, and decrees that debts must be

paid and injuries repaired, even though payment or reparation must be

made by a good man to a bad man, and that the recompense must equal the

difference created between the parties by the debt or the injury.

1748. Commutations of Commutative Justice.--There are various kinds of

commutations or exchanges used by commutative justice, but they do not

create new species of justice, since they are only accidental modes of

the act of giving the equivalent of what one receives. They are

classified as follows:

(a) involuntary commutations, which are those in which reparation is

made for the use against the will of another of the things, persons, or

works that pertain to him. Thus, the property of another is used

unlawfully by secret theft and by open robbery; the person of another

is injured by murder and wounds; the honor of another by secret calumny

and detraction, by open false testimony and contumely; the rights of

another to persons are used unlawfully by adultery with his wife, by

seduction of his servant, and the like;

(b) voluntary commutations, which are those in which compensation is

made for a benefit that one derived with the owner’s consent from

something that was his, or in which one gives or returns to another

what is his. They include the various forms of contracts, or agreements

between two parties in which the consent of both to the same proposal

is externally manifested and obligation is produced to abide by the

terms of agreement.

1749. Forms of Contract.--The chief forms of contract are the following:

(a) gratuitous contracts, which are those that confer advantage on only

one of the contractants, or those in which no payment or compensation

for his acts or goods is made to one party by the other party. They

include unilateral contracts, which produce obligation on one side only

(e.g., a promise, gift, testament), and bilateral contracts, which

produce obligation on both sides. The bilateral contracts are also

known as bailments, or understandings whereby a thing or business is

transferred from one person to another in trust, on condition that a

return will be made to the owner, They include the following contracts:

loans, in which return must be made of the identical things borrowed

(_commodatum_), or of a thing similar in kind (_mutuum_); deposit, in

which a thing must be returned after safekeeping (_depositum_); an

agency, in which one conducts the business of another with the

obligation of making returns, either from express contract (_mandatum_)

or from imputed agreement (_negotiorum gestio_). In _commodatum_ and

_mutuum_ the advantage is had by the bailee, in the other three by the

bailor;

(b) onerous contracts of certain event, which are those that confer an

advantage on both parties, and in which the thing agreed on is certain

and definite. They include contracts in which one party transfers

ownership to the other (e.g., buying and selling, barter, loan at

interest, contracts for annuities, stocks and bonds) or useful dominion

(e.g., lease of property, contractor’s agreement, hire of labor), and

contracts in which both parties transfer rights to a moral person of

which they are the members (partnership);

advantage on both parties, but in which the thing agreed on is

contingent and uncertain. Examples are insurance, wager, gaming

contracts, lottery, and stock market speculation;

(d) subsidiary contracts, which are those that are made in order to

give security to principal contracts to which they are annexed or for

whose sake they are made. Such are guaranty and surety, pledge and

pawn, and mortgage.

1750. The Equality Sought by Commutative Justice.--The equality in

quantity sought by commutative justice means that in involuntary

transactions the offender must suffer a punishment equal to the injury

he offered or must pay a recompense equal to the damage he caused, and

that in voluntary transactions one must give the equal of what one

receives. But this can be understood in two ways.

(a) Thus, equality may be taken for identity in species, in the sense

that the same kind of thing must be taken or returned (e.g., a life for

a life, an eye for an eye, a tooth for a tooth). This kind of equality

will do in some instances, as in cases of exchange of goods, but as a

rule it would not be fair to both parties. Thus, if a subject strikes a

ruler, he is not sufficiently punished if he receives the same kind of

blow, for the injury to the ruler is greater on account of his office;

when a man steals a cow or a sheep, he is not sufficiently punished if

he restores what he took, for he would suffer no loss and the community

whose peace he had offended would go without satisfaction (Exod., xxii.

1); if one gives one’s cow for another’s cow, or if a shoemaker trades

his products for the clothes made by a tailor, the exchange may be

unfair, since the thing given on one side may be better than that given

on the other side.

(b) Equality may be understood as identity in value, in the sense that

the thing taken or returned has the same quantity of goodness or

excellence as the thing received, no matter how they differ in species.

This kind of equality must be observed as a rule both in involuntary

and voluntary transactions. Thus, for injury done to merchandise

payment is made in money, or vice versa. If equality in value is not

possible, because the good for which one owes is on a higher plane than

the good which one is able to give, it seems that justice requires one

to approximate equality as far as possible, and hence mayhem or

defamation should be compensated for by the goods of fortune (see 1802

and 2090).

1751. Restitution.--Justice not only commands that one pay or give back

what is due in voluntary transactions, but also that one repair injury

which one has caused in involuntary transactions. But the four acts of

payment, restoration, satisfaction, and restitution must not be

confused.

(a) Thus, payment is the lawful bestowal by one person on another

person of something of value in return for some other thing of value.

It is clear that payment differs from satisfaction and restitution,

since it supposes no act of injustice done.

(b) Restoration is the return to another of his property of which one

had just possession, as when a borrower gives back to the lender, or a

depositee to the depositor. This also differs from satisfaction and

restitution, since it is a voluntary transaction (see 1792, 1796).

1752. Differences between Satisfaction and Restitution.--(a) They

differ as to their principle or cause, since satisfaction is due for

injury to honor, restitution for injury to goods by unjust detention or

unjust damage. Hence, a person who has dishonored another (e.g., by

disrespect) is bound to satisfaction; a person who has injured another

(e.g., by destroying his goods) is bound to restitution; a person who

has both injured and dishonored another (e.g., by adding insults to

robbery) is bound to restitution and satisfaction.

(b) Satisfaction and restitution differ as to their term or object,

since satisfaction is chiefly concerned with the person to whom amends

must be made (as by apology), while restitution is chiefly concerned

with the thing which must be given back in itself or in its equivalent.

1753. When Restitution Is Due.--Restitution is the act by which one

places another in renewed possession or ownership or chance of

ownership of that which is owed to him because it is his by reason of a

strict right _in re_ or _ad rem_; in other words, it restores the

equality that existed before an injury was done to the goods of another.

(a) Thus, restitution is not due for violation of virtues other than

justice, because these virtues are not concerned with strict

obligations and rights. Repentance and satisfaction are due for all

sins, but they are not the same thing as restitution. Hence, one is not

bound to restitution if one refused to help with alms a person in

extreme need, or if, not being obliged to it by office, one neglected

to extinguish a fire or to prevent a robbery. These are sins against

charity, not against justice.

(b) Restitution is not due for violations of virtues that pertain to

justice but do not confer strict rights, and hence it is only a

violation of commutative justice that entails the obligation of

restitution. Thus, if one has been surly or ungrateful, no legal right

has been violated and no restitution is due.

1754. Does Distributive Injustice Oblige to Restitution?--(a) If only

distributive injustice is committed (e. g., if a parent gives his

children all necessaries but shows special favor to those that are less

deserving), there is no duty of restitution, for there is no strict

claim to special favors. (b) If commutative injustice accompanies the

distributive injustice (e.g., if a ruler acts against his agreement to

give the best position to the person who passes the best examination),

there is a duty of restitution, for there is a strict claim to rights

under contract.

1755. Distributive Justice and the Violation of Strict

Rights.--Injustice in distribution is frequently accompanied by

injustice in transaction on account of some strict right violated, and

hence by reason of the latter injustice there will be a duty of

restitution (see 1708, 1808).

(a) Thus, distributive injustice is accompanied by violation of a

strict right of society when an unfair distribution is contrary to

agreement made with the community (e.g., when one is appointed or paid

especially to make fair distributions, or the law or contract expressly

imposes this obligation), or when it causes harm to the community which

one is bound _ex officio_ to prevent (e.g., when one appoints as public

physician or surgeon a person who is entirely unfitted for the post).

(b) Distributive injustice is accompanied by violation of a strict

right of an individual when it is against contract (e.g., when a person

undertakes to select the best statue or portrait presented in a

contest, but chooses one that is inferior), or when it inflicts loss on

a private person (e.g., when a tax assessor requires more than is due

from some persons, or an examiner admits to a school which receives

only a limited number an unworthy candidate and thus excludes a worthy

one, or a board rejects a worthy candidate as unworthy).

1756. Commutative Justice and Unfair Awards of Prizes.--Unfair awards

of prizes in competitions are not violations of commutative justice

unless the following conditions are present:

(a) the promise of award must be given as a contract binding in

justice, for if the promisor intends only to bind himself in fidelity,

the promisee obtains no strict right. Hence, an unfair distribution is

not against commutative justice if a competition has not the character

of a real contest or of an onerous compact to reward the person who

surpasses his rivals, but is rather an opportunity to compete for the

free bounty of the promisor (e.g., if the organizer of an entertainment

offers a prize for the prettiest baby), or an encouragement to useful

industry (e.g., a first prize for the best garden in a neighborhood).

On the contrary, if the promise is part of an onerous contract, the

promisor is bound in justice and the promisee obtains a strict right.

This is the case when the competition has the character of a real

contest, in which the contestants must undergo special labor,

preparation, expense or trouble, etc., in order that the award be given

to the most meritorious;

(b) the thing promised as subject of award must be the prize, and not

merely a claim or right to be considered for the prize. Hence, if an

examination is held in order that a number of worthy persons may be

listed for future vacancies in offices or dignities, the person who

passes as most worthy has no strict right to be given an office or

dignity, but only to be considered for it.

1757. Has a person who passes as most worthy in an examination held in

order to fill a vacant post a strict right to receive the post?

(a) According to the common opinion he has a strict right, because

there is at least an implicit contract to the effect that the position

will be given to the most worthy, since the examination is competitive.

(b) According to some authorities he has no strict right, because

public positions are not to be regarded as rewards of merit, and the

examination is not part of a contract but is only a means used by a

superior to assist him in acting according to distributive justice.

Nevertheless, even in this opinion an unjust award is a sin, and at

times a grave sin, against distributive justice, and may accidentally

be joined with commutative injustice (see 1755).

the appointing official is bound by law to observe the rules of the

civil service commission. The usual procedure is for the commission to

submit the names of the three persons highest on the examination list.

Position on the list is determined by competitive examination plus

preferential points for veterans, experience in jobs, etc. (On the

whole the preferential system does not seem to involve any injustice to

those who do not receive the preference.) One of the three must be

chosen for the first vacancy; for the second vacancy the remaining two,

together with the next highest eligible, are proposed. Grave injustice

against distributive justice would be done in not proceeding according

to the legal method, and some degree of injustice might be done to an

eligible who is illegally removed from a list, passed over, etc. Of the

three highest eligibles no one has a strict right to the vacant post,

but solely the right to be seriously considered.

1758. What should be said of a superior who would promote undeserving

persons to ecclesiastical benefices?

(a) As regards guilt, it is a mortal sin to confer a benefice on one

who is unworthy, or even (when there is question of a benefice to which

the care of souls is attached) on one who is less worthy (see Canon

459, Sec. 1).

(b) As regards restitution, there is an obligation of reparation to the

community, when it is made to suffer loss, and of compensation to an

individual who is passed over in spite of his strict right (see three

preceding paragraphs).

1759. The Obligation of Restitution.--(a) The obligation is both of

natural and divine law. Reason itself dictates that everyone should

receive his due, and revelation expressly commands restitution, as when

it declares that he who has injured his neighbor’s field or vineyard

must restore according to the damage done (Exod., xxii. 5).

(b) The obligation is both of means and of precept, for without

restitution the offender does not obtain pardon from God (Ezech.,

xxxiii. 13 sqq,; Tob., ii. 20 sqq.). Hence, one who has seriously

injured his neighbor cannot be saved unless he actually makes

restitution, if he is able, or intends to make restitution when

possible, if here and now he is not able to do so. A debtor who makes

no effort to make restitution (e.g., one who refuses to deny himself

luxuries, to curtail his expenses, to leave restitution money in his

will), cannot be said to have a sincere intention of fulfilling his

duty. But it is not true that a person who dies in venial sin on

account of restitution neglected must remain in Purgatory till all the

restitution is made; for this would make the punishment depend on the

negligence of the heirs or on accident.

the fault were both grave, for restitution is an obligation of strict

justice (see 1753); the obligation is light if both the damage and the

fault were light, for the injury then is light.

1760. Duties of Confessors about the Obligation of Restitution.--(a) As

to confession, the penitent is obliged to mention the number of sins

committed against the duty of restitution, if there have been many acts

of intention not to pay (see 202 sqq.); but as a rule those who have

for a long time continued in sinful neglect of the duty of restitution

have committed only one sin thereby, or else they do not apprehend

their duty of mentioning the distinct internal acts, and hence

confessors are advised not to question overmuch about this.

(b) As to absolution, the penitent lacks true contrition if he is under

a serious obligation to make restitution and is wilfully opposed to the

performance of this duty at all or at the proper time. Such a one may

not be absolved. But the confessor should not admonish a penitent of

the duty of restitution, if the penitent is in good faith and the

admonition would only do harm. If the obligation of restitution is only

light, absolution may not be refused, and prudence will often advise

that no admonition about the obligation be given.

1761. There are a number of situations possible when damage done is

grave and culpability slight.

(a) Thus, the damage may be entirely involuntary, as when the offender

could not foresee it and did not wish it (e.g., Sempronius commits a

venial sin by speaking harshly to Claudius, whom he likes, but the

latter is so depressed at this that he commits suicide). In this case

there is clearly no obligation of restitution.

(b) The damage may be voluntary only interpretatively, as when the

offender could not foresee it, but would have willed it had he foreseen

it (e.g., Sempronius is glad when he learns that Claudius committed

suicide, but would be much surprised if he knew that a harsh word of

his caused it). In this case according to some there is a grave duty of

restitution, because internal guilt and external damage are present;

but others, with greater probability, deny the duty of restitution, for

the damage was not caused by the internal sin of hate, which is not

effective of itself, nor by the external harsh word, which was an

occasion rather than a cause (see 1447, 1763).

in itself (e.g., Titus steals a considerable sum from Balbus, but he is

invincibly ignorant and thinks that the wealth of Balbus makes the sin

only venial), or the damage done is voluntary indirectly (e.g., Caius

is guilty of slight carelessness in guarding his cattle, and they get

into a neighbor’s garden and cause great damage to crops; Caius foresaw

some damage, but he could not have foreseen the actual grave damage

that was done). About these cases there are various opinions, which

will be given in 1765.

1762. The Roots of Restitution.--The roots or sources of restitution

are usually reduced to two, according to the following two general

kinds of injury inflicted on others:

(a) unjust damage, which is the loss inflicted, on the goods of

another, without advantage to the offender, as in murder or

incendiarism;

(b) unjust possession, which is the loss inflicted on another by the

possession of his goods without his consent or against his will, to the

advantage of the offender, as when a murderer steals from his victim,

or an incendiary gets the insurance from the house he destroyed.

1763. Unjust damage that obliges to restitution is only an act (or

omission) that is both injurious (being a guilty violation of another’s

strict right) and productive of loss. Hence the following conditions:

(a) the act must be objectively unjust, a contravention of a strict

right _in re_ or _ad rem_ (see 1695 sqq.), for example, stealing or

keeping back the wages due an employee. But it is objectively unjust to

deprive another of a non-strict right (e.g., the right of a beggar to

an alms) by unjust means, such as force, fraud, calumny, etc. If a

neighbor is not hindered from his strict right and unfair means are not

employed, there is no objective injustice (e.g., when a merchant

improves his place of business and thus draws away customers from a

rival merchant);

(b) the act must be efficaciously unjust or the true cause of the loss

which another suffers, for one is not responsible for what does not

proceed from one’s act. An act is not efficaciously unjust, therefore,

if it is only the occasion of damage (e.g., Titus steals and Balbus

imitates him; Claudius steals, and on account of circumstantial

evidence not arranged by Claudius, Sempronius is arrested and sentenced

to prison), or if it is only a _conditio sine qua non_ (e.g., Caius

gives whisky to Julius, who needs its stimulation to nerve himself for

a crime), or if it is only an accidental cause (e.g., Titus steals a

small sum of money from a miser, and the latter, to the great surprise

of Titus, becomes insane);

imputable; for one is not bound to satisfy for acts that are inculpable

or not imputable (see 97 sqq.). There must be either theological

culpability, that is, the intention to harm another, which is sinful

before God (e.g., he who purposely sets fire to his neighbor’s barn),

or juridical culpability, that is, carelessness which causes injury to

the legal right of another (e.g., he who lights a fire near his

neighbor’s buildings and by his absent-mindedness permits the buildings

to catch fire).

1764. Some Causes That Remove or Diminish Theological Culpability.--(a)

Mental derangement or passion (e.g., great fear or anger) may make an

injurious act unintentional and so take away natural liability for

restitution (see 40 sqq.), but the civil law does not always admit the

excuse, and after sentence the offender is bound to pay.

(b) According to some authorities, error about the extent of the harm

that is being done, if invincible, excuses from restitution for damage

that was not apprehended, as when a thief throws a gem into the ocean,

thinking that it is only an imitation gem. But the offender would be

held for the entire loss, if sentenced.

(e) Error about the person injured, even though invincible, probably

does not excuse from restitution, if the intention was to harm a class

(e.g., Sempronius intends to kill Balbus, because the latter is a

policeman, but by accident he kills another policeman) or an individual

(e.g., Caius intends to kill Titus and by mistake kills Claudius, the

twin-brother of Titus).

(d) Error about the thing injured, even though invincible, probably

does not excuse from restitution, if the intention was to do damage

(e.g., Julius puts poison in a plate in order to kill his neighbor’s

dog, but the cat takes the poison and is killed).

1765. Restitution for Damages That Are Only Venially Sinful but

Seriously Harmful.--(a) When one injurious act is committed (as when

through slight carelessness one sets fire to one’s neighbor’s chicken

coop), some deny, but others affirm, the duty of restitution, while

still others distinguish according to the full or only partial

advertence to the sinfulness of what is done. Of those who hold for

restitution, some think that all the damage should be repaired, since

all was caused; but others think that it suffices to repair part, since

the culpability was limited.

(b) If several injurious acts, which taken singly are slight but taken

together are serious, were done to the same person (e.g., a waiter

breaking dishes at various times while working for the same

proprietor), restitution is due as soon as the sinner realizes the

amount of harm he has caused; but it is disputed whether the obligation

is grave or light. If the injuries were done to different persons

(e.g., a boy breaking windows in many houses in the neighborhood),

there is more probably only a light obligation.

1766. Restitution on Account of Law for Damages That Are Only

Juridically Culpable.--(a) Before sentence of court there is no

obligation of restitution, for it would be too heavy a burden to impose

this in view of the absentmindedness of so many persons and the

numerous distractions one encounters.

(b) After sentence of court there is an obligation of restitution, for

the law which gives the court a right to impose it is reasonable, since

juridical fault is often accompanied by theological fault, and moreover

men will thus be led to a greater prudence in the care of their own

goods and in respect for those of others.

1767. Restitution on Account of Contract for Damages That Are Only

Juridically Culpable.--(a) Express contract obliges to restitution even

for light fault (i.e., the omission of precautions taken by the more

prudent), or most light fault (i.e., the omission of precautions taken

by the most prudent only), or, if so stipulated, for no fault at all.

(b) Implied contract perhaps also obliges to restitution for juridical

fault, for it seems that equity requires one to make good the losses

caused by the absence of a care which the contract took for granted.

Thus, if the advantage is with the bailor alone (e.g., gratuitous

deposit), ordinary care is expected and the bailee is not held in

danger to prefer the bailor’s goods to his own; if the advantage is

with both parties (e.g., onerous deposit or loan), it seems that more

than ordinary care is demanded and that usually the obligor may give

preference to his own goods.

1768. Restitution for Careless Discharge of Fiduciary Duties, as in the

Case of Physicians, Lawyers, Spiritual Advisers.--(a) If there was

theological fault, restitution is due, unless the injured party took

the risk upon himself. (b) If there was only juridical fault, it seems

there is no natural duty of restitution, since no injustice was done;

but a court may oblige to damages.

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 restitution.

(b) When one has culpably done or omitted something from which damage

to another was foreseen, but has tried, though in vain, to prevent the

damage after the cause was placed, restitution is due if the cause was

physical (e.g., Claudius gave poison to Titus, and then moved by

remorse gave an antidote, but Titus died), since the party who set the

cause in operation is responsible; but if the cause was moral (e.g.,

Balbus ordered a gunman to beat up Caius, but withdrew the order, and

the gunman on his own responsibility then assaulted Caius), restitution

is not due when the revocation ends one’s influence upon the damage

that ensues.

1770. Three Kinds of Unlawful Possessors.--The second root of

restitution mentioned above (1762) is unjust possession, which includes

the acceptance or the retention of another person’s goods against the

latter’s will. There are three kinds of unlawful possessors:

(a) the possessor in good faith, who is one that has been invincibly

ignorant of the unlawfulness of his possession, but now learns his

error (e.g., a buyer who discovers that the horse he purchased did not

belong to the seller but was stolen property);

(b) the possessor in doubtful faith, who is one that has serious

reasons for fearing his possession is unlawful (e.g., the buyer of a

horse learns that the seller is known to have sold some stolen

property, or that the price he charged for the horse was remarkably

small);

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 restitution according as he has been enriched or not by the

property; for one person should not be enriched at the expense of

another, but property perishes to its owner.

possessor transferred it, he is generally obliged or not to restitution

to the third party, on the latter’s dispossession, according as he has

been enriched or not by the third party’s goods; for if he received

nothing for the goods, he is clearly bound to nothing, but if he

received payment, he must indemnify the buyer who is evicted for lack

of title.

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).

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 restitution of it has become

impossible, he must compensate the owner, even though he has not been

enriched, unless the goods would have perished equally with the owner;

for he is then the efficacious cause of the loss. The same principle

may be applied to damages through deterioration. The civil law often

holds the thief responsible, no matter how the goods perished in his

hands.

bad faith from the possessor in bad faith, the seller is not bound to

restitution to his purchaser on the purchaser’s eviction, unless there

was agreement to that effect; for he who buys, knowing that there is no

good title, buys at his own risk.

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 restitution for the profits lost and the losses

suffered by the owner through the unjust deprivation of his property,

for these are damages of which the possessor was the unjust and

efficacious cause.

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 title (e.g., by violence), he has the

obligations of one in bad faith, for presumption favors the former

possessor.

(b) If the property came to him by legal title (e.g., by gift or sale),

but from a former possessor of doubtful or suspected faith (e.g., one

who seemed to have the property through theft), he must attempt to

settle the doubt. Should the doubt nevertheless continue, some think he

should divide it with another probable claimant, but others believe he

may retain all.

(e) If the property came to him by legal title and from a former

possessor in good faith, he must attempt to settle the doubt; but if

the doubt remains in spite of his inquiries, he may retain the property

in good faith, as long as matters continue in the same state.

1778. Cooperators and Restitution.--Restitution is owed for cooperation

in injustice when the cooperator becomes at least partially an unjust

and efficacious cause of damage to another. It should be noted that

this cooperation 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 cooperates 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 cooperates, but whose assistance is not necessary, is bound

to restitution as a cooperator, since he is an unjust and efficacious

cause of damage. Thus, if Caius steals for Sempronius, knowing that,

should he refuse, Mercurius would carry out the orders of Sempronius,

the readiness to steal on the part of Mercurius does not excuse Caius

or make his act any less harmful.

1779. Positive cooperators in injury are bound to restitution when

their act is the unjust and efficacious cause of the damage. The

principal cases of positive cooperation 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 principal 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 restitution 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);

blame, ridicule or other such indirect means leads another to commit

injustice against a third party. The implicit advisor is bound to

restitution 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

restitution for evil already done. He is bound to restitution 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 restitution for

damages that depend on his conduct;

(f) a partaker in injustice is one who gives assistance 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 cooperator in unjust damage, he must indemnify the

injured party; if he is a cooperator in unjust retention of property,

he must give back to the owner the stolen goods received by him (1774).

1780. Negative cooperators are those who by their silence or inaction

permit an injury to be done or to go unrepaired. They are bound to

restitution for the damages caused by them; but it seems that _per se_

at least they are not bound to restitution 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 restitution.

1781. The Circumstances of Restitution.--By the circumstances of

restitution 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

restitution.

1782. The persons bound to make restitution are all those who singly or

cooperatively 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

cooperators; they are unequal when one is a principal 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 principal causes, or equal but indispensable cooperators, or

conspirators; and perhaps also if they are sufficient causes (e.g.,

Caius and Sempronius 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

cooperators are considered as partial causes of the injury.

1783. Cooperators in damage are bound to restitution either _in

solidum_ or _pro rata_.

(a) Thus, they are bound _in solidum_ (i.e., jointly and severally) for

all the loss when they are total causes of the damage, But the

principal cause is bound absolutely, the secondary or equal cause only

conditionally, that is, the principal must pay all the restitution

himself, the others must pay all only when the principal or other

associates fail to do their duty.

(b) They are bound _pro rata_ (i.e., each one according to his share)

when they are only partial causes of the damage. The obligation of

restitution _in solidum_ should not be imposed, if it is uncertain, or

if the cooperator is in good faith and the admonition would only

produce harm.

1784. The order of restitution among cooperators in injury is according

to the priority of the obligation of one to that of another, in the

sense that one is obliged to pay all and the other is obliged only in

the former’s default. This order of priority in obligation is in force

when many cooperators are bound _in solidum_ and when they cooperated

in different ways (e.g., one as possessor, another as advisor, another

as performer, etc.). The order generally given by moralists is as

follows:

(a) the possessor is bound first of all, since he has the goods of

another and the goods call for their owner;

(b) the cooperators are bound next in the following order: the

originator (such as a perpetrator acting in his own name, or a

mandator); the perpetrator acting in the name of another; the others

who aided the commission of the act (such as advisors, flatterers,

etc.); those who did not prevent or resist injustice.

1785. The obligations of cooperators when restitution in full is made

by one of their number, or when condonation of debt is made to one of

their number, are as follows: (a) if restitution was due _pro rata_,

the other cooperators must indemnify their associate who paid all, or

must pay their shares to the injured party who gave condonation only to

one of their group;

(b) if restitution was due _in solidum_, payment by or condonation to a

principal cause frees the secondary causes; but payment by or

condonation to a secondary cause does not exempt a principal cause, and

the latter is still held either to the secondary cause or to the

injured party, as the case may be; payment by or condonation to an

equal cause does not exempt the other equal causes.

1786. The person to whom restitution must be made is the person whose

strict right has been violated, or, in his absence, it is society. But

the following cases should be distinguished:

(a) when the injured person is known for certain and his right is

certain, restitution should be made to the injured person or his

representatives or successors, or, if this is not possible, to

charitable or pious causes;

(b) when the injured person is entirely unknown, if the one who is the

cause of the loss is in good faith, his obligations are those of a

possessor in good faith; but if he is in bad faith, the common opinion

is that he is bound, at least from customary law, to make restitution

by giving to the poor or to religion;

cause of the loss should make restitution to the best of his ability.

If the doubt extends to only a few persons (say four or five), any one

of whom may be the injured person, restitution should be divided in the

best way possible among these persons; if the doubt extends to many,

but the injured persons were only a few, it seems that restitution may

be made by giving to charity or religion either in the place of the

injury or elsewhere; if the doubt extends to many, and the injured

persons were many inhabitants of the locality, restitution must be made

if possible to the injured parties themselves, otherwise to some public

cause of the local community.

1787. Order of Preference Among Creditors.--The natural order of

preference is to be shown to creditors when the debtor is unable to pay

them all.

(a) Those who have a right _in re_ (e.g., those whose property is held

by the debtor) have precedence over those who have only a right _ad

rem_ (e.g., those who are creditors from contract).

(b) Creditors from onerous contract or delinquency, it is generally

admitted, have priority over creditors from gratuitous contract.

according to what seems to be the common opinion, are equal in rights

and should be settled with _pro rata_.

(d) Debts that are certain have priority over debts that are uncertain,

according to some; others deny this, but admit that the uncertain debts

need be paid only in proportion to their probability.

(e) Creditors who are certain are by some preferred to creditors who

are uncertain; but others think that payment to the poor, in place of

the unknown creditor, is the latter’s presumed will, and that it has an

equal standing with debts owed to known creditors.

(f) Poor creditors have no just claim to preference over rich

creditors; but charity dictates that, when the poor creditor is in

distress, he should be given the preference.

(g) Earlier creditors have a preference over later creditors in a real

claim, but it is disputed whether this holds also in a personal claim.

(h) The creditor who asks for a settlement sooner has a preference, if

the petition is made juridically, and perhaps also if it is made

privately.

1788. The order of preference among creditors according to civil law is

generally as follows: (a) proprietary creditors (i.e., those whose

property is held by the debtor); (b) privileged creditors (i.e., those

whose debts have a special urgency, such as judicial expenses, doctors’

bills, wages for hired help, living costs, etc.); (c) hypothecatory

creditors (i.e., those who have claims against the property of the

debtor, in the form of liens, mortgages, etc.); (d) common creditors

(i.e., all those who are paid after the previous creditors have been

satisfied). American law contains provisions in regard to dispositions

of property made during the four months before bankruptcy is tiled, so

as to protect the creditors of a person who is insolvent. The property

of a bankrupt is placed in the hands of an assignee and allowance is

made for the debtor’s needs and perfected liens (i.e., charges legally

made upon property for debt). The property is then subject to levy by

the creditors as follows: maintenance expenses, legal fees, costs of

administration, wages of workmen, taxes, debts having priority under

Federal or State law.

1789. The “Thing” to Be Restored.--(a) In case of unjust possession,

the identical object must be restored, if it has an individual value;

otherwise it may be restored in its equivalent. (b) In case of

contract, the identical object must be restored, if that is the

agreement (e.g., in loan of a chattel, or deposit), otherwise it may be

restored in its equivalent (e.g., in loan of money).

1790. The “Amount” of Restitution in Certain Cases.--(a) When an Object

Had Various Values During the Time of Its Possession in Bad Faith.--If

the change was from an internal cause and was for the better (e.g., the

calf stolen by a thief has become a cow), the return must be made in

the improved state; if the change was from an internal cause, and was

for the worse but would have happened in any case (e.g., the cow taken

by the thief has become old), return must be made in the actual state;

if the change was from an internal cause and for the worse, which would

not have happened had the object remained with the owner (e.g., a cow

taken by a thief has become lame on account of the thief’s

carelessness), return must be made also for the deterioration. If the

change was from an external cause (e.g., the wine taken by a thief has

risen and declined in value several times), it seems that practically

nothing more can be imposed by way of restitution than the value the

object had when taken.

(b) When Unjust Damage has been Done.--If the damage was caused

positively, the injured person must be indemnified entirely, if the

damage was caused negatively, the injured party should be indemnified

more or less according to the reasonable expectation he had of the gain

of which he was deprived.

1791. The “Manner” of Making Restitution.--The general rule is that it

should be made in such a way that the injury will be repaired and the

injured person indemnified for his loss. Generally speaking, there is

freedom of choice as to various forms in the modes of restitution.

Thus, it may be made publicly or secretly, directly or through an

intermediary, positively (by payment) or negatively (by cancellation of

a debt). It may even be made without the knowledge and intention of the

parties. (a) Thus, the injured party may be compensated, even though he

is unaware that he was cheated or that he is being paid back; (b) the

offender may restore, even though he does not know he is doing so

(e.g., if he pays while intoxicated), and probably even though he has

no express intention of doing so (e.g., if he makes a present of $10,

and then remembers that he owed damages to the amount of $10).

1792. Second Restitution.--Natural law must be applied to certain cases

in which restitution sent through an intermediary perishes on the way

through no fault of the debtor. (a) If the debt is owed on account of

possession in good faith, the debtor is not bound to a second

restitution. (b) If the debt is owed on account of contract, the goods

perish to the owner. Thus, if the contract was one of loan, the loss

must be borne by the lender; if it was one of sale, by the seller. (e)

If the debt is owed on account of delinquency, there is an obligation

to a second restitution, unless the injured party assumed the risk of

transmission. It is held as probable that the choice of the confessor

as intermediary for restitution has the consent of the injured party,

and hence that, if the restitution perishes on the way through chance

or the fault of a third party, there is no duty of second restitution.

1793. The “Time” When Restitution Must Be Made.--(a) Internal

restitution, or the purpose of restoring, must be made at once, that

is, as soon as one adverts to the necessity of this resolve. (b)

External restitution, or the fulfillment of the resolution, must be

made at the first suitable opportunity.

1794. Unjust Refusal to Make Restitution or Pay Bills.--(a) Those who

unjustly refuse to make restitution or to pay their bills at the proper

time are guilty of mortal or venial sin according to the damage their

refusal causes to the creditor. (b) They are not worthy of absolution

if there is serious bad faith on their part, as when they have many

times broken their promises, or when they refuse to pay even the part

or installment which is within their power. (c) They are bound to

additional damages for the losses caused by the unjustifiable delay.

1795. The “Place” Where Restitution Must Be Made.--(a) He who is a

debtor on account of injury must make restitution at the place where

the thing would be were it not for the injury. (b) He who is a debtor

on account of possession in good faith should notify the owner where

the property is, but he is not obliged to bring it to the owner. (c) He

who is a debtor on account of contract must abide by the agreement, or

by the statutes that regulate the contract. Thus, in this country the

place of delivery in sales is according to law the seller’s place of

business or his residence.

1796. Burden of Expense or Loss When Restitution Is Sent to the Place

of the Creditor.--(a) If the obligation of restitution arises from

injury, the debtor is generally bound to pay the transportation and to

stand the loss when the goods perish in transit. (b) If the obligation

arises from contract, the expenses and losses must be borne according

to the agreement.

If nothing was stipulated, it seems equitable that the expenses of

transportation be borne by the party who benefits or who requested the

contract. According to the Sales Act in the United States, the seller

is the loser when goods perish in transit, if a place of delivery had

been agreed on; but the buyer is the loser when in pursuance of the

contract the goods had been delivered to a carrier for transmission to

the buyer (see 1888 d).

1797. The Causes That Excuse Temporarily from Restitution.--These

causes can be reduced to two, namely, physical and moral impossibility.

(a) Physical impossibility exists when the debtor has not the means to

pay and cannot secure them; and it excuses as long as it continues. One

who is bankrupt is excused from restitution during the continuance of

his insolvency; if he later becomes able to pay, it seems to some that

the civil declaration of bankruptcy according to the law of the country

releases him from further payment, unless his bankruptcy was fraudulent

or due to culpable neglect. (b) Moral impossibility exists when the

debtor has the means, but cannot pay immediately without incurring a

loss of a higher order (e.g., if he pays the small sum of money, he

will lose his own excellent reputation), or without suffering a greater

loss in his own goods of the same order (e.g., if he pays the money, he

will be reduced to starvation), or without surely bringing on a far

greater evil than delay of restitution to the creditor or a third party

(e.g., if a stolen weapon is returned to its owner, he will commit

suicide or murder).

1798. The Causes That Excuse Permanently from Restitution.--These

causes can also be reduced to two general ones, namely, the cessation

of the object and the termination of the obligation through the act of

the creditor, or of the debtor, or of authority.

(a) Thus, the cessation of the object releases from the duty of

restitution whenever the object perishes to its owner, as when it is

lost by a possessor in good faith who has not been enriched by it, or

even by a possessor in bad faith, if it would have been lost equally by

the owner (see 1771, 1774).

(b) The termination of obligation through the act of the creditor

occurs when the creditor freely and lawfully excused the debtor from

payment. In some cases condonation may ordinarily be presumed, either

on account of the affection of the creditor for the debtor (e.g., in

case of debts owed by children to their parents) or on account of the

familiar relationship between the parties and the smallness of the debt

(e.g., in case of appropriation by servants or employees of some

unimportant articles not kept under lock and key), or on account of the

indigence of the debtor and the smallness of the damage (e.g., in case

of trifling harm to goods of a wealthy person, if there was no great

malice and the debtor is very poor).

payment, which in certain cases is made by payment of the creditor’s

creditor, or the cancellation of an equal debt owed the debtor by the

creditor, and perhaps also by a gift made the creditor by the debtor

and equal in value to the debt. Occult compensation by the creditor is

the secret taking by him of what he is entitled to when the debtor will

not give it of his own accord. This is lawful when the debt is certain,

other means of recovery impossible, and the compensation not injurious;

but it covers restitution, and hence the creditor cannot accept another

payment from the debtor.

(d) The termination of obligation is also effected by the act of

competent authority. Thus, judicial declaration frees from the duty of

restitution a person who has lawfully and in good faith received

certain goods as damages or award; prescription (see 1875) gives a

clear title to property held by adverse possession over a certain

number of years, and it frees from the duty of payment, at least in

certain cases (though not in the United States); papal composition for

good reasons exempts from their obligation those who owe restitution to

pious causes or to church property injured by them.

1799. Condonation of the domestic thefts of wives and children of the

family cannot be presumed in all cases (see 1903).

(a) Thus, if the things stolen are articles of food and drink (or

tobacco), and were consumed by the members of the family, there is no

duty of restitution, since the father or husband is then unwilling, not

so much that these things should be taken, as that they should be taken

furtively.

(b) If the things taken do not fall under the class of eatables and are

still in the possession of the thief, they should be restored. Hence,

if a son steals money from his father in order to have the means for

debauchery, he must give back that money.

have been consumed or alienated, it will depend on circumstances

whether restitution is obligatory or not. Thus, if the father thinks

much of the son who took the money and the family does not miss it

much, condonation may perhaps be taken for granted; but if the son is

not on good terms with his father, or if the theft is very harmful to

the family, restitution may be due.

1800. Excuse from Restitution on Account of Doubtfulness of

Obligation.--(a) One who doubts positively and in good faith whether or

not he did damage to another is excused from restitution if the doubt

is about the fact of the damage (e.g., whether his competitor lost

business) or about his own culpability (e.g., whether he circulated a

calumny about his competitor); he is probably held to restitution _pro

rata_ of the doubt, if the doubt is about the responsibility of his

culpable act for the damage that followed (e.g., whether his calumny or

the poorness of the competitor’s wares caused the falling off in

business); he is probably held to only his share, if the doubt is

whether his culpable act was responsible for the whole or only a part

of the damage (e.g., whether his calumny caused all the damage, in view

of the fact that others were also spreading calumnies).

(b) One who doubts positively and in good faith whether the restitution

owed by him has been paid (e.g., whether his fellows in calumny have

paid their portions of restitution, whether he has paid a bill for

goods or services received) is held to full payment by some, to part

(_pro rata_) payment by others, to nothing by others. Some moralists

think the presumption favors the creditor, others that it favors the

debtor, others that it favors neither and that a compromise is the

right solution.

1801. Doubt does not excuse restitution in the following cases: (a)

when it is merely negative and the presumption is against the doubter

(e.g., when a person knows that he purchased and received goods, but

does not know whether or not he paid for them, and has no reason to

think he did pay); (b) when it is in bad faith, that is, knowingly or

intentionally produced (e.g., when two men simultaneously fire at a

neighbor’s cow, knowing that it will thus become impossible to

determine the author of the damage).

1802. Special Cases.--There are some special cases of restitution for

negative injury in thwarting another’s prospects, or for positive

injury to goods of fortune, of body, of soul, or of spirit.

(a) For Frustration of Another’s Good.--Restitution is due for keeping

another from a good to which he has a strict right (e.g., an office to

which he has been chosen, property for which he has paid), or for using

force, fraud, bribes, or other unjust means to keep another from a good

to which he has a non-strict right (e.g., a position for which he has

made application, a gift which another contemplates bestowing on him).

The amount of restitution should be calculated according to the

previous probability of success on the part of the injured party and

the permanent results of the injury.

(b) For Injury Done to Goods of Fortune.--Private injuries are spoken

of elsewhere (see 1762 sqq.), and now we consider only injuries that

are in some way public. Commutative injustice entailing restitution to

the community is committed by damage to public property, breach of

contract made with the community, unjust means employed to prevent the

government from obtaining its dues, unjust cooperation in any of the

aforementioned acts; commutative injustice entailing reparation to

individuals is committed when the transgression of a law places an

undue burden on a fellow-citizen (e.g., when one unjustly escapes

military or jury service and causes a substitute to be called who would

not have been called otherwise, or when one unjustly evades one’s taxes

and thereby certainly causes the taxes of others to be raised). If a

tax law is just, it obliges in conscience, but whether as penal or

preceptive, whether in virtue of legal or commutative justice, is a

much debated question; and hence the question of sin and of restitution

due is not easily settled. Impossibility or a general and admitted

custom excuse from restitution (see 2637 sqq.).

one view no restitution is due for merely personal injuries, since the

damage cannot be repaired by a good of the same kind as that which was

taken away (e.g., the murderer cannot give back life to his victim);

but according to another view restitution is due for these injuries,

since justice requires that every kind of damage be repaired as far as

possible (see 1751 and 2090).

1803. Restitution for Various Kinds of Damage Done to Persons.--(a) For

Bodily Injury by Unjust Homicide or Mutilation.--The offender (or his

heirs) is obliged to restitution to the victim (or his heirs or

dependents) for spiritual loss (such as death without the Sacraments),

probably for personal loss (such as pain, facial disfigurement), and

for real losses due to the injury (such as hospital expenses, loss of

support by the widow and orphans). The spiritual loss is compensated by

spiritual goods, such as suffrages for the departed, the personal loss

by compensation suited to the circumstances (e.g., money employment),

the real loss by payment of medical expenses, loss of time, support

lost by dependents, etc. The offender is not liable for damages of

which he is not the unjust cause (e.g., the alms that will be lost by

poor persons on account of homicide, since they have no strict right to

the alms), or the efficacious cause (e.g., the pay that will be lost by

creditors on account of homicide, for as a rule the slayer cannot

foresee this), nor for damages which the injured person clearly

condones.

(b) For Bodily Injuries by Fornication or Adultery.--In case of

fornication the offender owes restitution to the person seduced and

also at times to the latter’s parents, and both sinners are bound to

support their illegitimate child. The form of the compensation will

depend much on circumstances, but in general it should be either

marriage with the person seduced or some kind of pecuniary

compensation. It should be noted that a promise to marry, even though

it is canonically valid, gives no action to enforce marriage, but even

an invalid engagement gives rise to action for unjust material damages,

such as loss of chance to marry or loss of money spent in view of the

marriage (see Canon 1017). In case of adultery the guilty party or

parties are bound to make restitution to the injured husband if an

illegitimate child is being reared at his expense, and also to the

legitimate children for injuries to their strict rights, as in the

diminished inheritance received from their parents on account of the

illegitimate child. A child is not obliged to accept the word of his

mother that he is illegitimate, but if he is certain about his

illegitimacy, he may not take that to which he is not entitled. In

restitution for fornication or adultery, care must be taken to preserve

the good names of all the parties concerned.

physical goods (e.g., when one by fraud or force administers to another

drugs or intoxicants that take away the use of reason or self-control,

when a professor neglects his office of teaching or teaches error),

restitution is certainly due for any material damages that result, and

probably for the personal injury alone. In case of damage to spiritual

goods, by inducement to commit sin or by dissuasion from good,

restitution is due when the influence exerted was unjust (e.g., by

fraud, force, threats), not when it was merely uncharitable (e.g., by

advice, persuasion, request, example). Restitution for spiritual damage

may be made negatively, that is, by removal of the unjust influence;

but if a person who was seduced has in consequence become a hardened

sinner, it seems that restitution should be made positively, that is,

by counsels, requests, prayers to God, and other prudent means

calculated to recall the injured party to a life of virtue.

Art. 4: THE VICES OPPOSED TO COMMUTATIVE AND DISTRIBUTIVE JUSTICE

(_Summa Theologica_, II-II, qq. 63-78.)

1804. The Vice Opposed to Distributive Justice.--Favoritism (i.e.,

acceptance of persons, partiality) is defined as “a species of

injustice which moves one to distribute the common goods or burdens of

society, not according to merit or fitness, but according to some other

and impertinent standard.”

(a) The common goods include offices, honors, functions, while the

common burdens include taxes, contributions, and penalties.

(b) The common goods of which we now speak are those that belong to

society and that must be portioned out to its members justly. Hence,

there is no question of goods that belong to private persons, which the

owners are not obliged to give to others unless it be in virtue of

charity or liberality. A rich man is not guilty of acceptance of

persons, if he bestows his largesses on those who are less in need or

less deserving, but more acceptable to himself; and God is not unjust

when he gives unequal graces to those who are equally sinners (Matt.,

xx. 14, 15).

when an applicant is appointed to the post of teacher or superior on

account of good character and knowledge. Any other standard which

leaves merit and fitness out of consideration is unjust, as when a

public official selects for offices or honors, not those who have

worked the hardest or who give the most promise, but those who have

more money or who are related to himself.

1805. The Sinfulness of Favoritism from Revelation.--In Holy Scripture

favoritism is reproved (“How long will you judge unjustly and accept

the persons of the wicked?” Psalm lxxi. 2), and impartiality is praised

(“Thou art a true speaker and teachest the way of God in truth, neither

carest Thou for any man, for Thou dost not regard the person of man,”

Matt., xxii. 16; “Masters, know that the Lord both of servants and you

is in heaven, and there is no respect of persons with Him,” Eph., vi.

9). Distributive justice is commanded in many passages of Holy Writ

(“Consider not the person of the poor, nor honor the countenance of the

mighty; but judge thy neighbor according to justice,” Levit. xix. 15;

“There shall be no difference of persons, you shall hear the little as

well as the great, neither shall you respect any man’s person,” Deut.,

i. 17; “Thou shalt not accept persons nor gifts,” Deut., xvi. 19; cfr.

James, ii. 1 sqq.).

1806. The Sinfulness of Favoritism from Reason.--Favoritism

transgresses a divine command and substitutes personal will for right

in the treatment of subjects by superiors. Hence, it is morally evil,

for disobedience is sinful in the high as well as in the low, and

violation of rights is unjust whether the rights be of the community or

of the individual.

1807. The Gravity of the Sin of Favoritism.--(a) From its nature,

favoritism is a mortal sin; for it is a form of injustice (see 1746),

and indeed it is no less damaging than commutative injustice (e.g.,

theft) and is often accompanied by the latter. (b) From its matter and

from the lack of deliberation or consent it may be venial. Thus, if

favoritism is shown in a trifling matter (e.g., in conferring a post

that is unremunerative and unimportant) or in a small degree (e.g., in

preferring an applicant who is only slightly less worthy), there is

only venial injustice.

1808. Distributive injustice is also frequently accompanied by

commutative injustice.

(a) Thus, a first class of common goods that are distributed are those

intended primarily for the common good, and only indirectly and

secondarily for the good of individuals, such as public offices,

dignities, and benefices. He who distributes these offices unfairly, by

appointing unworthy persons, or by appointing the less worthy when he

is under contract to appoint the more worthy, violates commutative

justice and is held to restitution to the community; but the worthy or

more worthy persons slighted had no strict right, and hence no

restitution is due them, unless there was a compact with them or unjust

means were used to exclude them (see 1755).

(b) A second class of common goods are those that are intended

primarily for the benefit of individuals, such as a fund created for

the relief of the destitute or afflicted or pensions set aside for

those who have deserved well of society. He who distributes these goods

unfairly is guilty of commutative injustice against private persons,

since the goods were destined for them, and they had a right _ad rem_

to the goods, and hence to these persons restitution is owed.

1809. Favoritism in Spiritual Matters.--(a) Partiality in granting

favors is sinful, and gravely so when the matter is serious. Examples

are the grant to the unworthy of the power of Orders or of

jurisdiction, the concession of permissions and dispensations to one’s

friends that are denied to others. (b) Partiality in imposing burdens

is also sinful, as when a prelate issues an onerous command, and grants

exemption to his friends. But if the thing commanded is obligatory

already by reason of law, it should be observed in spite of the

favoritism of the prelate.

1810. Who is to be considered as more worthy for appointments in

spiritual matters?

(a) The more worthy person is the one who will better serve the common

good in the office. Hence, the more pious or the more learned man is

not necessarily the more worthy, for another may have greater industry,

influence, executive ability, initiative, prudence, experience, etc.,

and so be better suited to fill the position. But no person should be

considered as worthy of spiritual offices unless his moral character is

good, and excellence in temporal things does not compensate for

negligence in spiritual matters.

(b) The more worthy person is the one who is more available when the

appointment has to be made. Hence, the one who is better gifted for the

office is not necessarily the more worthy, for another may be better

known and it may be impossible to make investigations and comparisons

at the moment.

1811. Opinion of the Applicant or Appointee about His Own Fitness.--(a)

The applicant need not think that he is worthy or the most worthy;

indeed, according to St. Thomas, it would be presumptuous for him to

think so highly of himself, and he would thus become unworthy. It

suffices, then, that the applicant have in mind only to try for the

office, leaving the decision about fitness to the examiner or appointer.

(b) The acceptor who feels that he is unworthy or less worthy is not

guilty of injustice; for he is not the judge of his own abilities and

may rely on the judgment of those who appoint him. Moreover, he can

trust to divine grace and his own efforts to make up for any deficiency

or inferiority of which he is conscious. But it seems that, if the

appointee were absolutely certain that his appointment was unjust, he

would be bound to surrender his office, if this were possible.

1812. Favoritism in Secular Matters.--Do the conclusions in reference

to ecclesiastical offices apply also to secular offices?

(a) In both cases distributive justice is violated by favoritism, for

the standard followed is not merit or fitness, and thus the more worthy

persons are injured. The opinion that civil society has dominion of

public offices and therefore the right to distribute them at will,

without regard to the merits or fitness of persons selected, is not

probable; for civil rulers, like spiritual rulers, should consider

themselves as ministers and dispensers only (I Cor., iv. 1), and even

if they had dominion over offices, they would be bound to use that

power for the benefit of the public for whom they rule.

(b) In both cases also commutative justice is violated in some

instances, the offense being either against society or against

individuals (see 1755, 1808). Thus, an official who appoints a

subordinate knowing that he will oppress and rob, is responsible and

bound to restitution to the victims as being a cooperator in injustice.

1813. Favoritism in Marks of Esteem or Honor Shown to Others.--(a)

There is no favoritism if honor and esteem are shown to those who

deserve it on account of their virtue or position. Hence, it is not

unjust but just to show special marks of veneration to holy persons,

and even to those who are not holy, but whose authority or age deserves

respect (such as rulers and prelates, parents and aged men).

(b) There is favoritism if honor and esteem are shown to those who have

no genuine claim to it on account of goodness or rank. Thus, wealthy

men are worthy of special respect on account of goodness when they

employ their riches in useful ways, or on account of preeminence in the

community in rank, ability, influence, etc., and he who shows special

courtesy or attention to the wealthy for reasons such as these is not a

respector of persons. But if mere wealth is worshipped, sinful

favoritism is shown, as when a villainous rich man is honored and a

worthy poor man is despised, or well-dressed persons are conducted

honorably to comfortable seats in church and good persons whose attire

is poor are treated with contempt (James, ii).

1814. Favoritism in Judges (Umpires, Arbitrators) and the Like.--(a) In

the course of a trial there may be favoritism in matters left to the

judge’s discretion. This does not happen, however, when the

discretionary power is intended for the judge’s own benefit (e.g., when

on a free day he decides to hear one side rather than the other), but

when it is meant for the benefit of the litigants (e.g., when he grants

to one side a longer time for preparation of its case than to the other

side and for no reason pertinent to the matter at issue).

(b) In the sentence pronounced there is favoritism, if the decision is

not based on the merits of the litigants, but on extraneous

considerations, such as the fact that one of the parties is a friend or

relative of the judge or arbitrator, or belongs to the same political

party or business, etc.: “It is not good to accept the person of the

wicked, to decline from the truth of judgment” (Prov., xviii. 5). If

the arguments are about evenly balanced on both sides, it would be

favoritism to decide in favor of one against the other. Alexander VII

condemned the proposition that a judge may take money in such a case of

doubt to decide for one party (Denzinger, n. 1126).

1815. The Vices against Commutative Justice.--These vices can be

classified under two general heads: (a) the vices committed in

involuntary commutations (see 1748), which include deeds against the

person (such as homicide, mutilation, imprisonment) and against

property (such as theft and rapine), and unjust words, whether spoken

during judicial process (by judges, advocates, witnesses, etc.), or

outside of judicial process (such as contumely, detraction, etc); (b)

vices committed in voluntary commutations (see 1748), which include

fraud and usury.

1816. Homicide.--Life destroyed is either that of an irrational being

(i.e., of a plant or beast) or of a rational being. In the latter case

we have homicide, which is defined as follows: “an act or omission of a

human being that is the efficacious cause (see 1763) of the death of a

human being.” A parent who denies his child the food, remedies or

climate which it needs and which he can afford commits homicide by

omission; a physician who practises abortion commits homicide by act.

The following distinctions of homicide have a bearing on its

substantial morality (i.e., its lawfulness or unlawfulness):

(a) in reference to the intention, homicide is either voluntary or

involuntary, and voluntary homicide is intended either as a punishment

or as a defense;

(b) in reference to the slayer, homicide is either the act of a public

or of a private person, of a cleric or of a layman;

one who is guilty or of one who is innocent, either the killing of a

neighbor or of self (suicide);

(d) in reference to the manner, homicide is either direct or indirect,

according as the action from which death results is from its nature

(_finis operis_) productive of death or of some other effect. Thus, it

is directly homicidal to practise embryotomy (i.e., the destruction of

the vital organs of a fetus) or abortion (i.e., the ejection of a fetus

at a stage of development when it is unable to live outside the

mother), but it is not directly homicidal to give a pregnant woman

remedies necessary for her life, although harmful to the fetus; for the

object or purpose of the former is to kill, of the latter to cure.

1817. Other distinctions of homicide have a bearing on its added or

accidental malice.

(a) A new species of sin is added to that of injustice when other

virtues are offended against. Thus, the virtue of piety is violated

when the victim is a person to whom the slayer owed special respect and

devotedness, as in parricide, regicide, fratricide, uxoricide; the

virtue of religion is offended when murder is committed in a church.

(b) An aggravating circumstance is added by the greater deliberation

with which the homicide is planned, or the greater treachery or cruelty

with which it is executed (e.g., assassination, death by starvation).

Some circumstances, however, may be morally indifferent, such as the

fact that the victim is killed by one kind of poison rather than

another.

1818. The Killing of Animals (or Vegetation).--(a) In itself, the

killing of animals is not sinful; for animals are made for the use of

man. Hence, it is lawful to kill, not only harmful animals, such as

those that prey on human beings or breed pestilence or destroy

property, etc., but also other animals, when their death is necessary

for some good purpose, such as the provision of food, clothing or

medicine for man.

(b) In its circumstances, the killing of animals may be sinful, and

even gravely sinful, as when one kills the animals of one’s neighbor

(Exod, xxii. 10, 11), or hunts against the law, or injures society by

prodigal destruction of animal or plant life, or kills animals in cruel

ways. The skinning of animals alive, in order to secure finer-looking

furs to satisfy the vanity of women, is an inhuman barbarism of the

worst type that should be reprobated by everybody.

1819. When Homicide Is Lawful.--Killing of human beings is lawful in

two cases. (a) It is lawful when the common safety requires that the

State inflict death for a crime (capital punishment); for just as it is

lawful to amputate a gangrenous member which threatens to destroy the

body, so is it lawful to remove from human society by death an

individual who menaces the safety of the community. (b) It is lawful

when the safety of an individual demands that he kill an unjust

aggressor (self-defense); for a man owes his first duty to his own life

in such a case, and the aggressor in making a deadly attack voluntarily

assumes the risk of being killed. It is more correct, however, to say

here that it is lawful to defend one’s life with resultant death to the

offender (as will be explained below, in 1826, 1828, 1834).

1820. Arguments for the Lawfulness of Capital Punishment.--(a)

Scripture.--In the Old Testament the death sentence was prescribed for

certain more serious crimes, such as murder (“whosoever shall shed

man’s blood, his blood shall be shed,” Gen., ix. 6); in the New

Testament Our Lord recognizes that the power of a judge to sentence to

death comes from above (John, xix. 10), and St. Paul declares that

princes do not wield the sword without reason, but act as ministers of

God when they punish evil-doers (Rom., xiii. 4).

(b) Tradition.--The Church has always taught the lawfulness of capital

punishment and rejected contrary errors, as in the case of the

Waldensians condemned by Innocent III.

common good and to defend it against its enemies, whether by war

against external foes or by coercive measures against internal

disturbers of the peace. Now, the experience of all the centuries and

of all countries has shown that, generally speaking, the lives of

law-abiding persons and the general peace are not sufficiently

protected unless the supreme penalty be appointed for certain crimes.

1821. Though lawful, capital punishment is not always necessary; for it

is a means to an end, and it may be omitted, therefore, when the end

can be obtained by the use of other and less severe means.

(a) Thus, a general suspension of the capital punishment is lawful in a

community whose members are peaceful and not inclined to violence or

other crimes subversive of law and order. Whether such ideal conditions

exist today may be doubted, and indeed some countries that abolished

the death penalty have found that this proved an incentive to crime and

they were forced to restore the former laws.

(b) A particular exemption from capital punishment is lawful, when

there are good reasons recognized by law for commutation or clemency.

This has been the practice of governments throughout history, and is

justified when it furthers the common welfare, or at least shows mercy

to a deserving individual without harm to society. But a judge has to

condemn when the law and the facts call for condemnation, and the

authority in whom the pardoning power is vested has to use his power

prudently, lest he encourage lawlessness.

1822. It is not morally lawful to put criminals to death unless the

following conditions are present:

(a) the crime must be external and of such a character that the public

welfare requires the supreme punishment, either on account of the

enormity of the act (e.g., murder), or on account of its danger (e.g.,

sleeping at one’s post in time of war). Further, the crime must be

certain and sufficiently established, for, since the punishment should

fit the offense and the law presumes innocence until guilt is proved,

no one should be sentenced to death except for a serious and certain

crime. The Fifth Amendment to the American Constitution declares that

no person shall be deprived of life, liberty or property without due

process of law;

(b) the sentence of death and its execution should be performed by

those who have public authority for these acts and in the manner

required by law. For capital punishment is a means of self-defense used

by society, and its use pertains there fore to the representatives of

society. Moreover, if private individuals exercised this function,

accused persons would not receive the consideration of their rights or

the opportunity of defense due them, and the public peace would be

overthrown by murders of revenge committed in the name of justice.

as is manifest. The convicted man should be allowed time and

opportunity to make his peace with God and, if possible, to say

farewell to relatives. Slow and agonizing forms of killing are of

course entirely wrong, no matter how wicked the criminal who is being

executed. The American law and other laws do not permit a pregnant

woman to be executed until she has delivered her child.

1823. Unlawful Killing of Offenders.--The killing of offenders is,

therefore, unlawful in the following cases:

(a) when the offense is not serious or fully deliberate (e.g.,

involuntary manslaughter), or when it has not been sufficiently

established (e.g., if it is not certain that the supposed victim of

murder is dead or that he died from a homicidal act). In civilized

countries today the law inflicts capital punishment only for the most

serious crimes, and the State has to prove its case beyond reasonable

doubt before the punishment can be decreed. But in the past death was

often the penalty for horse- or sheep-stealing, or even smaller

offenses, and in times of excitement men have sometimes been sentenced

to death without a fair trial;

(b) when the sentence of death is not pronounced or executed legally.

Those who lynch the perpetrators of heinous crimes are often in good

faith, especially if the processes of the law are too slow or

uncertain, but since they act without authority, their deed is really

murder. The same is true of a husband who kills his wife taken in

adultery, of the relative of a seduced girl who kills the seducer, of

an officer of the law who unnecessarily or without authorization kills

a man sentenced to death when the latter is trying to escape. The State

has the right, though, to declare a notorious malefactor outlawed, and

thus to give to private citizens the right to take him dead or alive,

or to kill him on sight; but it is clear that the exercise of this

right is a dangerous remedy and one to be used sparingly;

Christian feeling. Today capital punishment is generally inflicted in a

humane manner, but history records many cruel forms of execution, as

when men were hanged, drawn and quartered, or burned at the stake, or

put to death amid the jeers and curses of the populace.

1824. Is Tyrannicide Lawful?--(a) If the ruler is a tyrant in act (that

is, one who has a lawful title to rule but who abuses his authority),

it is not lawful to kill him on account of his misdeeds or crimes,

since the subject has not the authority to act in the name of the

nation (Rom., xiii. 1 sqq.; I Peter, ii. 18). In case of self-defense,

however, as when the tyrant unjustly makes a personal attempt on the

life of a citizen, the latter has the right to kill. The Council of

Constance condemned the doctrine of Wycliff that every subject has the

right to assassinate a tyrannical prince, a doctrine that would make

the position of every ruler unsafe, since there are always persons who

think they are victims of persecution. The nation, however, has the

right to depose or even to execute a wicked ruler, for government is

given to rulers for the benefit, not for the destruction, of the common

good.

(b) If the ruler is a tyrant in title (that is, a usurper), it is not

lawful to kill him, when he has already obtained peaceful possession;

for here again it cannot be said that the killer would have the

authorization of the nation. If, however, the tyrant has not obtained

possession but is struggling for it, his status will not be that of

ruler but of public enemy, and it will be lawful to kill him as an act

of war, provided the conditions of a just war are present (see 1384).

1825. Judges and Executioners in Canon Law.--According to the law of

the Church (Canon 984, nn. 6, 7), those who pass the death sentence as

judges and the executioners and their immediate and voluntary helpers

become irregular (i.e., incapable of lawfully receiving Orders or of

exercising their powers). The reasons for this ancient discipline are

chiefly two:

(a) clerics are the ministers of Christ, and therefore they should be

like their High Priest, whose sacrifice they offer at the altar. Now

Christ “when He was reviled, did not revile, when He suffered, He

threatened not, but delivered Himself to him that judged Him unjustly”

(I Peter, ii. 23). Hence, it is unbecoming that clerics should condemn

to death or kill their fellow-men, even criminals;

(b) clerics are the ministers of the New Testament, and therefore they

should conform themselves to its spirit of mildness. The divine law

itself declares that a bishop should not have private quarrels or

inflict blows (I Tim., iii. 3), but the church law goes further and

declares that a cleric should not even act as public judge or

executioner in capital cases. The Old Testament inflicted corporal

punishments and death, and hence we read that its priests and levites

put sinners to death with their own hands (Exod., xxxii. 28; Num., xxv.

7, 8; I Kings, xv. 33; III Kings, xviii. 40; I Mach., ii. 24), but the

law of Christ contains no sentences of death or of bodily chastisement.

1826. The Right of Self-Defense.--The second case of lawful homicide

mentioned above (1819) is the killing of an unjust aggressor, not

intended by the slayer, but consequent on his defense of his life

against the aggressor. This right of self-defense is granted by natural

law itself, and has been denied by but few moralists.

(a) Thus, nature inclines man to prefer his own life to that of

another, other things being equal, and therefore it authorizes him to

defend his life even at the cost of an aggressor’s life. Even the brute

animals are armed by nature to defend themselves against attack.

(b) The natural law also permits one to perform an act from which two

effects will follow, one good and the other bad, provided the good

effect alone is intended and there is a sufficient reason for

permitting the evil effect (see 104). In the present case the killing

of the aggressor is an evil, while the protection of the innocent party

is a good; but it is only the protection that is intended, and the

killing is not an extreme measure in view of the greatness of the good

that is at stake.

1827. The right of self-defense is also sanctioned by human laws. (a)

Thus, church law recognizes this right in the words of Innocent III:

“All laws permit one to repel force by force, but the defense must not

be immoderate, nor exercised from desire of revenge.” According to the

Code (Canon 985, n. 4) irregularity arises from voluntary homicide, but

this does not include the case of lawful self-defense, although a

provisional dispensation must be asked for. A cleric has the right of

self-defense, as well as a layman. (b) Civil law also has always

admitted the right of a person assailed by another to defend himself,

even by killing the assailant, if there is no other alternative.

1828. Conditions for the Exercise of This Right.--(a) The assault must

be a true aggression (i.e., an act of violence threatening the life of

the person assaulted) and unjust (i.e., an attack made without public

authority); (b) the resistance must be true self-defense (i.e., an act

used to ward off attack or to make the assailant powerless) and

moderate (i.e., the person attacked must not use more force than

necessary and he must not intend to kill the assailant).

1829. The person who is killed must be a true aggressor, for otherwise

the slayer is himself the aggressor and guilty of unjustifiable

homicide. Killing is therefore unjust in the following cases:

(a) when the opponent is not using true violence, as when he merely

prays and hopes that you may die or be killed;

(b) when he is not using actual violence, as when he is disarmed or

helpless, or when he has only threatened to kill you in the future, or

to bring you to the gallows by his testimony or vote.

1830. Must one wait, then, until the aggressor has actually attacked,

before using self-defense? (a) One need not wait until physical

aggression has started (e.g., until the adversary has fired a shot or

struck a blow); otherwise self-defense would very often be futile. (b)

One should wait until moral aggression has been shown before proceeding

to defense; that is, the other party must perform some external act

which according to the judgment of a prudent person at the time and

place is one with the act of physical aggression, as when an angry man

reaches for a gun or knife, or a desperado advances in a threatening

manner.

1831. The aggression must also be unjust or contrary to the right of

the person attacked. (a) Thus, if the aggression is just, it is not

lawful to kill the aggressor. Hence, it is not lawful to kill an

officer of the law who is making an arrest, or guarding a prisoner, or

leading him to execution. (b) If the aggression is not just,

self-defense is lawful. It makes no difference whether the aggression

is formally unjust (e.g., when the aggressor attacks you because he

wishes to wreak revenge, or because he fears you), or only materially

unjust (e.g., when you are a stranger to the aggressor, but he is

drunk, or a dope fiend, or a maniac). Similarly, a son may defend

himself against his parent, a subject against his superior, a layman

against a cleric, an adulterer against the injured husband, a

calumniator against the person calumniated; for authority or personal

injury suffered does not give these persons the right to inflict by

private authority the punishment of death.

1832. Self-defense must be merely a protection of self against future

evil and not a punishment of the aggressor for past attacks, for

capital punishment belongs to society, not to private persons. Hence,

if an aggressor has taken to flight, or has been disarmed, or knocked

senseless, or has begged for mercy, it is not permissible to kill him.

(e) Rash judgment is a certain conviction or judgment, that is, one