XXVI. On Restitution from Law or from Sentence of a Judge

Whether in the remaining laws, while juridical fault stands, someone is bound to restitution before the sentence of the judge, and after it can compensate himself? - St. Alphonsus, 554, speaks of juridical fault, whether it alone, without theological fault, suffices for imposing restitution, and says: "Those laws which in certain cases altogether command restitution indeed oblige, even if sin is absent, but not before the sentence of the judge." But one condemned by a judge "to repair damage because of juridical fault can by no means compensate himself for such reparation, because the sentence of the judge for the internal forum also stands by the one suffering damage." Ithur., Cas. 27, n. 4.

Civil fault is justly restrained, because it is a matter of avoiding common danger of damage. - Therefore, although an owner is not bound to repair damages inflicted on a neighbor by his animals without his theological fault before the sentence of the judge, nevertheless he is bound after the sentence, nor can he thereafter secretly compensate himself. - Hence also "although precisely for life, member, killing, there is no obligation of restoring, nevertheless through the sentence of the judge the one injuring is compelled to satisfy for the injury." L. 631. - If in order to avoid damage, damage is caused to another, compensation is owed to him by him in whose favor that damage was inflicted. Thus according to C. L. 2396 seq.; C. A. 1320 ff.; C. I. 1154, 1155; C. H. 1905 ff.; C. L. 2394, 2395; Inst. l. 4, t. 3, 5.

"Whether he who by frauds or lies, or false witnesses, prevents goods from being applied to the treasury which because of a crime, e.g., of a toll not paid or another, would be assigned to the treasury, is bound to restitution? - Resp. With Lessius... and others very commonly, that after sentence he is certainly bound; but otherwise before sentence, because before sentence the treasury has acquired no right to the penalty, which is not owed except after sentence; or because at least this right of the treasury to penalties is commonly accepted thus." L. 583. But cf. here 1367.

intervening. Consequently, civil law produces such an effect of restitution to be made in only a twofold case:

1. When by the fact itself it transfers ownership, as are the laws of prescription.

2. When again by the fact itself it impedes transfer of ownership, as are laws invalidating contracts by the fact itself, and laws decreeing the legal price of merchandise. Wherefore in no way is someone bound to a fine or to restitution before the condemnatory sentence of the judge, or at least a declaratory one, if the law is penal, or merely prohibitive but not invalidating, or even invalidating, but only by right, not by the fact itself.