Case XXXI: Restitution by Members of Religious Orders

On page 153 of this volume a case is discussed in which a confessor under prevailing conditions was considered liable for restitution. What is to be said if this confessor is a member of a religious order? Does this liability still rest with him? The answer to this question depends upon the rule applying to restitution on part of members of religious orders, and this rule may be briefly discussed here. We shall have in mind only members of male orders, and only such, in fact, who are solemnly professed. It will further be premised that it is a matter of restitution for an unjust damage occurring after solemn vows have been taken.

I. Religious orders are in the Church of God, in regard to their nature, their interior and exterior work, an institution of such prominence that in promoting them there is served a causa pia in the best sense of the word. The best possible manner for an individual to promote this cause consists, no doubt, in choosing religious life for a vocation, devoting to it all the powers of body and soul, and by taking perpetual vows to become forever united to the Order. Whenever, therefore, the rules about restitution prescribe a causa pia, or pauperes, as the recipients of restitution, a religious complies to any such obligation perfectly by serving his order faithfully and zealously, and he thus cannot be bound to anything further. This the theologians teach in regard to the debita incerta contracta anti ingressum in religionem (professionem), and it would hold ex paritate rationis in our case.

II. The case is different, if restitution is to be made to a certain person. By the vow of poverty the religious has renounced all his right to any disposition whatsoever about money or possessions. Unless in extraordinary cases Papal dispensation, or precept, direct otherwise, he is unable of possessing property; anything he may have or acquire belongs to the convent, if it be privileged of possessing property, or to those who exercise the right of ownership over the possessions of the convent. Thus, without money and property, the religious is not in a position to make restitution; he is, because, and inasmuch as, thus prevented, relieved also of the obligation. That the convent need not assume any such obligation for him is obvious. It must be kept in mind, however, that the obligation of restitution is not of itself cancelled by the vow of poverty, as some other contract made by a religious may be invalid on account of his incapability to make dispositions in matters of possessions.

The obligation of restitution does prevail for the religious, and it becomes effective as soon as the obstacles opposing its fulfilment disappear, for instance, if through dispensation or secularization, the vow of poverty is wholly or partially abrogated. Furthermore, a member who has disposition over a peculium, which, without imposing an uncustomary or unseemly demand upon the convent, can be employed for restitution, can hardly escape the obligation.

III. A few other possible cases may here be mentioned. 1. A religious, i. e., the convent for this religious, receives by legacy, or in a similar way, an amount far surpassing the material benefit which the convent renders to this member. Is the convent obliged to employ the surplus for a restitution that may be incumbent upon this religious? The majority of theologians^* answer affirmatively if the obligation dates from the time before entry into the order (more correctly before solemn profession). Because those goods pass to the monastery with that burden which would have been attached to them if they had remained in the ownership of the religious (Lehmkuhl I, 1039). Under the condition premised in our case, that the act involving restitution took place after the solemn vows, such an obligation on part of the convent does not appear to result. Through profession the religious transfers all title to property to the convent, forever, in a manner valid before God, the Church, and often before secular authorities; this takes place in a perfect manner, if the religious at ‘profession is free from debt; it is not of itself possible to a religious burdened with a debt, if profession is not capable of cancelling the claims of a third person. Hence, the difference in the two instances. The laws of equity frequently impose requirements for which the word of the law does not provide.

^* Gury-Ballerini (I, 718) holds the contrary view; but compare Lehmkuhl (I, 1895) and the facts there cited in support of his contention.

2. Is the religious obliged, with the permission of his superior, to undertake work by the proceeds of which he will be enabled to make restitution? This must ex paritate rationis be affirmed upon the principles above stated, and according to the teaching of theologians concerning religious whose debts antedate their entry into the order. It is regarded as a matter of course by Suarez (De Virtute et Statu Religionis, tom. III. lib. VI. 10, 8). Occupations unusual and unbefitting for the calling of a religious are, of course, excluded; and on this account the question is not of great practical significance in our days.

3. In an order there is a certain number of holy Masses placed at the disposal of its members, to apply at pleasure. Out of the stipends for such Masses a religious may and should make restitution; is he then obliged to make efforts to gain stipends? Discrimination is here in order. If the application of a certain number of Masses is placed at the disposal of members for the purpose of applying the fruits to relations, friends, etc., then a religious is not obliged to apply the Masses for earning a stipend, even if the superior allows this. For, despite the obligation of restitution, he may live according to the aim and purpose which are intended by the precepts of his order. If, however, the superior by such a privilege wishes to give the members an opportunity to obtain some money for individual use, a kind of peculium therefore, the solution is more difficult.

On the one hand there is the obligation of restitution which he may discharge without interfering with dignity or rule; on the other hand, the question arises, can the priest be obliged to undertake a spiritual act with the purpose of earning by its performance, or on the occasion, money? The answer it seems at first sight would have to be in the negative, because otherwise there would be obligation to an act that manifestly is simony. And yet the priest may, in connection with Mass, earn money without committing simony. The negative answer seems, nevertheless, to us the more probable; for to say holy Mass in a certain intention, with the sole idea, of gaining money is certainly simony; the acquisition of money therefore cannot be made the reason for undertaking this or any other sacred action.

4. If the religious cannot make material restitution, but can apply holy Masses to the injured, thus benefiting him in a spiritual way, which the faithful often gladly accept as substitute for temporal damage, is he obliged to do so? No, compensating justice does not require restitution with goods of another kind, when one cannot make restitution with goods of the same kind, at least not without the decision of judge or superior. If Müller, with Cardinal De Lugo (II, p. 450), holds, in case restitution by material means cannot be made, it must nevertheless be enjoined upon the debtor that he at least pray for the creditor, or have prayers said for him, and that some good works be offered, so that the creditor may gain something for his debt in whatever way he can, there is, as follows from the word injungendum, not reference to obligation already present, but of one imposed (by the confessor, perhaps). It is only of such an obligation that Kresslinger speaks in Addit. ad Theol. Moral a Reiffenstuel exaratam, tom. IV. post 106 add. II. and Elbel, De Restitutione, conf. 12, 345. La Croix is more exacting (lib. III, p. 2, n. 425). However, the religious serves a causa pia (above 1), and his labors and merits are of an especial benefit to the Church and her faithful, provided he is a faithful member, so that there cannot well be question of any further obligation, such as offering good works or holy Masses. The confessor, of course, will find it advisable under circumstances to impose conditions beyond those that would just comply with the requirement. AMBROSE RUNGGALDIER, O.F.M.