Case XXIX: Doubtful Restitution; Decision of the Confessor; Consequences to the Confessor

A penitent confessed: “Many years ago I stole a considerable sum of money from a certain man, but some time after I sent it back to him through the mail, by ordinary letter. At the particular post office from which this letter should have been delivered there occurred for quite a while embezzlements of letters containing money and valuables, and this went on at the time I sent my letter. In the matter of my restitution may I let the matter rest, or am I still under obligation in this respect?”

The confessor replied, after some thought, and not without considerable fear of erring in his judgment, that there was no further obligation, because the embezzling of this money need not, and could not, be supposed. Since, furthermore, the penitent had acted in good faith, there would still less be any reason to impose further obligation upon him. What is to be thought of this decision of the confessor, and what are the consequences for him?

(1) Whether this restitution money really reached its rightful owner must be considered as very doubtful, in the light of the penitent’s statement. Since there is, at best, only little (moral) guarantee that money entrusted in this manner to the mail reaches its destination, doubts are all the more justified in our case. Whatever theologians say about proceeding in dubio de restitutione facta, it is certain that it is, first of all, the duty (if it is not preferred to make the restitution once more without any fuss) to remove the doubt as far as possible. The penitent, therefore, should institute either himself or through another—the confessor, perhaps—inquiries to ascertain the facts, if possible. If he will not, or cannot do this, then his responsibility for the sum continues, because the certain obligation (to make restitution) is not discharged by uncertain fulfilment, especially as it is a matter of a restitutio ex delicto debita, and also because the uncertainty originated from undeniably objective, even if subjectively not culpable, negligence of the debtor. For, even if he acted in good faith, he has, according to the comment of St. Alphonsus (/. 111, No. 705) on a similar case, momentarily preserved his own conscience from sin, but not complied with his objective duty. This shows how, and in what respect, the confessor has judged wrongly.

(2) If the confessor’s fear of erring was not the result of a certain anxiety, which at times may remain even after reason has clearly indicated the correct way, but rather resulted from a consciousness of doubt as to the right thing to do, it would have been his duty either to postpone the decision, or to send the penitent to another confessor, or to resort to the other means recommended by theologians under such circumstances. If the confessor acted - though in doubt, he failed also subjectively and failed grievously, because it concerned a materia gravis. His fault will be lessened, if, as is probable, momentary confusion and concern made calm deliberation difficult and interfered with procedure according to the rules; indeed, from this point of view the conditions may even remove all guilt. On the other hand, however, such conditions would not excuse if the confessor’s anxiety and false decision were due to culpable neglect of study.

(3) Since the confessor, as has been proved, erred in his decision, he is obliged to repair the fault as far as he can, according to the rules that apply here. It is superfluous to cite these rules here; but a state of affairs which is likely to occur may here be referred to.

What obligation does this priest incur if the penitent does not return, if, moreover, the person to whom restitution is due, and also the amount of the sum involved, are unknown to him? We reply: If the confessor has in his decision not subjectively failed, or only in a venial manner, then, according to the general and positive teaching of Moralists, he is under no obligation in regard to restitution. If, however, he has (subjectively) grievously failed, there ensues from the teachings of theologians on iniusta damnificatio, cooperatio, and incerta debita, the following: 1. The priest is bound to make restitution, and, 2. the restitution is to be made pauperibus vel causae piae. Regarding the amount to be thus expended we may, on the principle non est imponenda obligatio, ubi de ea non certo constat, accept the minimum consistent with a materia gravis (considerable stated the accusation). For the sake of security, however, and to satisfy the conscience, it would be advisable in such a case to have recourse to the Apostolic See (Penitentiary); Rome’s decisions in such things are not only just, but lenient as well.

Ambr. Runggaldier, O.F.M.