XXI. On Restitution from Unjust Taking

Whether there is an obligation of restitution from unjust taking; what in a case of doubt? It is undoubted that from the unjust taking of another's thing an obligation of restitution arises. For if another's thing has been unjustly accepted, it is possessed either by no title or by an invalid title; and therefore that thing cries out for its owner.

Inst. l. 4, t. 1, 2; St. Thomas, 2. 2, q. 62, a. 6; L. 548. But one thing can be asked here: Whether someone unjustly accepts another's thing when he begins possession with doubt concerning his right. Now in truth, he could begin possession here in two ways: 1. By despoiling another, without any title of itself able to transfer ownership; and in this case, since the peaceful possession of another gives a morally certain right, the despoiler is bound to restitution. 2.

By accepting a thing under another title, e.g., of purchase, donation, etc., from another concerning whom it is doubted whether he is its owner; and then one is bound to inquire into the truth of the matter, and, if doubt perseveres, "he must restore," says Father Gury, 652, "according to the proportion of the doubt, to the probable owner, or to the poor, if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor from another source does he seem bound to restore the whole, since he doubts whether the thing is another's and not his." But even if that doubt is not merely negative, but positive, he seems to be held to nothing; for he can then form conscience from reflex principles: no one is evil unless proved, etc.; nor from another source can a certain obligation be imposed which certainly is not established. Moreover, he can use the right of him to whom he succeeds by title of purchase, donation, etc. Wherefore, if that one possessed the thing in good faith and therefore could retain it, the one who succeeds him will also be able to retain the same thing for himself. Lugo d. 17, n. 83. Finally, he can retain the thing by title of occupation or possession until the owner appears; and if he does not appear, it can rightly be presumed that no owner is present, if, e.g., someone found a gem on the shore of the sea and doubts whether the thing belongs to no one, or was lost by some traveler. Cf. here 1334. But to what one retaining and continuing possession with doubt concerning his right is bound, cf. 1352-1354. - St. Thomas, 2. 2, q. 62, a. 6; L. 547, 625; Gousset 939, 1028; d'Annibale, ed. 4, p. 2, n. 121.

From what fault does the grave obligation of restitution arise in delicts? It arises only from broad juridical fault joined with grave theological fault; likewise from light and very light juridical fault when someone, by grave theological fault, omits that diligence which he was bound under grave obligation to employ. "The reason is that restitution is commonly accepted as a penalty; and therefore we say that, in order that due equality be preserved, for the grave obligation of restoring a thing of grave value, grave theological fault is required. Theological, because since conscience is burdened concerning the obligation, it is necessary that there have been a delict in conscience. Grave, because in order that conscience be held to a grave obligation, it is necessary that the fault have been grave." L. 550, 551; C. A. 1295; Inst. l. 4, t. 3, §§ 6, 7. Cf. n. 1072.

"Whether a venial sin against justice induces the obligation of restoring? If it is venial by reason of smallness of matter, it certainly obliges to restitution under light obligation. But if it is venial by reason of inadvertence or indeliberation... The first opinion affirms.... Yet the second, more probable and more common opinion... teaches that in that case there is no obligation of restoring... neither under grave nor under light obligation. Not under grave, because a grave obligation does not have proportion with that light fault. Not under light, because a light obligation does not have proportion with a grave thing." L. 552.

Whether from a light sin against justice because of smallness of matter there can sometimes accidentally arise a grave obligation of restoring?

Resp. "Affirmatively, and the case is when in the last little theft, completing grave matter, the thief does not advert to the past little thefts; for then he is held under grave obligation to restitution at least of the last little theft.... The graver obligation then does not arise from that last unjust taking... but arises from the unjust retention of grave matter already culpably accepted." L. 553. And in the case of damage inflicted, when this is now grave, grave sin is now present, and the owner certainly is gravely unwilling if it is not repaired. E. M.