83. Restitution from Contract and from Law

1. Crepinius, a son under paternal power, by feasts, drinkings, games, held in a tavern with many other unruly youths, contracts many debts with Medardus the tavern-keeper. Grifinus gives surety for Crepinius. Hence, when Medardus could obtain payment of the debts neither from Crepinius nor from his father, he demands it from Grifinus.

Q. 1. Does an obligation of restitution arise from contract? — 2. What as to the Case?

R. To the 1st. Affirmatively. For this is deduced from the very notion of restitution. For through a contract another already has either a right in a thing or a right to a thing.

And if through restitution that which is his own must be rendered to another, it is plain that restitution must be made not only when another’s thing is held against the other’s will, as in theft and rapine, but also when it is held through his will, as in a loan for consumption or a deposit, or another contract. S. Th. 2.2. q. 62. a. 1.

To the 2nd. Since the debts contracted by Crepinius, a son under paternal power, did not yield to his advantage and utility, but to his damage and grave harm, Crepinius can invoke the sentence of a judge and not pay the debts. Let Medardus impute it to himself and to his own fraud that he contracted with a son under paternal power, supplying to him the occasion of so many vices. I. M. 667, 953. Nor truly is the father of Crepinius held to paying the debts. For he furnished no consent in contracting those debts; and so he is held neither by positive law nor by natural law. Nor is the father of Crepinius held to paying those debts if he himself administers the son’s goods. For the son himself cannot reclaim those goods except after majority, and the son then will be able to invoke the sentence of the judge. G. 586, 287, 771. — Grifinus is nevertheless held to paying the aforesaid debts by reason of the suretyship made. For although it was made for a minor, nevertheless it is valid both by natural law and by positive law. I. M. 1266.

2. Benignus, a bishop, administrator of a pious legacy of Masses, prudently doubting nothing concerning restitution, gave to Fidelis, a most faithful parish priest, as a loan the sum of 10,000 lire. After a week Fidelis suddenly dies. The sum lent is not found, nor any document of it; whence the heirs do not acknowledge it. Nor truly can Benignus bring forward any document. For on the same night on which Fidelis was dying, robbers carried away with them from the episcopal palace the chest with the money and papers of the whole episcopal administration. Did Benignus commit theft, and is he held to restitution?

R. To the 1st. Benignus did not commit theft. For theft is the hidden taking away of another’s thing, the owner being reasonably unwilling. But there was no hidden offering [printed: oblatio] of another’s thing, nor could the owner in that loan be reasonably unwilling, since no danger in it was prudently foreseen, and since Benignus certainly had to invest that money in some way, so that from the fruits Masses would be celebrated.

To the 2nd. Certainly all theological fault was lacking in Benignus. Wherefore from this head he would certainly be held to nothing. By reason of administration and quasi-contract he would indeed be held from juridical fault to restitution or compensation. But before the sentence of a judge, and in the forum of conscience, the matter is at least controverted among the doctors, and so the obligation is doubtful, and practically none. Besides, juridical fault is not established in the Case; for the loss of that sum is in truth owed to no negligence, but to a fortuitous event. Wherefore Benignus is held to nothing. The thing perishes to its owner. Nevertheless, since there is question of the celebration of Masses, and compensation as to them can easily be made through the Supreme Pontiff, supplying from the treasury of the Church, it seems that it should indeed be sought from the Supreme Pontiff. — I. M. 1072, 1077, 1118, 1389, 1393.

3. Durandus by a defamatory pamphlet defamed Guibertus the advocate. Recourse having been made to the judge, Guibertus obtained a sentence fully favoring him, and condemning Durandus to pay 50,000 lire to the same Guibertus as compensation for injured reputation and for repairing the damage inflicted. Durandus refuses to pay this sum, saying that the sentence is unjust and does not obligate him in conscience, because reputation is not compensated by money; because the damage inflicted on Guibertus, a middling lawyer, cannot be estimated as so much; because finally he himself took nothing away from Guibertus.

Q. What as to the Case?

R. Durandus is held to pay the whole sum of 50,000 lire to Guibertus by force of the just sentence of the judge. Although it is controverted whether, by the rigor of strict commutative justice, compensation is given between goods of a diverse order, e.g., between reputation and money, because between diverse goods there cannot be an equalizing of thing to thing; nevertheless there is no doubt that the aforesaid recompense can be given, by reason at least of natural equity, and by reason of a penalty inflicted by the legitimate authority of the judge. Wherefore from this head there is no doubt that the sentence of the judge was altogether just and obligating in conscience. I. M. 1324. “It must be said,” says S. Th. 2.2. q. 62. a. 2 ad 1, “that in those things in which an equivalent cannot be recompensed, it suffices that there be recompensed there what is possible.... And therefore when that which has been taken away is not restorable by something equal, recompense such as is possible must be made; as when someone has taken away a limb from someone, he ought to recompense him either in money, or in some honor, the condition of both persons being considered, according to the judgment of a good man.” And in the same place, ad 2, “It must be said,” says the Holy Doctor, “that someone can take away reputation from another in three ways. In one way by speaking truth and justly, as when someone reveals someone’s crime, with due order being observed; and then he is not held to restitution of reputation. In another way by speaking falsely and unjustly; and then he is held to restore reputation by confessing that he spoke falsely. In a third way by speaking truth, but unjustly, as when someone reveals the crime of another against due order; and then he is held to restitution of reputation as much as he can, nevertheless without a lie, as by saying that he spoke badly, or that he unjustly defamed him; or if he cannot restore reputation, he ought otherwise to recompense him.” Wherefore again the sentence of the judge from this head must be held as altogether just and obligating.

Nor truly is Durandus’s other reason valid, namely that the reputation of Guibertus cannot be estimated as so much. For first, judgment in this matter certainly does not pertain to Durandus, but to the judge. Besides, although the aforesaid reputation of Guibertus perhaps is not to be estimated as so much in itself, nevertheless after the sentence of the judge Durandus is held to recompense and pay so much. For,

“when someone unjustly accepts another’s thing, two things are to be considered there; one of which is the inequality on the part of the thing, which sometimes is without injustice, as is plain in loans for consumption; but the other is the fault of injustice, which can be present even with equality of the thing, as when someone intends to inflict violence, but does not prevail. Therefore as to the first, a remedy is applied through restitution, insofar as equality is repaired through it; for which it suffices that he restore as much as he had of another’s. But as to the fault, a remedy is applied through a penalty, the infliction of which pertains to the judge; and therefore, before he is condemned by a judge, he is not held to restore more than he accepted; but after he has been condemned, he is held to pay the penalty.” S. Th. 2.2. q. 62. a. 3. Therefore the judge, by condemning, can justly command that something more be paid in place of amends or penalty, which nevertheless was not owed before someone was condemned. S. Th. l. c. ad 3. Therefore the sentence of the judge in the Case is just also from this other head, and obligating in conscience, although it is true that in itself the reputation of a middling advocate is not worth so much.

Finally, that which Durandus asserts in the last place is also false, namely that he himself took nothing away. He certainly took away reputation; and, reputation having been taken away, he inflicted damage, and grave damage, on Guibertus. But whoever damages someone takes away from him that in which he damages him; and damage unjustly inflicted must be compensated from strict justice.

4. Ioannes in France legitimately contracted marriage in the face of the Church with Ioanna, from whom he had one only son, to whom by testament he left his whole rich inheritance. After the death of Ioannes it is learned that his marriage with Ioanna had been null, on account of the fourth degree of consanguinity, which nevertheless had always previously been unknown by both spouses. Hence the blood-relatives of Ioannes, in order that they themselves may receive the inheritance, strive altogether to exclude from it the only son of Ioannes, as illegitimate and born from an invalid contract of marriage.

Q. What as to the Case?

R. Since the marriage of Ioannes and Ioanna, although invalid, nevertheless was contracted in good faith and indeed by both spouses, both by Canon Law and by Civil Law the offspring is held as legitimate, and so has every right to the paternal inheritance, nor can he be driven away from it. And this is valid even if before the death of Ioannes himself the marriage had been declared null. But the offspring succeeds in the Case as altogether legitimate, by hereditary right, into the paternal goods, indeed even into the goods of the collateral relatives of the father or mother. C. Cum inter 2. Qui filii sint legitimi; French Civil Code art. 201, 202; Schmalzgr. l. 4. tit. 17. n. 11 seqq.; Toullier Il Dir. Civ. Franc. l. 1. tit. 5. n. 666.