Case XXII: Moral Impossibility of Restitution

Case.—The Curate of X. was called hurriedly to a dying man, whom we may call Paul. In his confession Paul said that one thing especially gave him great worry, namely, the fact that he had misappropriated property. Many years ago, while he was bookkeeper for a merchant, and pressed for money, he had taken two hundred dollars, and the theft had never been noticed. Now, however, he intended to set this matter right in order that he might die in peace, but not knowing how to go about it, he asked the curate if he would not settle the matter for him. In order to put the dying man at ease the curate said he was willing to help, and Paul should give him the money so that he might be able to restore it. Paul now explained that he was possessed of only half the sum defrauded, and for the other half the curate should turn to his heirs, namely his wife and two grown children. He would leave this matter to the prudence of the confessor, but begged that his good name might be spared. He had always had the reputation of a man of honor, and his wife and children must never find out that the departed husband and father had been a thief. The curate, seeing that the man was in his last moments, promised to attend to this point, and administered the sacraments. There now remained the question of the restitution, and this gave the curate no little trouble and anxious thought. On the one hand, he was to help the merchant regain his money, on the other hand, how could he recover it from the heirs without hurting the good reputation of the deceased.

Question.—What is to be done in this difficulty?

Solution: 1. That the curate is entitled by the instructions of Paul to apply to the heirs, there can be no possible doubt, for “the heir, together with the goods, also takes upon himself all the debts and real burdens of the deceased” (Lehmkuhl, Theol. Mor. I. n., 1157, IV). But how could this demand be made of them without jeopardizing the honor of the deceased? In our case this could be effected only under the title of a legatum pium, which Paul could be said to have intrusted to his confessor, the curate, the latter to make use of it according to his own judgment. This would not be an untruth on the part of the curate as, according to the Moralists, that which a testator wills for the repose of his soul, or to set right a wrong that evidently entails a restitutio facienda, may be regarded as a legatum pium, in so far at least as it is as binding upon the conscience of the heirs as a really pious bequest.

2. Another question, now to be taken into consideration is, whether it is prudent to make a demand under this title upon the heirs, and from this follows the further question, whether restitution in our case is morally possible. Let us here leave out of consideration the fact that a demand of this kind, even under the guise of a pious bequest, may arouse the suspicion of the heirs that there was some wrong-doing on the part of Paul that is to be righted. Let us not speak even of the embarrassment in which the curate will be placed should he be questioned by the heirs as to the application of the legatum pium. Let us ask, would it not be an awkward thing for the curate to make such a demand from the heirs, especially if perhaps some legatum pium is already mentioned in the will? And will he be believed if he states that Paul made this legacy entirely of his own free will, and without any inducement on the curate’s part? The mere suspicion of legacy-hunting is harmful, and calculated to bring it about that the spiritual activity of the priest at the bed-side of the sick and dying will be regarded with suspicion and mistrust. This is all the more likely as in cases of this kind even good Catholics are wont to become suspicious, especially if they consider themselves injured in their inheritance. The admonitions given in Pastoral Theology to priests and confessors not to interfere in matters pertaining to wills and legacies, but to restrict themselves conscientiously to their care for the soul, are full of wisdom. In our case such interference did not exist, either directly or indirectly, yet for reasons of pastoral prudence we would strongly advise the curate not to present such a request to the heirs, even though the merchant may receive back only half of the money due him.

3. It is evident that the curate is not bound to make good the other half of the sum ex propriis. He has fulfilled his duty towards the merchant. As confessor he has undertaken the restitution in Paul’s stead, but it is no fault of his that he can do so only in part. Or can it be that as Paul’s representative he is bound to do more than Paul himself could do? According to a universally accepted principle Paul is excused entirely, or at least partially from restitution if a moralis impotentia exists. The curate is similarly placed, because the restitution of the second half of the sum is for him beset with such difficulties that these constitute a true impotentia moralis, which relieves him from any further obligation in the case.

4. It cannot be said that the curate was responsible for this inability by imprudently undertaking the execution of the restitution. Under the circumstances, he could not have acted differently, as there was not a moment to be lost if Paul was to receive the last sacraments, which was far more important than the whole matter of restitution. But, even though there had been sufficient time, if the curate by not exercising sufficient prudence and foresight arranged the matter of restitution prejudicially to the merchant, even then he would not be obliged to make restitution, as in this case he would have been wanting in charity but not in justice. As confessor he was not concerned in the first place and ex officio with the bonum vel damnum temporale tertii, but with the bonum vel damnum spirituale of the penitent.