Case LIX: Restitution on Account of Incendiarism

A fire broke out in a village which partly destroyed a certain house of Mr. N. N. The owner was insured, but nevertheless suffered a loss of about $4,000, which was all the harder for him to bear, as he, after toiling and laboring throughout the entire year, at its end considered himself fortunate if he was not in debt, there being no capital or savings. How the fire started, whether caused by negligence or by some malicious hand, could not be ascertained. Sometime had elapsed when there came to the confessional of Father Sempronius a woman who confessed having been the incendiary, in about this fashion: "Your Reverence, I was the incendiary! I set fire to the property, and did it out of revenge because the farmer had given me notice to leave. I regretted it immediately, and even attempted to put out the flames, but it was too late. I know that I have committed a great sin. It gives me no peace, day or night, and I am ready and willing to make restitution as far as lies in my power. Of course I can not make up the loss entirely, as I am only a poor servant-girl. I have saved so far $400, this I will relinquish no matter how hard it is to do so. But, Reverend Father! what shall I have to do with my future savings? I can save yearly eighty or ninety dollars. If I could keep this I should have a prospect of marrying. If, however, I must sacrifice all my earnings, I can never think of marrying, and shall eventually become a burden upon the community. Still I know that I have sinned grievously, and will abide by what your Reverence says, if only I may clear my conscience of this sin."

What answer will Fr. Sempronius have to give to this penitent, whom we will call Pelagia, so that the strict requirements of justice and restitution may be complied with, and also that a too difficult burden may not be laid upon Pelagia, which, though lived up to in her present grievous remorse, would later be found impossible to bear?

The answer is really very simple. It is evident that Pelagia, simply because she was after her unfortunate deed immediately seized with contrition, and because of the fact that she sought to extinguish the fire, is not excused from restitution. At the moment of causing the harm, she was conscious of the injurious consequences of her action, and hence her act must be considered as morally voluntaria and therefore grievously sinful. As the same was also causa efficax damni, all the requisites for the obligation of restitution are present. But according to the moralists the damnificans is wholly or partially excused from restitution when, and for as long as there would arise for him a notabiliter greater damnum than that which the damnificatus himself has suffered. (Alph. IV, n. 697.)

Let us examine if this is not Pelagia's case. All she has with which to make restitution are the savings from her wages. As regards the $400, which she has laid aside, one could not oblige Pelagia to part with the entire sum at once, for in case of emergency she would be left wholly without means. How about her future savings? Will she be obliged to give them all up for restitution? First of all Pelagia is entitled, ex jure naturae, to lay aside so much of her savings, that in her old age, in case of inability to work or other impediments, she may be able to support herself. No one can or should expect of her to deprive herself of the most necessary means in order to make restitution, for otherwise she would become a burden to the community and lead a miserable existence. That would be nimis durum! And why, in conclusion, should a third party—namely, the community, be made to contribute toward a restitution which is strictly a matter ad personam for Pelagia? In examining to what extent Pelagia should apply her savings in making restitution we must furthermore take into consideration the following circumstance. If Pelagia can not retain her savings, then she will have little hope ipso facto of winning the security and protection of wedlock; for if she has not at least some money it will be a hard matter for her to find some one to marry her. In her savings alone she has a possibility of entering the married state such as she desires. Though the duty of making restitution will not cease for Pelagia in the married state, she would presumably be able to do little or nothing toward making good the harm she has caused. The requirements of household and motherhood would probably demand the little that she might be able to earn herself. Must she on this account renounce all idea of marrying? Is not Pelagia entitled ex jure naturae in the event of a chance offering itself? Even the ecclesiastical marriage laws know of no prohibition in our case. To remain unmarried for life, a state for which she had neither inclination nor vocation, would be expecting something akin to heroism on Pelagia's part, and a renunciation of the married state would without doubt be a far greater incommodum than the damnum to the injured party if in the married state she is unable to make further restitution: besides, there would be the dangers toher soul if unwillingly she were made to lead a life of celibacy. There would therefore be a damnum altioris ordinis present in consequence of which Pelagia would even be in conscience bound to enter into matrimony, if there was a possibility of her doing so.

Hence there apply in our case the principles “No one is bound to make restitution at a loss to himself very much greater than the creditor’s advantage” (Kutschker: “Doctrine of Restitution”), and “A good of a lower order is not to be restored to the detriment of an equally grave good of a higher order” (ibidem), inasmuch namely as matrimonium belongs to a higher order of good than the mere material bonum which the injured farmer would receive if the persona ad compensationem obligata did not enter the married state. If therefore the obligation of restitution can not be insisted upon to the extent that Pelagia must on that account renounce a natural right, such as the married state, then one must also allow her the means necessary to obtain this natural right. In other words, Pelagia can not be bound to devote her future savings to restitution to such an extent that because of it she can not hope for a possible matrimonial alliance. Nay, more, if one reflects how trifling her savings are in reality—what are eighty or ninety dollars a year? provided of course she avoids all unnecessary outlay—one could ask her at most to give up a trifling part, or more probably, none whatever, from these small savings so long, at least, as there is a probability of her getting married. Should Pelagia however not enter the married state, she would only be called upon, as we have already mentioned, to deprive herself of so much of her savings, past and future, that she will not be left entirely without means in her old age, or in the event of inability to work. If she should possibly have poor parents to support besides herself, then, of course, this natural duty of filial affection would take the place of the duty of making restitution. In the event of Pelagia's ever becoming possessed of considerable means, by inheritance, for instance, she will, of course, be obliged to use such moneys for restitution in so far at least as she does not necessarily require them for her own needs.