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