XXXI. How Restitution is to be Made

How is restitution to be made? For making restitution legitimately it is required and suffices that restitution be made in that mode by which violated justice is repaired to equality; and thus the injured owner is made harmless. This is clear from the very nature of commutative justice, from which restitution is owed. And so, speaking of itself, the very thing owed, not another although equivalent, or perhaps even greater, must be given. L. 676.; St. Thomas, 2. 2, q. 62, a. 1, 2.; C. H. 1166.

Resolutions: It is not necessary of itself that restitution be made openly, that it be made by the debtor himself, that it be made with the owner adverting. Hence the debtor can restore by increasing the weight in selling, or the owed work in laboring, by simulating a donation, etc. L. 676.

Whether, restitution having been made through a simulated donation, the debtor is held to restitution if the creditor, moved by gratitude, repays another gift to him? - It is controverted. The first probable opinion affirms; because the donation of the creditor is null, and therefore the gift must be restored; for it proceeds from a false motive cause, and consequently is not fully spontaneous. The second opinion denies it; yet it does not admit this mode of restoring unless restitution cannot be made otherwise than through a simulated donation, for instance because otherwise the debtor would suffer detriment to reputation; otherwise it will be illicit. The reason is that "since this redonation is from mere liberality, to which I neither induced nor obliged my friend, I am said to be only the indirect cause of it, or I am not absolutely its cause, but only the occasion; wherefore, since the danger to my reputation is a proportionate cause excusing me from cooperation in this new detriment which the friend suffers from the occasion of my fictitious gift, I will not sin, nor consequently will I be obliged to restitution." Tamb. Expl. dec. 1. 8, tr. 4, c. I, § 5, n. 2.

In what place, and at whose expense, is restitution to be made? If the thing is owed from contract, one must stand by the convention made concerning the mode and place of transfer. If no special convention has been made, one must stand by the special laws according to the diversity of contracts; for then they are judged to have contracted according to these.

Cf. Lugo d. 20, n. 196 seqq. From C. I. 1249, 1250, 1508.; C. G. 1247, 1248, 1651.; C. H. 1168, 1171, 1500.; C. L. 744., payment is to be made in the place designated by the contract; and if no place has been preestablished, and there is question of a certain and determined thing, payment must be made in the place where, at the time of the contract, the thing itself existed. Outside these two cases, payment is to be made in the domicile of the debtor, and expenses are to be borne by the same. But as regards purchase in particular, if nothing has been established in the contract as regards the day and place of payment, this must be made by the buyer in the place and time in which the handing over of the thing is to be made.

Cf. C. A. 905, 1420.; C. B. 269, 270. - If the thing which is owed has been accepted in good faith and is retained, "all agree in this, that it ought to be done in the place where the thing is, or if the thing is to be sent to another place, that this be done at the expense of the creditor: because since the debtor was obliged neither from any fault nor from contract to anything else, he only ought to permit the owner to take his own thing." Lugo l. c. n. 193. If the obligation of restitution arises from delict, the thing must be restored in that place in which the owner would have possessed it, if it had not been taken away; or the price of the thing must be transmitted there, if the owner would have sold it; and this at the expense of the debtor. The reason is that the owner must be preserved altogether harmless; for he is not held to suffer damage from another's delict. Lugo l. c. n. 180 seqq.; L. - 597, 677, 678.; St. Thomas, 2. 2, q. 62, a. 5 ad 3.; C. A. 1420.

Whether a debtor from delict must still pay expenses for sending the thing back to the owner, if the expenses exceed the value of the thing itself? Resp. Affirmatively, if the damage of the debtor is equal, or the excess is not notable. The reason is, "for it is more equitable that the delinquent suffer that loss and lose one hundred from his own goods, than that the innocent creditor be forced to sustain the same loss in his own goods: for the thief suffers that evil from his own delict, but the creditor would suffer it without any fault." Lugo d. 20, n. 186. Resp. Negatively, if the excess is exceedingly notable. The reason is, "certainly justice, since it is a virtue and commands prudently, cannot oblige to this: because no prudent man will say that the creditor is then reasonably unwilling unless the debt is restored to him with such great expenses." Lugo l. c. n. 185. - Resp. Affirmatively, if the excess is simply notable.

But in order that some moral rule may be established, it seems it must be said that when, all things considered, the excess will not be twice as great, it does not seem sufficient that the owner be deprived of his thing; but it seems sufficient if it exceeds this proportion. The reason of fittingness is, "because, with the delict of the debtor and the innocence of the creditor supposed, there seems to be a cause twice as great that the debtor suffer at least, rather than that the creditor suffer."

Lugo l. c. n. 190. - All things considered; for one must attend not only to the material quantity of the damage of the debtor and of the creditor, but also to the quantity of the damage respectively to such a person. For it can happen that a damage of 100 lire to a rich creditor, with respect to a poor debtor, is estimated as 200 lire and more. Lugo l. c. n. 188.; L. 598, 677, 702.

Note: A lesser damage of the debtor can suffice that he defer restitution; or restore in another species, e.g., when he can more easily transmit the price of the thing. Lugo l. c. n. 188, 191. But today there is a much greater facility for transmitting the thing or the price.

Whether the debtor must restore again, if he sent the debt through a faithful person, and it perished by chance or by the fault of a third party? - Resp. Negatively, if the possessor was in good faith. For the thing perishes to the owner. Resp.

Negatively, if he owes the thing from contract. For again the thing perishes to the owner; unless it was otherwise agreed. But affirmatively, if he owes not the thing, but the price, from contract, for the debtor preserves dominion in it until it has reached the creditor. And the same must be said if he owes not a certain and determined thing, but a thing in general, of which consequently he still preserves dominion. It is controverted if he owes the thing from delict. The first opinion, which St. Alphonsus calls common and to be held, affirms. The reason is, "because a debtor from delict is held to every damage, even fortuitous, as is certain among the doctors, which comes to the owner from his unjust taking away." L. 705.; C. A. 335.; C. I. 1148. Except, however, if this person was designated by the judge, or by the creditor himself, or at least he gave the debtor the faculty of choosing a prudent and faithful person: "for then by force of his mandate he would have as accepted the debt given to such a person by his mandate, and therefore he would have remitted the right which he had to damages following, so long as the thing did not reach him." Lugo d. 21, n. 60. The second opinion denies it. The reason is that, since the debtor cannot restore in another way without detriment to his reputation, the creditor cannot be reasonably unwilling if the debtor chooses this mode, and therefore by right is presumed to consent to it. Now this presumed consent of the owner extends even to the liberation of the restitution itself, if the thing is not restored by that person, e.g., by a confessor. For the owner of the thing, if he were questioned, would rather will that restitution be made by that means, although he would have to take upon himself the danger of such a means, than that restitution not be made at all; for since it could not be made otherwise because of the detriment to reputation which the debtor would suffer, he would be excused from it. Therefore. This opinion, to which St. Alphonsus once adhered and which he does not dare to reprove, several and grave theologians judge probable. Cf. C. A. 1425.; C. I. 1241.; C. G. 1239.

How is restitution to be made for damages inflicted on the Republic? Restitution is to be made through the means established by the Government itself, if means of this kind exist. Therefore attend to the various laws of places. But if such means have not been established, some say restitution must be made through those set over taxes; others hold that the obligation of justice is satisfied if restitution is made to the poor or to pious places, from the presumed will of the government; others, and better, to the damaged persons themselves. Restitution can always well be made, as it seems, directly also to the Republic itself, namely by restoring to the fiscal office, commonly ministero delle finanze. Or restitution can also be made equivalently by burning, e.g., bonds of the public debt of the nation itself; etc. Cf. 1420.; Carriere 1240.; Ithur. Cas. 1, n. 12.