Case XXI: A Case of Restitution

Mary is a servant employed in the home of Mr. Smith. From time to time she is commissioned by her employer to purchase certain things for his home. He orders her to purchase them at a particular business house that he names, and fixes the price that she is to pay for them. Mary, however, purchases them at another business house, where she gets them cheaper, and she keeps the difference for herself. She justifies herself by saying that the difference in price represents the fruit of her own industry, and, therefore, belongs rightfully to her. Moreover, she claims that she is underpaid by her employer, and that this difference in price makes up the shortage in her wages. Is Mary bound to make restitution, either to the business house from whom she failed to make the purchases, or to her employer?

1. Mary is not obliged to make any restitution to the firm from whom she failed to purchase the goods. The reason why she is not so bound is because she did not sin against the virtue of commutative justice in not buying the goods from that firm, and only commutative justice imposes an obligation of making restitution. It is assumed, of course, that there were no other indirect considerations or circumstances which might bring the case under the virtue of strict justice. For, although, after a fashion, it might seem that Mary did an injustice to the firm from whom she failed to make the purchases when she had been ordered to do so by her employer, in defrauding them of a just profit that they might have realized on the sales, nevertheless, strictly speaking, Mary did not do them any real injury, since they had no strict right to such profit, either real or personal. Neither can it be maintained that the firm had at least a right ad rem to the profit that they would have realized from the sale of the goods, since that profit was intended for them by Mary’s employer, who ordered her to purchase the goods from this particular firm. Because Mr. Smith ordered his servant Mary to purchase certain goods, at a fixed price, from a particular firm, it does not follow that Mr. Smith intended to convey to that firm a strict right to the profit resulting from such purchase and sale. All that follows from orders such as Mary received, is that the employer desires to be furnished goods to his liking, with the guarantee that a particular business house furnishes, and if he intends the profit to go to that particular house, still he does not, under ordinary circumstances, make a conveyance of strict right to such profits to that particular firm. We say, under ordinary circumstances, because there may be cases in which, owing to peculiar circumstances, the employer might desire to convey to some particular business house a strict right to the profits of such sales, as, for instance, if Mr. Smith should enter into a contract with a particular business house to purchase a certain line of goods from them, uniformly, in consideration of which agreement, the firm contracts to furnish the goods at a uniform price, irrespective of market prices at any particular time prevailing. In this case, of course, the firm would have a strict right to make the sales and to realize the profit, and Mary dare not substitute another firm without incurring an obligation of restitution, since she does a real injury to the firm that holds the contract with Mr. Smith, violating their strict rights. But apart from particular cases, and under ordinary circumstances, an order such as Mary received from Mr. Smith implies no conveyance of strict right to profits to any particular business house, and, therefore, the transgression of such an order does not induce an obligation of restitution.

2. But Mary’s case stands quite different, if we view it in relation to her employer, Mr. Smith. Mary is bound to restore the difference in price to Mr. Smith, even though the goods that she purchased elsewhere for less money are equally as good as what she would have obtained at the firm designated by Mr. Smith. The reason is that Mary has no claim or title to the difference in price. The money that Mary received from her employer belongs to the employer until it is spent. The employer, in handing over to Mary a certain sum of money with which to buy goods, does not relinquish to Mary his ownership of the money, but simply makes Mary his agent and entrusts to her his property, in as far as the same is necessary for the purchase of certain goods. Mary is obliged, both by reason of her position as agent for Mr. Smith, and the salary or wages that she receives, to give her labor to Mr. Smith, and to safeguard his interests. This is the duty of agents and the profits of their industry and sagacity belong to the employer who hires them and pays them precisely for this. “Quidquid parcit, parcit domino.” The fact that Mary would have spent all the money given her by her employer, had she bought the goods from the firm designated by Mr. Smith, without any advantage accruing to her employer, does not change the case. The money that she has over is Mr. Smith’s money, and res clamat domino. Mr. Smith has not abdicated his right to his money, or to that part of it which is still in the hands of his servant, nor has he conveyed any rights in it to Mary. It is the same as if Mary had saved the money from Mr. Smith’s house, while the same was being destroyed by fire; the saving of the money or the rescuing of property from destruction by fire, does not transfer ownership of the money or property from the owner to the rescuer. The money belongs to the original owner, in this case to Mr. Smith, and must be restored to him. The reason that Mary urges in justification of retaining the difference in price, namely, that the difference represents the fruit of her own industry, is hardly a valid reason. In some particular case we can see how it might be, but ordinarily there is no special industry manifested in a case like this, nor is there any extraordinary sagacity or special labor required, any more than what the ordinary run of servants would quickly put in evidence if it were just and right to profit by it.

Nor is the other reason that Mary advances to justify her conduct a good and valid reason, namely, that she is underpaid and the profit that she makes on her purchases makes up the balance of the wages that she thinks are due her. She contracted with Mr. Smith of her own free will to work for a certain wage, and she can not of her own authority increase her pay. She must keep the contract. If secret compensation were allowed to servants in cases like Mary’s, the door would be opened to all kinds of stealing. Innocent XI was assuredly right when he condemned the following proposition: “Servants and domestics are allowed to take secretly from their employers enough to compensate them for their work if the same exceeds the salary they receive.”

“Male and female domestic servants may secretly take from their masters in order to compensate for work which they judge to exceed the salary they receive” (Prop 57, damnata ab Inno, XI).