Question XII: On the restitution of thefts

I have said much above about Restitution, which is indeed necessary, not indeed by necessity of means, as I said there with St. Bonaventure — for without it one can be saved, if a thief has no means by which to make restitution — but by necessity of precept, as is commonly held with the Seraphic Doctor, who gathers this in the Confessionale, cap. 4. part. 2, and in the Mirror of the Soul, cap. 1, from St. Augustine epist 54. ad macedon. t 4. quaest. 6, where it is said: If the goods of another, on account of which the sin was committed, can be restored and are not restored, penance is not done but feigned. But if penance is done sincerely, the sin is not forgiven unless what was taken away is restored. The same is taught by Petrus Navarrus, Lib. 1. de restitut. cap. 1, Valentia disp. 5. puncto 2, Aragon. 2. 2. quaest. 62. art. 2, Sayrus L. 10. Tract. 1. cap. 4. For necessity of precept exists when it can be fulfilled; but necessity of means is absolute, without which salvation cannot be obtained.

You will object that the particle Unless indicates a necessity of means, John 3: Unless a man be born again, etc. And: Unless you do penance, etc.

The Holy Doctor answers, in 4. dist. 12. part. 2. art. 2. quaest. 1, that necessity of means is not always indicated, for in John 6 it is said: Unless you eat the flesh of the Son of man, you shall not have life in you, and yet Communion is not necessary as a means.

I suppose, moreover, that restitution is brought in by the violation of justice alone, as all commonly teach. Doctors, however, labor in assigning the reason why justice alone demands restitution for its own equality.

Valentia, disp. 5. quaest. 6. puncto 3, as in Sayrus Lib. 10. Tract. 2. cap. 1, gives a certain reason, not the one we seek, but why one man is bound to restitution and another is not; namely, because the one sinned against justice, the other against another virtue, say, of Charity.

Navarrus, in man. cap. 17, says that other Doctors have not given the reason of this matter, but that he himself gives a new one, namely that other virtues are not violated by the taking away of some external thing. Which Petrus Navarrus says in other words, L. 2. cap. 1. num. 12. de restit., although he wished to carp at the reasoning of the other Navarrus.

Sylvester, V. restitutio, 3. quaest. 6. §. Tertium, says the reason is that no one is bound to restitution except the one who is the cause of the inequality of goods; but it belongs to justice alone to cause equality. Sayrus subscribes to this reason, Lib. 10. tract. 2. cap. 1. num. 3, namely because it turns on debit and credit.

The Seraphic Doctor, best of all, in 3. dist. 33. quaest. 3, says the reason is that justice, among the others, is ordered to another, in rendering all things that are each one's own, and because it is one of the virtues that order to another according to the ratio of debt; Therefore this virtue, which is Justice, brings in restitution.

He explained it, moreover, more fully in quaestione 1: that justice is not rectitude of the will as such, but such rectitude as orders to another, having as its object right, or the useful good, which is another's. So that restitution arises from damage inflicted in goods, whether of wealth, or of reputation, or of honor, or of life, as the Seraphic Doctor discusses in the Mirror of the Soul, cap. 1. We now treat of damage in temporal property.

And indeed in theft a twofold root of the precept of restitution arises, both from iniquitous taking and from iniquitous detention or possession, as the Holy Doctor says there.

And because it is clear that under the name of another's goods not only the thing but also the fruits, which the thing itself by its nature is accustomed to bear, is understood; Therefore here I shall discuss in what manner restitution is to be made on account of the fruits of the stolen thing. On this Fagundez treats at length, Lib. 7. cap. 15. and 16.

Stolen things, then, are of a twofold difference; for either they are things which have increase and decrease from within, as a foal, a growing calf, trees, etc.; or they are things which have decrease or increase from without, from the time and place where they are sold, as wheat, wine, oil, cloth, and other similar wares.

In guarding and feeding these, etc., expenses occur: some necessary for feeding the foal, and others useful, which the owner would not have made for improving that thing — say, to feed the foal with grain, that it may grow stronger.

Therefore, if the thing still exists, it must be restored to the owner, after deducting the necessary expenses and reasonable useful expenses in the forum of conscience. So Lessius lib. 2. cap. 12. de iniur. Fortun. disp. 16. num. 10, Petrus Navarrus Lib. 4. disp. de restit. cap. 1. num. 30. and 32, Covarruvias ad regulam peccatum, part. 2. §. 6, Medina, Cod. de restit. quaest. 6, Sylvester V. expensa, quaest. 4, Fagundez lib. 7. cap. 15.

In the external, or judicial forum, however, useful expenses are not compensated, nor the thief's industry in improving the thing; for in punishment of the theft, useful expenses are forfeited: Lex, si a Patre, §. fructus, ff. de petit. heredit. et Leg. plane, in fine eodem tit. et Institutio de rerum divisione, §. ex diverso, and the authors cited teach this.

But if the thing has already been alienated, with that intrinsic improvement, the thief is bound to restitution to the owner for the whole benefit, the expenses having been deducted, as above. So Filliucius Tom. 2. tract. 32. cap. 4. num. 88, Covarruvias reg. Peccatum, §. 6. num. 1. part. 2, Navarrus summa Lux. cap. 17. num. 36, Gabriel dist. 15. quaest. 2. art. 3. dub. 1, Angelus V. furtum, quaest. 44, Sylvester V. restit. 1. quaest. 7, Lessius lib. 2. cap. 12. de iust. disput. 16. num. 105, Petrus Navarrus Lib. 4. cap. 1. num. 57, Fagundez num. 9, and cap. grauis de restitut. spoliat., and Leg. in restituta, §. de furtis, and L. si nauis, §. si generaliter, ff. de rei vendit. apply.

The RATIO is drawn out by St. Bonaventure, in the Mirror of the Soul, cap. 1, at the end, because during that whole period the thief was under a continuing obligation of restitution: Therefore also for the time when it was in its best state and had a greater price. Yet Diana adds, p. p. Tract. 17. resol. 51, that this is true if the owner was going to sell the thing at the highest price, in its best state; and he says this is the opinion of all the Recent writers.

I say thirdly. If you have trampled down green crops, you are not bound to restore the whole of what they would have been worth at harvest, but according as they were appraised in hope, the dangers of hail, etc., being computed. So Lessius L. 2. cap. 12. cit. disp. 19. num. 135.

I say fourthly. Wheat, wine, and other wares are to be restored at that price at which they were to be sold by the owner, in time and place lucrative. So the Doctors cited. See Fagundez loco cit. Yet if it is unknown when they were to be sold, it suffices to restore the mean price, nor is the highest necessary. So Diana p. p. Tract. 17. resol. 52, or by referring it to a prudent man.

I say fifthly, as to the fruits of things that commonly yield profit, as fields, vineyards, etc.: the thief is bound to restore the lands with the fruits, the expenses deducted. So commonly the Doctors, in Fagundez, cap. 16. num. 6.

It is proved by St. Bonaventure, loco cit., because thieves and possessors in bad faith do not acquire dominion over those things which are not consumed by use.

They assert this even if the owner, through his own negligence, would not have gathered those fruits; and then they say that he is bound also to restore the fruits which the owner would have drawn and which the thief, through negligence, did not take. So Lessius dub. 17. num. 115, Fagundez num. 14.

I say sixthly. If a thief trades with things consumable by use, and gains something, he is bound to restore the things, and the ceasing gain, and the loss accruing to the owner. So St. Thomas 2. 2. quaest. 78. art. 3, Sotus L. 6. de Iust. quaest. 1. art. 4, Covarruvias Lib. 3. variar. resol. cap. 3. num. 6, Panormitanus cap. nauiganti de usuris, num. ultimo, Molina Tom. 2. de Iust. disp. 327, Angelus V. usura 1. num. 15, Sylvester V. usura 6. quaest. 2, Fagundez num. 17. It is clear ex Leg. 1. Cod. si quis alteri, vel sibi, and Leg. penult. eodem titulo.

I say seventhly. If a thing perish in the thief's keeping which was not going to perish with the owner, whatever the cause of its perishing, the thief is bound to make restitution. So St. Thomas 1. 2. quaest. 62. art. 6, Lessius Lib. 2. cap. 12. et dub. 15. num. 90.

The RATIO from St. Bonaventure is: because the thief was at fault for delay, detaining that thing. But if the thing was certainly going to perish even with the owner, he is not bound to restore it. So St. Thomas loco cit., and commonly others, in Fagundez, cap. 17.