84. To Whom Restitution Must Be Made

1. Audifacius, passing through a field, from an evil intention of harming others set fire to a crop. Converted to better fruit, he now does not know whose crop that was, nor can he learn it, since he was then altogether ignorant of the roads and places through which he was passing, nor afterward did he hear anything about that fire.

Q. What as to the Case?

R. Audifacius, as an unjust damager, is held to restore. The fact that by reason of the inability in which he is placed he cannot know the one damaged does not therefore excuse him from restitution; but restitution must be made to pious causes or to the poor. “It must be said,” says S. Th. 2.2. q. 62. a. 5, “that through restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things. But an equalizing of things of this sort could not be made unless, to him who has less than what is his own, that which is lacking were supplied. And for this supplying to be made, it is necessary that restitution be made to him from whom it was accepted.... But if he to whom restitution must be made is altogether unknown, a man must restore, according as he can, by giving in alms for his salvation, whether he is dead or alive, with diligent inquiry nevertheless first having been made concerning the person to whom restitution is to be made. But if he to whom restitution must be made is dead, it must be restored to his heir, who is counted as, in a certain way, one person with him. But if he is very distant, that which is owed to him must be transmitted to him, and especially if it is a thing of great value and can conveniently be transmitted; otherwise it must be deposited in some safe place, so that it may be preserved for him, and the owner notified.” Cf. I. M. 1420 seqq.; G. 588-590.

2. “In the ninth doubt Your Lordship implores a norm concerning the conduct to be observed with penitents who have stolen from the Turks, and cannot make restitution without danger of life, since the Turks always wish to know the name of the thief. Concerning this matter the Sacred Congregation has decreed that Your Lordship should adhere to the opinion of good authors, who teach that, when restitution of things stolen cannot be effected to their owner, not even through the confessors, and on the other hand the guilty person cannot retain the thing badly taken, the value of the things stolen must be distributed to pious causes, or among the poor.” S. C. de P. F. 26 Sept. 1840; Collectan. n. 2113.

3. “1. Concerning restitution of another’s goods made in alms, although the priest and the penitent do not ignore the true owner, the Pro-vicar asks whether the confessor can leave in good faith the penitent who believes he has restored, and whether the priest can make the said restitution with alms received from others instead of from the penitent.

2. In the mountains there are some temples of idols not inhabited by the priests, but attached to nearby monasteries. In so many temples the gentiles are accustomed to leave offerings of grain or money, which afterward the Bonzes of that monastery come to collect. Some Christians, with the sole end of taking those offerings for themselves, go there with an appearance of devotion to visit them. Are they guilty of theft? And being so, to whom are they obligated to restore?

R. To the 1st. Let him consult theologians, and especially Antoine, Theol. Moral.

De Iust. et Iure, ch. 3, part 2, q. 21, resp. 1, at the end, as regards the first part of the doubt. But as regards the second, he can, unless he who gave the alms prescribed the manner in which it was to be distributed.

To the 2nd. They are guilty of simulated superstition and of theft; and restitution must be made to the priests of the temple.” S. C. de P. F.; Collectan. n. 2110.

Moreover Antoine has these things in the cited place: “If before diligent inquiry you have spent uncertain goods or debts upon the poor, you are still held to restore to the owner when he appears.... Because you have done injury to the true owner, who has the right that his goods not be alienated when diligent inquiry has been omitted, and because it is your fault that you did not find the owner so that the goods might be returned to him, when they could be returned. If nevertheless the thing still exists with the poor person or the pious place, this one is held to restore; because he who gave could not transfer ownership, which therefore remains with the owner.”

4. Seius many times in his life practiced usuries. But dying, led by repentance, he left an estate to his son, so that from its sale he might restore the usuries unduly received. Their sum was 3,000 lire; but since by the will of Seius the sale of the estate could not take place except after the death of the mother, which happened after ten years, hence the son of Seius asks whether he must also restore interest. Moreover the creditors are forty or fifty, and perhaps more on account of their heirs, and it would be very difficult to find them; nor would this be done without danger of infamy for the whole family, which is held in great honor, nor without danger of scandal, since the persons to be employed in that matter would not preserve the secret, nor could they be trusted to hand the money to the creditors. But to defer restitution longer would be a grave damage to him, and very many years perhaps would pass before he could sell the house, while he himself inwardly would be pressed by continual straits of conscience. Hence the son of Seius also asks whether he can simply hand over the aforesaid estate to some pious cause.

R. The son as heir is in no way held to pay legal interest beyond the usuries themselves unduly received. For interest is owed only from a contract, which was not present, or from judicial petition, which also was not present. Nor truly is he held to pay that interest from the damage of the creditors themselves which followed, for it is not established concerning this damage as following in reality; since rather the contrary is presumed, because, perhaps to avert damage, they spontaneously chose to accept a loan with usuries also to be paid, and perhaps in order to perceive a greater profit from it. Nor finally would that interest have to be paid from delay of payment on the part of the son himself as heir, since it had previously been impossible for him to sell the house from which, once sold, he had to restore the undue usuries, or to dispose of it in any way. But as to making the restitution itself, he can well make it to pious causes, or to the Church or to another pious Institute. For the danger of infamy standing, which would follow for the whole family; the danger of scandal standing, which would be had if an investigation of the creditors were made; the danger also standing of losing the money to be restored, without its in fact coming to the hands of the creditors; and finally the grave damage to be undergone by deferring restitution standing, there is present a sufficient excuse from making restitution to the creditors themselves; whence, according to the common opinion of the doctors, it can be made to the poor or to pious causes in place of the creditors.

But so that the solution may be more certain as to both things, both as to interest not to be paid and as to the house to be assigned to a pious cause, Pontifical authority could most fittingly be invoked here, so that each may be confirmed by way of composition; namely by remitting to the son as heir the obligation of restitution of interest, if perhaps there is any, and by assigning to the Church or to another pious Institute the aforesaid house in compensation for the usuries unduly received.

In truth, the Doctors commonly acknowledge in the Supreme Pontiff a faculty of composition not only as to ecclesiastical goods, but also as to profane goods, when the creditors of the debt are uncertain; by force of this faculty one part of the debt is remitted and the other part is applied to some pious cause. The foundation and reason of this power is that, on account of the excellence of the pious cause, and on account of the fragility of men and the danger of restitution not being made, and for preventing the sins of subjects, it is judged equally or more good in order to the common spiritual utility than if the whole obligation of restitution were left to the debtors. Lugo, de Iust. et Iure d. 21. n. 92.

That is to say, this pertains to the Supreme Pontiff, either on account of high dominion as to ecclesiastical goods, which is in his possession; or, as to profane goods, insofar as he can indirectly govern temporal things, when this is necessary for the spiritual good. Lugo, l. c. n. 107.

Moreover, Composition is admitted not only when the creditors are uncertain, but also when because of their absence and distance the debtor is excused from restitution. For these two cases are altogether equated, because in each case the restitution which would have to be made would have to be made to the poor or to pious causes, in place of the owner to whom restitution cannot be made. And thus in each aforesaid Case composition can be made through the Bull of the Crusade, Lugo l. c. n. 139.

For Composition is admitted for any thing whatever badly had in whatever way, while those to whom restitution legitimately ought and can be made cannot be known. But in that case of absence and distance, although the creditor is known, restitution nevertheless ought not and cannot be made to him, and so the matter stands the same as with an uncertain owner, because the owner is truly not known, namely he to whom restitution ought and can be made. Lugo l. c. n. 139.

Now, just as the case of the absence and distance of the owner is equated, as to composition, with the case of an uncertain owner, so also the case of impossibility of restitution from the uncertain effect of it if it is made, and also from the scandal and infamy which would follow from it, is equated with the case of impossibility of restitution from the absence and distance of the owner, since also in this case of impossibility of restitution to be made from a delict, it must be made to the poor or to pious causes, whether by human law alone or also by natural law, as the doctors more truly hand down. Lugo, l. c. n. 91.

Hence it is plain that in the proposed Case there is present in the Supreme Pontiff the faculty of Composition, by sanctioning, for the greater tranquillity of conscience of that son as heir, that he restore to his Church or to a pious cause. For the owner is uncertain in altogether the same way as in other cases. Although he is known, nevertheless restitution ought not and cannot be made to him; which consequently, with composition intervening by the authority of the Supreme Pontiff, can well be made to a pious cause, and by it at the same time the son of Seius is fully freed from any other obligation which he perhaps has, whether as to interest, or even as to the very usuries badly received by his father.