XXV. On Restitution from Contract

Whether there is an obligation of restitution from contract? Restitution is the restoration of damage given. But damage is said from taking away. Wherefore restitution properly supposes something taken away and as it were diminished from our things. Hence the things which someone owes to another precisely by force of contract or quasi-contract, e.g., by force of sale, purchase, mutuum, commodatum, etc., he does not restore, but renders, as though giving back. Nevertheless, as restitution truly belongs by nature and by law, so also it can belong by pact. And thus, if a borrower by evil deceit broke vessels lent to him, by natural right he is held to restitution.

If by civil fault he did not guard them and lost them, by civil right he is held to restitution. If he took a fortuitous event upon himself, he is also held to restitution, not from natural or civil right, but from pact. Likewise someone is held to restitution and compensation of damages from pact when it is not fulfilled, or if he is constituted in delay. And the same obligation of restitution arises from quasi-contract: "as Princes, who are bound to preserve justice in the land, if robbers increase through their defect, are held to restitution; because the revenues which they have are as it were stipends instituted for this, that they preserve justice in the land." St. Thomas, 2. 2, q. 62, a. 7. - C. I. 1218 ff.; C. A. 919, 1295; Inst. l. 3, t. 14.

Whether theological fault is required to induce the obligation of restitution for damage inflicted on another's thing, which was detained from some contract, e.g., of commodatum, deposit, lease, etc.; or whether juridical fault suffices? - There is a twofold probable opinion in this matter, one affirming, the other denying, concerning which we have already spoken in n. 1072.

Whether theological fault is also required for the obligation of restitution because of damage inflicted on another in fulfilling an office, or in observing a quasi-contract, e.g., if a physician from inculpable error furnished a harmful remedy to the sick person? - Resp. Affirmatively, more probably. The reason is 1. because the obligation of restoring because of merely juridical fault in an office, or in a quasi-contract, cannot be proved either from natural law, or from positive law, or from the agreement of the parties. 2. Because such an obligation would be harmful to the public good; for from it upright and God-fearing men would be kept away from undertaking the affairs of others, as well as from public offices. - Except nevertheless: 1. If someone undertaking some office expressly promises that he will employ such diligence; for thus he is obliged from special pact, especially if for this reason he accepts a greater stipend. 2. When he tacitly promised such diligence, e.g., by boasting that he is better and more learned than others, and thus preventing the other from seeking one more learned or more diligent; for thus he deceived the other, and consequently is held to the damage following from his ignorance or negligence, even if this in itself was not theologically gravely culpable. Cf. 1072; Ithur., Cas. 27, n. 20; Gousset 923; C. A. 1299, 1300, 1306; Inst. l. 4, t. 3, §§ 6, 7.

What is owed by reason of delay? If the obligation is in a certain sum of money to be handed over, which was not handed over at its own time, legal interest must be paid from the day on which the debtor is in delay, without the creditor being bound to prove the damages which he suffered, C. I. 1231; C. A. 1333. Indeed, from the day of judicial petition, or of special agreement entered into after the time of restitution has elapsed, interest of interest is owed. C. I. 1232. Cf. here 1105, 1106; C. A. 1335. If the matter of the contract is not money, but another thing, and the debtor is in delay in handing over the thing, the thing remains at his danger, although before the delay it was at the danger of the creditor. C. I. 1219. If compensation of damages has been determined by agreement, one must stand by it, C. I. 1230. Otherwise, with deceit not intervening, only damages are to be compensated which were foreseen, or could have been foreseen at the time of the contract, C. I. 1228. But with deceit intervening, all damages must be compensated which directly and immediately come from the unperformed fulfillment of the obligation, C. I. 1229. - C. A. 912, 913, 1324, 1333; L. 704.

Whether there is an obligation of restitution from the sentence of a judge? There is no doubt that an obligation of restoring is present from the juridical sentence of a judge. This is established 1. from the common opinion of theologians; 2. because civil power also, when it legitimately commands, has the force of obliging in conscience. But the civil magistrate commands legitimately, whether according to law he imposes a fine to be paid, or also according to the same law settles lawsuits regarding property. Therefore. But that these laws are just is clear again 1. from the common authority of theologians; 2. from the fact that among all civil nations these laws have flourished and do flourish; 3. because these laws are especially necessary for the right rule of civil society and its common good, whence civil authority can in no way lack the moral faculty of making such laws. L. 631, 641, 711, 927; St. Thomas, 2. 2, q. 62, a. 3; q. 66, a. 5, ad 1.

Whether there is an obligation of restitution from law? There is likewise no doubt, as is established from what has just been said, that an obligation of restoring is present immediately from the law itself, even with no juridical sentence of a judge