Article II. To Whom Must Restitution Be Made?

699. • 1. Restitution must be made to the certain and known owner, whenever it can be done without grave difficulty and injury of another, nor is there another cause excusing from restitution. - St. Lig., Hom. apost., n. 64.

2. He who has taken away a thing deposited with another, or leased or lent, must restore not to the owner, but to the possessor himself. For the possessor cannot be deprived without injury of the right of custody, use, or possession, unless he himself consents. - Hom. apost., ibid.

But what must be done if the owner is doubtful or unknown, or if, although he is known, he cannot be approached? These things seem to be held:

1. If after diligent inquiry the owner is doubtful, either the doubt turns among few, or among many. If the former, restitution must be made to them pro rata, or the presumed owners must be induced to a settlement. If the latter, for example, because someone selling in some city defrauded many in weight or price, restitution is to be made by increasing in the same way the weight or measure, or by diminishing the price toward ordinary buyers, who are presumed to have been damaged, if it can easily be done; otherwise restitution must be made to the poor. - Hom. apost., ibid.

2. If the owner is plainly unknown, or if, although known, he morally cannot be approached either immediately or mediately, a distinction must be made; for either another's thing acquired in good faith is possessed, or in bad faith. If in good faith, then one must act as in recently lost things whose owner cannot be found (see above, n. 578), and therefore they must either be expended on pious causes, or also can be retained by the possessor. But if in bad faith, the possessor must wholly divest himself of such a thing, and spend it on pious works or works useful to the common good. For it is wicked that malice profit a thief or possessor of bad faith. - Hom. apost., n. 67, 69.

700. Questions. - Q. 1. Whether when your creditor was compelled to make a cession of goods, you ought to restore to him or to his creditors?

Resp. Generally speaking, you ought not to restore to your creditor, but your debt must be manifested by you to his creditors ¹. The reason is that although the creditors of one ceding his goods do not have direct dominion in his goods, nevertheless they enjoy a strict right that from those goods they be kept unharmed. Yet sometimes you could restore to your creditor; for example, if the debt is slight, if he is upright, and you believe that he will make restitution to the creditors; likewise if he is in grave necessity, and greatly needs that debt for sustaining life, because, as the theologians commonly teach, one ceding his goods can subtract those things which are wholly necessary for living. - St. Lig., n. 699. - Gousset, n. 772.

¹ It seems that one must inspect with whom, after the cession of goods has been made, the administration and custody of the same remains. For to him alone restitution or payment of debts can and ought to be made, so that if it is made to another, it is not valid, and it perishes for the one paying, if perchance the thing handed over does not come to the hands of the administrator. But that the creditors of him who has ceded his goods be warned will perhaps be able to pertain to charity, but not to justice. But the Author seems to speak of credits which are kept hidden by him who cedes his goods. And then indeed those debtors of his would cooperate in this fraud who, with the cession of goods known, would pay the debt to him himself; wherefore both in the forum of conscience they would not be safe, and in the external forum they could be sued to pay again.

701. • Q. 2. To whom ought a debtor FROM DELICT to restore, if the injured owner cannot be found?

Resp. According to the common sentence he must restore to the poor, or to pious causes. The reason is that from common sense the unknown owner is judged to be represented through the poor or pious causes; for such is presumed to be his will whenever he cannot recover his thing unjustly taken away or damaged. - Thus St. Thom. 2. 2, q. 62, art. 5, etc. Concerning this it is certainly established from Canon Law as regards usurious and simoniacal profit. The canonical law also seems by custom to be extended to the other cases: But custom is the best interpreter of laws. Therefore it appears that concerning this a certain law of nations has been introduced.

Some say that the debtor can spend those things on any public utility whatever, even profane. But in practice one must stand by the general custom. But never can the possessor of bad faith, nor an unjust damager can retain the debt by any pretext whatever, even of poverty ², because no one ought to carry back advantage from his own malice, as was already said above, n. 699. Whence he could be excused by reason of inability alone, and for a time. Nor would that debtor satisfy the obligation if he restored to some private person who is not poor.

² When the Author says by the pretext of poverty, he is to be understood of a feigned cause of poverty. For, as Cardinal De Lugo says (De Iust., disp. 20, n. 8), if the debtor, owing something to an uncertain creditor, and therefore owing it to be given to the poor, is himself truly poor, it can be applied to him. And that this holds also of debts from delict, theft, robbery, and the like, Lugo himself (ibid., n. 6) plainly indicates.