XXVIII. To Whom Restitution is to be Made

To whom must restitution be made? Restitution must be made to the certain and known owner whose right has been injured, whenever it can be done without grave difficulty and injury to another, and no other cause excusing from restitution is present. For through restitution all things return to their former state.

Hence he who has taken away a thing deposited with another, or leased or lent, must restore not to the owner but to the possessor himself. For the possessor cannot without injury be deprived of the right of custody, use, or possession, unless he himself consents. L. 596, 599.; H. A. 64.; St. Thomas, 2. 2, q. 62, a. 5.; C. I. 1241.; C. G. 1239.; C. A. 1424. Cf. 1343, 1351.; D'Annib., ed. 3, p. 2, n. 242. From C. I. 1243.; C. G. 1241.; C. H. 1163.; C. A. 1424., payment made to a creditor is not valid if he was incapable, unless it is proved that what was paid fell to his utility. On the contrary, from C. I. 1242.; C. G. 1240.; C. H. 1164., payment made in good faith to him who possesses the title of the credit is valid, even if afterward the possessor of the credit suffers eviction, for the possessor is held as the legitimate owner.

To whom is restitution to be made when it is uncertain, whether unknown or doubtful, to whom the thing owed belongs? "When goods to be restored, or whatever debts, are uncertain, i.e., you do not know him to whom they are owed, or you cannot approach him, or restore to him; then if you have them without delict, as if you found them, or from a merchant, e.g., through error received two ells of cloth for one, and now he has departed, nor do you know where he has gone, you are held to employ some diligence in inquiring; after which, if there is no hope of knowing the owner, it is probable that you are not held to give them to the poor ... but can retain them for yourself," as if found.

L. 580. And this is valid both then when the owner of the thing does not know with whom his thing is found, and then when he himself knows with whom his thing is, as, e.g., if an unknown traveler left a thing in a public inn. For if he in no way claims it, and otherwise it is impossible to know him, the thing is understood as abandoned. But since it has not been lost, it will have to be restored if it is sought again. For the cause of possession cannot be changed.

Without delict; for a possessor in bad faith restores to the poor or to pious causes. For no one can become rich unjustly from another's thing. And if there is question of debt by reason of damage inflicted, restitution is also to be made to the poor or to pious causes. But if the owners are uncertain or doubtful, restitution is to be made to those to whom the thing more probably or probably is owed.

If the owner of the thing is uncertain or doubtful only among a few, e.g., three or four, "then restitution cannot be made to the poor, but the thing is to be divided among those among whom the defrauded person exists." But if the uncertain or doubtful owner is among many, e.g., among the inhabitants of a place, "then restitution must be made to the poor, as is had in C. Cum tu de Usuris.... Moreover it suffices that it be made to the poor of any place whatever. It also suffices that it be made to pious places, as they commonly teach.... But if many and various uncertain owners of some community have been affected by damage, then restitution is altogether to be made to the poor of the same injured community." L. 590, 595, 596.; St. Thomas, 2. 2, q. 62, a. 5 ad 3. "If, in the case in which you are held to restore a thing to the poor, you give it to yourself, truly needy, then indeed, even if afterward you are made richer, you are still not held to restore." L. 696.; Lugo d. 20, n. 8.; L. 580.

Whether, in the case of an unknown owner, restitution is to be made to the poor from natural law, from the presumed will of the owner, or from canon law, is a question among the doctors. From canon law. Namely, the restitution to be made to the poor of gain wrongly received from office, C. Cum sit 16. de Iudaeis etc., and from usuries, C. Cum tu 5. de Usur., is extended to all debts arising from delict. But this same disposition of canon law seems to be sought back from natural law, namely that, by that restitution made to the poor in place of the owner, society itself may be made harmless, and so provision may be made for its security; for theft both injures the peace and concord of private persons among themselves and injures the common good and commerce of society. Moreover, since the thing cannot be restored to its owner, nature itself and the presumed will of the same owner require that it yield to his spiritual utility.

"It is to be noted that concerning these uncertain debts a composition can well be made by the Bull of the Crusade.... This composition can also be made through the Sacred Penitentiary.... This composition is usually also conceded for ecclesiastical fruits wrongly received." L. 591, 593. Uncertain, namely, if the owner is unknown, and it is no longer probable that he will ever appear. Composition; to compound is for the Holy See to remit the debt in part, the other part having been expended for pious causes. In order that the composition be licit and ratified, a just cause is needed as regards uncertain debts; and when it has been duly made, even if the owner appears, no restitution any longer belongs to him. But in order that it be ratified as regards ecclesiastical fruits, when these are exacted from a canonical penalty, no just cause is needed, because it falls into a dispensation of the law. - Lugo d. 21.; E. M.

Resolutions: If someone selling in some city has defrauded many in weight or price, restitution is to be made by increasing in the same way the weight or measure, or by diminishing the price toward ordinary buyers, who are presumed to have been damaged, if this can easily be done; otherwise restitution is to be made to the poor.

Whether, when your creditor was forced to make cession of goods, you ought to restore to him or to his creditors? Generally speaking, you ought not to restore to your creditor, but your debt must be manifested by you to his creditors. The reason is that although the creditors of the one ceding do not have direct dominion over his goods, nevertheless they enjoy a strict right that they be preserved harmless from those goods. Yet sometimes you could restore to your creditor, e.g., if the debt is small, if he is upright, and you believe that he will restore to the creditors; likewise if he is in grave necessity, and greatly needs that debt in order to sustain life, because, as theologians commonly teach, one ceding his goods can withdraw those things which are altogether necessary for living. L. 699.; Gousset 772.; C. H. 1914.