Question VI: How much is to be restored

I ASSERT first, that restitution of Arithmetic equality is owed from Commutative Justice. So D. Thom. art. 3. and commonly. It is clear from the nature of Commutative Justice, as Tannerus notes disput. 4. quaest. 6. dubio 14.

BUT this equality must be computed not only according to the present goods that have been taken away, but also according to those which existed in potentiality after the expenses were reckoned, such as the trampling of the seeds of a field; or the taking away of a merchant's horse, by which he earned his living at the Fairs. See Valentia quaest. 6. puncto 6. Caietanum V. Restitutio. Navar. manual. cap. 17. num. 27.

BUT restitution can further be imposed from Vindictive Justice. So D. Thom. art. 3. and commonly all others with D. Bonavent. in the places to be cited.

THUS in Exodi 22. it was enacted that he who had stolen an Ox or a Sheep, and killed or sold it, should restore five Oxen for one Ox and four Sheep for one sheep. To this David alluded, Reg. 2. cap. 12: He shall restore the sheep fourfold, and Zachaeus, Lucae 19: If I have defrauded anyone of anything, I restore fourfold, as the holy Doctor observes on this passage, noting that this was not necessary for Commutative Justice, as is clear; nor for Vindictive Justice, which is not to be fulfilled except after the sentence of the Judge, as the cited Doctors commonly teach, Tract. de Legibus, disput. 5. quaest. 7. et seq. Hence he concludes that it was rather an act of liberality.

AND in Diaetastit. 2. cap. 4. he admonishes that restitution is like a Phlebotomy, that is, an evacuation of blood, which is necessary for certain infirmities, because: Sin is not remitted unless what was taken away is restored, from D. Augustino epist. 54. and the example of Zachaeus adduced there. This Phlebotomy Zachaeus was performing when he said: If I have defrauded anyone of anything, I restore fourfold; but would that Usurers would repay only the principal in like manner.

MOREOVER Caspensis notes, disp. 1. sect. 11. that the quantity of the thing intended in restitution must be considered in the better state in which the owner would have used it; so that if you have wheat in the month of August and you withhold it until the month of May, at which time its owner would have sold it more dearly, you are bound to restore the greater price, because the thing always remained under the right of its owner, who would have used that wheat at a more profitable time. But if it is uncertain at what time he would have sold it (says Caspensis), the middle price must be restored. Likewise, if the thing unjustly suffers damage in the hands of the one retaining it, the loss will have to be restored, which was not receivable in the hands of the owner.