Chapter I — The notion of restitution, and the principles from which it proceeds. Tardy debtors and their confessors are admonished

I. QUESTION I. What is restitution, and whence is it born? ANSWER. It is an act of commutative justice by which the loss inflicted upon another is taken away, or what has been received is rendered back, and justice, or equality, is constituted between the parties. Hence it is that restitution arises from a twofold principle: namely, either from unjust acceptance, or from the thing received. Under the name of unjust acceptance is understood whatsoever … … is understood, not only what has been taken away by theft or rapine, but also any injury whatsoever inflicted upon reputation or honour, by adultery, calumny, or defamation. Wherefore every loss opposed to commutative justice, whose right is violated, ought to be repaired by restitution up to equality. Restitution is said to be from the thing received when another's thing is with you, whether justly or unjustly. Here the two principles are sometimes conjoined, as in a thief, who is liable to restitution both from the thing received and from the unjust acceptance; sometimes separated, as in him who possesses another's thing in good faith, thinking it to be his own.

II. QUESTION II. Whether restitution is to be made at once? ANSWER. Restitution from unjust acceptance is to be made forthwith. Restitution from the thing received is to be made within the time predetermined between the parties, as happens in a loan, in selling and buying, in a deposit, and the like. If another's thing (says St. Augustine, Epistle 54) can be rendered back and is not rendered back, penance is not done, but feigned. Reason shows the same. For it is no less against justice to retain against the lord's will than to filch, as St. Thomas teaches, II-II, q. 62, art. 8. As to take another's thing is a sin against justice, so also is it to detain it.

III. Hence you may infer that those sin who put off the wages of workmen from day to day, against whom holy Scripture cries out: The wages of him that hath been hired by thee shall not abide with thee until the morning (Leviticus 19). And again, Tobias 4: If any man hath done any work for thee, immediately pay him his hire, and let not the wages of thy hired servant stay with thee at all. More vehemently does St. James the Apostle cry out against the oppressors of hirelings, chapter 5: Behold the hire of the labourers, who have reaped down your fields, which by fraud has been kept back by you, crieth: and the cry of them hath entered into the ears of the Lord of Sabaoth. In three ways is a wage defrauded: first, when it is not rendered; second, when it is diminished; third, when the rendering of it is deferred. And it is the wage that cries out at the tribunal of divine justice, not the poor man; because the poor man often, for fear of the rich, dares not cry out. But the wage fears nothing, and therefore implores vengeance upon the head of the rich man. Solomon, Ecclesiasticus 34, compares that crime to the shedding of blood: He that sheddeth blood, and he that defraudeth the hireling, are brothers. Nor does the excuse avail of those who say that they do not pay because they lack money. If they lack money, why do they call hirelings to work? These are thieves and robbers, since they know that they are not able to pay, and yet they flay their very skin.

IV. What is to be said of tardy debtors, who buy from merchants and do not pay promptly? We will pay, they are wont to say, as soon as may be. At present it is needful that we provide for our own affairs. Nobles set against it the splendour of their own estate, and the sustenance of sons, wives, and servants. The payment of debts would thrust me down from my proper estate: and therefore you bring it about that others go begging! You know not how to bear hunger, and therefore you cast others into famine? These men ought to diminish their estate, to restrict the number of their servants and horses, and to cut back the pomps of their wives and sons to the quick. Those who abound in goods are commonly debtors: for no one entrusts his wares to the poor. Those who are able to restore and to pay, even with inconvenience (never is restitution convenient), and who neglect it, are in a state of damnation, and multiply their sins day by day. The retention of another's thing (says St. Thomas, Suppl., q. 6, art. 5) against the lord's will runs contrary to a negative precept, which obliges always and for always: therefore a man is always bound to render it at once. Therefore those who omit restitution, unless they be truly powerless, are in continual mortal sin.

V. QUESTION III. What is to be said of confessors who absolve tardy debtors? ANSWER. These sin, and multiply sacrileges. Nor is it lawful to pay a debt by parts. This truncated payment inflicts a grave detriment upon creditors. They ought to pay the whole debt at once, when in truth they can, even with inconvenience. The debtor is guilty, the creditor innocent. Therefore the guilty debtor, not the innocent creditor, is bound to sustain the inconvenience.

VI. The general rule therefore is this. As often as restitution is morally possible, it is to be carried out before such debtors are absolved. Let the confessor bear himself toward a tardy debtor as toward a concubinary, whom he is not to absolve unless he first cast out the concubine. Let the debts of the poor therefore, and the labours of hirelings, first be paid, and afterwards let them be absolved. Let the confessor beware of the opinion of certain casuists, and chiefly of Tamburini, Book III, Method, chapter 4, no. 5, who says: “If the confessor should foresee that the penitent will not make restitution, should the nullity of the title which the penitent thinks he possesses be disclosed to him, such nullity is not, according to Sánchez, to be made plain to him by the confessor, when he has not been questioned … to the prejudice of a third party who will go without what is his.” The confessor is bound by his office not only to judge, but also to teach. Many other laxer things Fr. Tamburini teaches there. See Vol. VII, book 2, dissertation 2, chapter 3; and the History of Probabilism and Rigorism, dissertation 1, chapter 5.

VII. QUESTION IV. What kind of fault of injustice brings in the debt of restitution? ANSWER. One fault of injustice is theological, another juridical. A theological fault is a sin either mortal or venial. A juridical, or civil, fault is the omission of the due diligence by which a man is bound to know, to beware, to provide, or to do something, whence a loss follows. Whether this fault contain malice or not is not attended to. It is threefold: grave, slight, and very slight. Grave is the omission of that diligence which prudent men of the same profession are commonly wont to use. This fault is called also most grave, as is manifest fraud — say, when the keeper of another's thing sleeps, or feigns to sleep; and graver, which is presumed fraud, as when a man knowing and able to hinder does not hinder. Slight fault is the omission of that diligence which the more prudent are wont to use. Very slight fault is the omission of that diligence which the most careful men use. This juridical fault is sometimes conjoined with, sometimes separated from, the theological fault.

VIII. When none of these faults is committed, no debt of restitution arises, three cases being excepted. The first is, if your animal kill another's animal or trample down his crops, you are bound to compensate the loss. Second, if your slave injure another without his own fault, you are likewise bound to make good the loss, as is had in the Institutes, § Domino. Third, if something be thrown into the road out of your house, and it has not been proclaimed, and if loss befall passers-by without your fault, you are bound to compensate the loss. These laws, however, do not oblige before the judge's sentence, because they have been so received by use.

IX. QUESTION V. Does theological fault alone bring in the debt of restitution? ANSWER. Outside an office or a contract, theological fault alone, not interior but exterior, brings in the debt of restitution, because theological fault alone injures another's right. And so if the juridical fault be separated from the theological fault, it does not bring in the debt of restitution, unless a peculiar contract intervene. From a slight theological fault a slight, from a grave a grave obligation of restitution arises; sometimes nevertheless a slight exterior fault conjoined with an interior will of harming can bring in a grave obligation of restoring. An advocate uses all the diligence to which by force of his office he is held, and which diligent professors of this art are wont to use, but was unwilling to use greater diligence, out of hatred and inward envy against his client, that loss might thence follow to him: although this exterior omission be slight, yet conjoined with an inward depraved affection of harming, it can bring forth a debt of restitution. Read Vol. VII, Book I, dissertation 2, chapter 5, no. 8.

X. QUESTION VI. Whether the professors of any art are bound to restitution for a slight or a very slight fault? ANSWER. It has already been said that no one outside an office or a contract is held to restitution for a slight or very slight juridical fault, when the theological fault is removed. Now it is asked whether craftsmen, physicians, advocates, and such as these, who exercise their arts for an agreed price, are bound to restore on account of a slight or a very slight fault? The common opinion denies it. Since the aforesaid are bound neither from the thing received nor from unjust acceptance: because unjust acceptance is not found without a grave fault joined to a theological fault; nor finally from contract, because none of the said persons obliges himself to exercise his art with greater diligence than prudent men of the same professions are wont to use. From a grave juridical fault alone, therefore, conjoined with a theological fault, does the debt of restitution arise in them. If nevertheless the aforesaid should promise greater diligence than the rest of the professors are wont to use, then they would be held more or less, according to the diversity of circumstances, to restitution for a slight or a very slight fault.

XI. QUESTION VII. What juridical fault is required in a contract, that it may bring in the debt of restitution? ANSWER. The first opinion teaches that one is held to restitution for a slight or a very slight fault, if the contract turn to your advantage alone, as in a loan for use, and the thing perish or be made worse. And this is the disposition of law, Digest, book 13, title 6, law 18: In things lent for use such diligence is to be furnished as each most diligent father of a family uses toward his own affairs. This disposition is congruous with natural equity, namely that he who uses another's thing gratis should use the highest diligence in its custody. For unless you be most diligent in this contract, when will you ever be so? Common sense itself dictates that a borrower be bound to greater diligence than the rest. If therefore the rest are held for a grave fault … … here he will be bound for a slight or a very slight fault. An exception is precarium, in which he who receives is held only for fraud or for grave fault; since the lord can at any time demand back a thing granted on sufferance. If the contract be useful to both parties, as the contract of letting, of hiring, of pledge, each is subject to restitution for grave and slight fault, but not for very slight. If the contract turn to the advantage of the giver alone, as happens in a deposit, he who receives is held to restitution for grave fault and fraud only.

XII. QUESTION VIII. How is a possessor in good or in bad faith held to restitution? ANSWER. A possessor in good faith is he who, invincibly reckoning another's thing to be his own, possesses it. A possessor in bad faith is he who knowingly retains another's thing, or who by vincible or affected ignorance persists in the possession of another's thing. A possessor in good faith can consume and sell another's thing so long as he perseveres in good faith; but as soon as he observes that the thing is another's, he is liable to restitution: because if he be in delay, he becomes a possessor in bad faith, unless a completed prescription go before. If, after he has consumed the thing, he observes it to be another's, he is bound to restore that in which he has been made richer. But if the thing subsist, if not in kind, at least in an equivalent, then you are bound to restore it. You have eaten another's thing, thinking it your own, and have preserved your own. Then another's thing exists equivalently in yours. Therefore you ought to restore it. But if you had consumed nothing of your own, you are held to nothing, because you have been made richer by nothing. If you doubt whether you have been made richer by another's thing, then the matter is to be settled in proportion to the doubt, at the arbitration of wise men.

XIII. QUESTION IX. Whether one who in good faith buys or receives from a robber things consumable by use is bound to restore the thing, if it subsist, or that in which he has been made richer? ANSWER. You have received money from a robber, or have bought wine, wheat, a garment, or the like; you have come to a supper made of food filched by theft in another's house, being about to consume just as much in your own. If the thief be made powerless for restitution, all confess that you ought to restore the thing, if it subsist, either in the thing itself or in an equivalent, that is, in that by which you have been made richer. But it is disputed whether you ought to restore, when the thief has goods with which he can himself restore. And the discourse is of a possessor both in good and in bad faith. For as regards this, they are equal. If the thing subsist, each is bound to restore the whole: if the thing do not subsist, each ought to render back an equivalent price, with this sole difference, that a possessor in good faith is bound to restore only that in which he has been enriched, whereas a possessor in bad faith is bound to restore the whole.

XIV. To me the more probable opinion is that each possessor, whether of good or of bad faith, is held to restitution with the sole assigned difference. Since a thing, wherever it be, cries out to its own lord, who has the right of demanding it back wherever it subsist, whether in itself or in an equivalent. This thing, wheresoever it comes, carries with it the inseparable burden of returning to its own lord. Some distinguish between things mingled and things not mingled with the robber's goods. But this mingling cannot despoil the lord of the right of demanding back his own thing wherever it subsist, either in itself or in an equivalent, provided it be certain that the thing subsists in one way or the other.

XV. He who possesses another's thing not consumable by use — namely a horse, a book, a picture, and the like — whether in good or in bad faith, is bound to restore the same if it subsist, because this, while it subsists, cries out to its lord, as the common and true opinion teaches. A possessor in bad faith, whether the thing subsist, or have been consumed, or sold, or have perished, even without his own fault, ought to restore either the thing or the price of the same. Besides which, the unjust plunderer or retainer is bound to compensate all the losses which the lord has suffered on account of the privation of his thing. You have plundered or retained the moneys of a merchant, which if he had had he would have exposed to trade, or would have repaired imminent losses: beyond the restitution of the money plundered or unjustly retained, you are bound to compensate the losses and the gains not obtained on account of the privation of that money.

XVI. QUESTION X. If a thief plunder a thing which would have perished with the lord, is he bound to restore the same if he preserve it, or the price, if it have perished? ANSWER. If you doubt whether the thing could have perished with the lord, you ought to restore the same, or the price of the same, even if it should perish without your fault — at least according to the estimation of the doubt. The same is to be said of a depositary, and of a debtor who is in delay of restoring another's things. Again, even if it were certain that the thing would have perished with the lord unjustly — say because a thief was going to filch it — you are liable to restitution, because another's theft does not excuse your own. These things are beyond dispute. Similarly, when you knew for certain that the thing would have been lost with the lord by a fortuitous chance, say by fire or shipwreck, if you should snatch it away, you would owe to restore it or the price of the same, even if the thing perished with you at that time at which it would also have perished with the lord: since you plundered that thing not that you might keep it for the lord, but that you might turn it to your own advantage. Therefore you plundered with the burden of restitution. That the thing here perished with you, you ought to impute to yourself. Unjust acceptance by its own nature brings an injury upon the lord; nor is the injury here taken away by this, that the thing would have been lost with the lord. Therefore the debt of restitution which you contracted by that act by which you took the thing away always perseveres until it be compensated by you. It is not hidden from me that many defend the opposite. But to me this opinion seems the more probable. You have stolen in a raging fire a thing certainly about to be burned. If the thing subsist with you, or the price of it, you are bound to restore it, even if it perished with you in another fortuitous fire. In the sacking of a city you steal another's thing, which would certainly have been filched by other thieves: you ought to restore it to the lord if it subsist, or the price, if you have sold it.

XVII. If you snatch another's thing from a fire, and, the danger being past, retain it, and it perish with you, not being about to perish with the lord, you are held to restitution, all confessing it. He who in bad faith filches another's thing, which if kept would turn out better (say you have laid waste a vineyard or crops unripe at a time when they were worth fifty, but at the time of ripeness would be worth a hundred): if the lord was going to sell those things at the time when you plundered them, you ought to restore the price according to the value which they have in the former state; but if he was going to preserve the aforesaid things, there is to be restored as much as, according to the estimation of prudent men, is worth the hope of keeping those things until the better state.

XVIII. QUESTION XI. To whom does a thing taken away by theft accrue? ANSWER. It accrues to the lord, not to the thief. Wherefore the thing is to be restored with the increase made with the thief, even if the lord would not have kept it until this time. Hence, if the price be increased on account of the multitude of buyers, restitution is to be made according to this value. If a thing taken away by theft in a cheaper state has been made better, and afterwards reduced to a worse state, it is to be restored according to the increase, if the lord would have kept it until this time; and if at the time of the cheaper price you sold the thing, and the lord likewise would have sold the same at this time, restitution can be made according to this value. This all confess; but they differ as to what you ought to restore when at the time of the increase you sold a thing which the lord would not have kept until this time. Many defend that you ought to restore only according to the value of the cheaper price, since at that time it would have been sold by the lord. Others maintain that you ought to make restitution according to the value of the increase, whether intrinsic or extrinsic, when you at the time of this greater value sold or consumed the thing, although the lord would not have kept that thing until this time. Since the value of a thing accompanies the thing itself. Therefore, if the thing is the lord's, as in fact it is, so is the value of the thing. You sell or consume the thing at the time of the greater value: therefore this value is to be restored. I yield. Are you not, at the time at which you unjustly sell or consume the thing, bound to restore it to the lord? Further, the price of a thing is equivalently the thing itself. Therefore this price is to be restored. Here the second opinion seems to me the more probable.

XIX. QUESTION XII. How ought a possessor of doubtful faith to restore another's thing? ANSWER. A possessor of doubtful faith can be regarded at the beginning of possession and in its progress. He who doubts that a thing is another's, and buys it not to be handed over to the lord but that he may retain it for himself, is a thief, and is held to restitution both by reason of the thing received and of the unjust acceptance, even with the danger of losing the price: because he willingly subjects himself to this danger. Wherefore he ought to use diligence to find the true lord, to whom he may hand over the thing bought. If after moral diligence he does not find the lord, and the doubt ceases, he becomes a possessor of good faith, and can by right retain the thing for himself. If the practical doubt persevere, the thing is to be divided among the poor, the price paid in the purchase being retained in proportion to the doubt. If the doubt occur in the progress, and the thing was consumed before any doubting, he ought to restore that in which he has been made richer: if the thing exist, diligence is to be used that the lord be found, and in proportion to the doubt the matter is to be settled by the counsel of prudent men; nor does that rule avail: the condition of the possessor is the better.

XX. QUESTION XIII. What fruits is a possessor of good faith bound to restore? ANSWER. He is bound to restore all natural fruits, if they subsist, expenses being deducted; if they have been consumed, that in which he has been made richer. Since a fruit-bearing thing brings forth fruits for its lord. And this holds true even if the lord would have left the thing untilled.

XXI. QUESTION XIV. What fruits ought a possessor of bad faith to restore? ANSWER. He is bound to restore all natural and industrial fruits which the lord would have perceived, expenses being deducted, whether they subsist or not, whether he has been made richer or not. The same is to be said of a possessor of good faith, from the time at which he became conscious that the thing was another's. If he defer restitution, he becomes a tardy debtor, and is bound to restore all the fruits which he perceives, and to compensate both emerging losses and ceasing gains. If a thief does not perceive the fruits which the lord would have perceived, he ought to restore the price of the same. On the contrary, if the lord would have perceived no fruits, then, although the robber does not perceive them, he is not held to their compensation. But if the thief perceive natural fruits which the lord was not going to perceive, he ought to restore the same, because the thing would have borne fruit for the lord.

XXII. QUESTION XV. What expenses may a possessor, whether of good or of bad faith, deduct? ANSWER. Of expenses, some are necessary, as the tillage of fields, the food and custody of animals, the repair of houses, without which things either suffer detriment or bring forth no fruits. Others are useful, which tend to this, that things be made better or increased, as the planting of trees, the multiplication of a flock, and the like. Others are voluntary, as pleasure-gardens, paintings, birds, and the rest of that kind, which serve pleasure. Industry, labour, and inconvenience in gathering the fruits and in preserving the things come under the name of expenses.

XXIII. All useful and necessary expenses made by either possessor are to be deducted in restitution, and the lord is bound to reckon them: because no one ought to carry off advantage from another's labours. If nevertheless the lord would have preserved his things without these expenses by his own industry, then they are not to be rendered to an unjust possessor, but only to a possessor of good faith. If the expenses should exceed the fruits, the lord would not be held to pay them, because then the thing would not turn to his own advantage, and he would be compelled to buy his own thing too dearly. Authors dispute concerning the restitution of expenses which are voluntary. As regards practice, restitution ought to be made at the arbitration of prudent men.

XXIV. QUESTION XVI. He who buys a thing in good faith, may he render it to the thief and demand back the price, or is he bound to restore it to the lord without the price? ANSWER. If the buyer prudently judges that the thief will restore the thing to the lord, without doubt he can rescind the contract and demand back the price. The difficulty is when the buyer doubts whether the thing will be restored by the robber to the lord, and the buyer cannot receive the price from the thief unless he restore the thing bought. For if he could recover the price, all confess that the thing is to be restored to the lord.

XXV. The first opinion denies that the buyer is bound to restore the thing to the lord with the loss of his own price. The opinion true to me is that the buyer in the case proposed is bound to restore the thing to the lord, as St. Thomas teaches, II-II, q. 62, art. 6. Concerning him, he says, who has received another's thing, two things are to be considered: the thing received, and the acceptance. By reason of the thing itself, he is bound to restore it as long as he has it with him: because what he has beyond that which is his own ought to be taken from him and given to him who lacks it, according to the form of commutative justice. The buyer in the case proposed has beyond that which is his own, because the thing bought from a thief is not his but the lord's. To him therefore it ought to be rendered. Nor can the buyer sell the stolen thing to another, because no one can sell another's thing against the lord's will. Therefore neither to the thief, who is not going to restore it to the lord. For a buyer selling a thing to a thief who will not restore it becomes a partaker of the theft.

XXVI. Our adversaries object: A buyer of good faith inflicts no injury upon the lord. What of it? Therefore he is not held to restore from unjust acceptance, but from the thing received. They insist: In an equal case of innocence the buyer ought to provide for himself rather than for the lord. As the lord has a right to the thing, so the buyer to the price. Rightly, well. Therefore let the thief render the price to the buyer, and the buyer the thing to the lord, and all is just. But because the wicked thief refuses to render the price, must therefore the buyer unjustly retain another's thing? Because the thief commits an injustice, must you likewise do an unjust thing? Other sophisms I pass over. Read Vol. VII, Book I, dissertation 2, chapter 7, no. 17.

XXVII. QUESTION XVII. He who in bad faith buys another's thing from a robber, ought he to restore it to the lord or to the thief? ANSWER. De Lugo, Diana, and others contend that the thing is to be restored to the robber. But from the things which have been said, the opinion appears false by the better right. For here he is bound to restore to the lord not only from the thing received, but also from unjust acceptance.

XXVIII. QUESTION XVIII. He who in good faith sells to another a thing bought from a robber, is he bound to render the price to the lord or to the buyer? ANSWER. Some teach that you are bound to restore neither to the lord nor to the buyer, save that in which you have been made richer. The opposite opinion is to me the more probable. If the aforesaid seller of good faith retained with himself another's thing, the truth being known, he would owe to restore it to the lord. But the price succeeds to the thing: therefore this price is to be restored to the lord, not to the buyer. The buyer intends to pay the price to the true lord. But you who sell another's thing are not the true lord. Nor do you in the sale transfer dominion, since you lack it. Finally, a thing always, wherever it be, cries out to its own lord: therefore either the thief, or you, or the buyer are bound to make good to the lord. The first who is bound to make good to the lord is the thief. The second is you, who bought the stolen thing, supposing that the thief is unwilling to restore. Further, as the thief with respect to you is alone liable to restitution, since he is the first guilty party, so you with respect to the buyer, who succeeds in the third place, are prior in the burden of restitution. Therefore if the buyer should restore the thing to the lord, you would owe to restore the price to the buyer. On the contrary, if the buyer does not render the thing to the lord, you ought to restore the price to the lord.

XXIX. QUESTION XIX. He who receives false money and hands it over to another in spending it, to what is he held? ANSWER. Diana with others answers that he who spends money in good faith is held to nothing, even if he afterwards learn that it was false; but that he is bound if he spend it in bad faith. But the true opinion teaches that in each case he is held to compensate the loss. Would you not, if you spent lead in place of silver, whether in good or in bad faith, be bound to make good the loss? No one therefore who has received false money, even in good faith, may by right put it about: and if he has put it about, knowing this, he is held for the loss.

XXX. QUESTION XX. He who sells another's thing at a greater price, is he bound to restore the increase to the lord? ANSWER. That increase of price which proceeds from the thing itself remaining unchanged both in substance and in the circumstances of place and time is to be restored to the lord. If on the contrary the increase be the fruit of the seller's industry alone, either because he kept the ware, or because he transferred it to another place, then it is not owed to the lord, but the seller can retain it for himself.

XXXI. QUESTION XXI. If you sell your thing to a thief, from whom you receive in good faith stolen moneys as the price, are you liable to restitution? ANSWER. The Salmanticenses answer that if you have the moneys unmingled and separate, you are held to restitution; otherwise if the moneys be mingled with your own. I have already said above that this mingling does not hinder your being held to restitution. For when you are certain that another's moneys are found in the heap of your own moneys, no reason appears why by force of that mingling you should acquire dominion. You are therefore held to restitution of the thing received.