Doubt I: On the restitution owed for goods impeded by violence, fraud, or evil intention

It is first SUPPOSED, by the common consent of all, that he who by prayers, blandishments, or other like means persuaded someone, who was going to give liberally to one person, to give rather to another, is not compelled to restitution; because as yet Justice is acquired against no one, against whom an offense could be committed; and this is intimated in the last law, C. si quis aliquem testari prohibuerit; wherefore if by prayers you persuade Caio, about to make a testament, to leave a legacy rather to Titio than to another, you are not held to restitution.

It is SUPPOSED second, according to Caietanus, Paludanus, Sylvestrus, and others in Azorius p. 3. lib. 4. cap. 9. quaestito 4., that he who in any way impeded the worthy man from an office or benefice, so that it be possessed by the unworthy, is held to make good a double loss: namely, to the Church, or the Republic, to which the unworthy man is preferred; and to that worthy man who is rejected out of regard for him; since each has equally acted against Justice, depriving both, whether the benefice or the minister. So an undue loss is inflicted on both.

It is SUPPOSED third, as certain, that he is held to restore who, even without force, fraud, or wicked intention, impeded another from acquiring a good to which he had some right of commutative Justice, whether that right was the perfect one, which they call Ius in re, (as Nauar. note, cap. 17. num. 89. Valentia quaest. 6. punct. 5. col. 923.) obtained by dispensation among the living, or by testament, or by legitimate collation, or confirmation, or by another legitimate way.

Or whether it was the imperfect right, which they call Ius ad rem acquired (as Nauar. and Valentia say) by just promise, purchase, stipulation, election, presentation, apposition, concourse, expectancy, regress, access, auxiliary help, primogeniture, or by another title of this kind; from which one can legitimately petition the Judge that the free faculty be made and preserved for him of progressing to the acquisition of the perfect right, and consequently of the real possession of it itself. The holy Doctor expressed this twofold way in these words: Damage can be done in a twofold way, either by impeding a good possessed; behold the first: or one to be possessed; behold the other.

The REASON is, because he violates Commutative Justice: Therefore he is held to restore; and indeed, if he has a perfect right, the impeder is held to restore the whole; but if the right was imperfect, he will be held to what is estimated pro rata for the certainty of the benefit, etc., with what must be computed being computed.

Valentia then POSITS as certain that he is held to restore who by fraud, deceit, or force impeded another, even an unworthy one, from a good to which he had no right from distributive or commutative justice; But this is not proved to me, because if he has no right, the matter does not concern justice, which is owed to the unworthy; and although one sins against Charity by unjustly revealing someone's hidden crime; yet since the sin is only against charity, no obligation of restitution arises from it.

But they ASK: Whether from this an obligation of restitution arises, because out of some evil affection of hatred, and with a wicked end, he impeded another from acquiring goods, whether he had a right to it or none at all.

Scotus AFFIRMS, 4. dist. 15. quaest. 6. art. 3. Palud. quaest. 2. art. 2. Richard. art. 5. quaest. 4. ad 7. and they ascribe the same to D. Thom. art. 2. ad 4.

The OPPOSITE opinion Adrianus teaches, de Restit. Sotus lib. 4. de Iust. quaest. 6. num. 3. Couar. relect. in Reg. Peccatum p. 2. §. 7. Nauar. cap. 17. n. 70. Valentia quaest. 6. punct. 5. col. mihi 924. Caietanus art. 2. Caspensis disp. 1. sect. 10. num. 116. Couar. epist. 4. p. 2. cap. 6 §. 7. This, which the holy Doctor supposes in speculo animae, cap. 1. and 2., where he derives the obligation of restitution from the mere doing of damage, is without controversy true; and therefore things done out of hatred he indeed places as opposed to charity, but not to justice, and consequently not liable to restitution, as the authors alleged argue, and Tannerus disp. 4. quaest. 6. dub. 2. num. 64. citing Scotus loc. cit. and others.

S. Bonav. indeed CONCEDES, loc. cit. and to others to be referred in disputation 34., that material detraction, which is not out of hatred, or envy, or anger, is not mortal. Yet it does not exempt from the obligation of restitution one who does damage in that way; just as if someone playing, or without reflection, pushed another into a river, where he was submerged; the pusher would be held to pull him out, if he could; or if someone threw another's purse, not with a wicked mind but in play, into a hidden place; for even if he did not sin by throwing it, he would nevertheless be held to restore it.