85. Various Circumstances of Restitution

1. Forbinus stole a huge quantity of wine, then of the value of 1000 lire, which its owner was going to keep so that he might sell it in the month of May, hoping to be able to sell it for 1200 lire. Forbinus kept the wine until the month of November, and then, the price of wine having increased, sold it for 1400 lire.

Q. 1. How much must be restored? — 2. How much must Forbinus now restore?

R. To the 1st. Cf. I. M. 1424 seqq. — To the 2nd. Forbinus must now restore 1400 lire. For since he no longer has the wine, he must restore its equivalent, which is the aforesaid price. For then, when he sold the wine, just as the wine, so the price of the wine pertained to the owner of the wine, and Forbinus then had the obligation of restoring the wine, and so of restoring it according to the value which it then had. Because just as the wine, so the wine according to its increased value pertained to its owner. Therefore that obligation, the sale of the wine having been made, did not cease, but remained even after the sale. Therefore Sabinus [printed: Sabinus; sense requires Forbinus] is held to restore the whole price accepted. Besides, if Forbinus in the month of November had restored the wine, as he ought, to its owner, this owner, who wished to sell the wine in the month of May, then hoping for a profit of 1200 lire, would certainly then have sold it, and would then have obtained a profit not of 200 lire, but of 400 lire. Therefore, if Forbinus does not restore 1400 lire, but restores either only 1000 lire, or at least 1200 lire, he does not restore to the owner of the wine the whole of that which is his, nor does he render him unharmed by reason of ceasing profit. I. M. 1346, 1424; G. 616.

Nor is it valid here to object that that excess is the fruit of his own industry, by reason of the sale made. For just as knowingly to accept another’s thing is an injurious action against justice, so also knowingly to detain another’s thing is against justice, and so too knowingly to sell another’s thing is an injurious action against justice. Wherefore in the Case someone would truly become unjustly rich from another’s thing, with the injury of another, by unjustly impeding another’s profit. Therefore that whole price, since in the Case it is nothing except the fruit of a merely unjust sale, is owed to the owner of the thing.

2. Tetradius, Nicodemus, and Carolus stole 6,000 lire from Hector. Tetradius, repenting of the deed, while Nicodemus and Carolus were unwilling to restore, restored the whole sum of 6,000 lire to Hector. Carolus having died, Nicodemus, rather late converted to better fruit, asks his confessor to whom and how much must be restored.

Q. 1. In what order must restitution be made? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1429 seqq. — To the 2nd. Since Tetradius, Nicodemus, and Carolus, by common consent, as is deduced from the Case, stole the aforesaid sum together, they are held to restitution in solidum. I. M. 1425 seqq. Wherefore, Nicodemus and Carolus being unwilling to restore, Tetradius was held to restitution of the whole sum toward Hector; and so he did well by restoring it all to Hector. Complete restitution having been made by Tetradius, Nicodemus and Carolus are no longer held to restore to the same Hector, but they are held to render Tetradius unharmed, by restoring to him what they themselves should have paid to Hector, namely each one of them ought to restore to Tetradius the sum of 2,000 lire. “Because restitution is principally ordained to removing damage from him from whom something has been unjustly taken away, therefore after sufficient restitution has been made to him by one, the others are not held to restore further to him, but rather to make reimbursement to him who restored, who nevertheless can condone.” S. Th. 2.2. q. 62. a. 6 ad 3. “When one restores to him who suffered damage, another is not held to restore to the same one. But those who are principal in the deed, and to whom the thing came, are held to restore to others who restored.” S. Th. 2.2. q. 62. a. 7 ad 2.

Moreover Nicodemus must restore to Tetradius the sum of 3,000 lire. For if the three thieves wished to restore, each would restore his own part, namely the sum of 2,000 lire. But since Carolus previously was unwilling to restore, and now can no longer restore, because he is dead, and from another source each one is held to restitution in solidum, hence it happens that the whole damage inflicted by the three must be compensated by two only, namely by Tetradius and Nicodemus; and so each one is held to half part of the damage, namely to restoring 3,000 lire. But the whole damage was compensated by Tetradius, and therefore he himself suffered damage. Therefore the damage must now be compensated to him, and compensated for the half part of the whole damage previously inflicted, since Carolus was unwilling to restore, and now can no longer restore.

3. A certain unknown pilgrim asked Augustine, a priest, to celebrate 50 Masses according to his intention, at the same time handing to him a folded banknote, saying, behold for you a slight stipend of 100 lire. But after that pilgrim had now departed, Augustine, unfolding the banknote, sees that there is not one note of 100 lire, but two. Since it was impossible for Augustine to find the pilgrim so that he might restore to him one hundred lire, he retained them for himself, and instead of celebrating 50 Masses, he celebrated 100 Masses for the pilgrim.

Q. 1. How must restitution be made? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1447 seqq. — To the 2nd. There does not seem to be doubt that the pilgrim erred by handing over 200 lire for 100 lire, which he offered to the priest for the celebration of Masses. Wherefore the other 100 lire must be restored to the pilgrim. But since it was impossible to find the pilgrim and to make restitution to him of the 100 lire, Augustine seems to have satisfied his obligation altogether sufficiently by celebration of another 50 Masses. For first, those 100 lire could well be held as a lost thing, and Augustine consequently could simply retain them for himself, the impossibility of finding the pilgrim standing. Besides, they could be distributed in alms of the poor and in pious causes. Finally, since in the Case an equivalent cannot be recompensed, it suffices that what is possible be recompensed. Moreover, in the Case compensation is possible by celebration of Masses, which, from the petition made for the other 50 Masses, will certainly be according to the intention of that same pilgrim, reasonably altogether presumed. In truth, when someone has stolen, e.g., a horse, and the horse dies by his fault, since he can no longer restore the horse, it suffices that he restore the price of the horse, or compensate the horse taken away by another equivalent thing. Why therefore in the Case, since restitution of 100 lire is not possible, can that restitution not be made in the one possible mode, namely by the celebration of Masses? I. M. 890, 893, 1447; G. 710, 715; S. Th. 2.2. q. 62. a. 2 ad 1, ad 2; a. 5 ad 3.

4. Octavius received gratuitously and entirely as a loan from Curtius a huge sum of money, to be restored after two years. Meanwhile Curtius dies, and, the two-year period having elapsed, his natural heirs do not demand restitution of the aforesaid sum from Octavius, since they are ignorant of the aforesaid contract of loan. But Octavius has parents placed in grave necessity, whom in the present he could no longer sustain if he restored the aforesaid sum. Wherefore he asks his confessor whether he can defer restitution.

Q. 1. When must restitution be made? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1455 seqq. — To the 2nd. Octavius seems able to defer restitution, by reason of the grave necessity in which his parents are placed, and which, restitution having been made, would be changed into extreme necessity. For this reason is sufficient for delaying restitution. Nor truly from the Case does it appear that the heirs of Curtius are placed in the same necessity, as is drawn from the very fact that Curtius gratuitously and entirely gave that huge sum as a loan to Octavius. I. M. 1464. “When someone cannot restore at once, the very inability absolves him from making restitution at that instant; just as also he is totally absolved from restitution if he is altogether unable.” S. Th. 2.2. q. 63. a. 8 ad 2. “It must be said that someone ought to satisfy, from that which is proper to himself, rather his parents, or those from whom he accepted greater benefits; but one ought not recompense a benefactor from another’s goods; which would happen if what he owes to one he restored to another; unless perhaps in a case of extreme necessity, in which someone could and ought even to take away another’s goods, in order to help his father.” — I. M. 1455, 1459; Lugo d. 20. n. 127, 128.

5. Seius owes to Philippus, from a contract of sale, a huge sum of money. The constituted day of payment has now elapsed, and Seius begins to pay the aforesaid sum by parts, saying to Philippus that he cannot now restore it all at once. But the reason is not that he himself is unable to make full restitution, but because from the aforesaid money he himself perceives an emolument. — Does he act rightly?

R. Negatively, unless the consent of Philippus accedes. For the constituted day of payment having elapsed, the obligation now urges of no longer retaining another’s thing. Nor truly does the reason brought forward help, because he perceives an emolument from the money. For since that money is now owed to another, just as it is no longer lawful to retain it, so neither is it any longer lawful to perceive an emolument from it. Otherwise Seius could for this reason indefinitely defer the payment of the money, and since he now has the thing bought, whose fruits he himself now perceives, he would at the same time retain its price and perceive all its advantage, which certainly is against justice. If this reason of perceiving an emolument sufficed for deferring the restitution of money or of another alien thing, even a thief for the same motive could retain with himself at least for a time a notable sum of money, gradually restoring it by parts; which is altogether foreign to the truth. Casus Consc. Bonon. Dioec. year 1759, month of August, Case 3; I. M. 1132, 1455.