Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article IV. In What Manner Must Restitution Be Made?
- Generally it can be said that it is required and suffices that restitution be made in that manner by which violated justice is fully repaired, or repaired to equality, and thus the injured owner is made unharmed.
Hence 1. it is not necessary of itself that restitution be made openly; indeed often it cannot be made in that way, when provision must also be made for the reputation and honor of the one restoring.
- It is not necessary that restitution be made by the debtor himself, but it can be made through another, provided the thing is returned to the owner. Sometimes it can be made through the Confessor; yet great caution is then needed, both so that the seal of confession remains unharmed, and so that the penitent knows that satisfaction was in fact made to the creditor, lest any suspicion against the probity of the Confessor be able to arise.
- It is not necessary that restitution be made with the owner adverting to it, because this is not required in order that he be unharmed. Hence the debtor can restore, for example, by increasing the weight or measure in selling, or the owed work in laboring, and in six hundred other ways.
- Questions. - Q. 1. Whether restitution made through a simulated donation is valid?
Resp. Affirmatively, at least more probably. The reason is that for payment it is not required that the debtor externally admit that he is paying. Hence the debtor satisfies whenever he pays even in those circumstances in which the creditor thinks that a gift is being made to him. - Thus the common sentence. - Vogler, n. 534. - Carrière, n. 1265, etc., against Billuart.
Q. 2. Whether, if the creditor, moved by gratitude, pays back another gift to him, this must be restored to him?
Resp. Affirmatively. The reason is that that donation does not seem fully voluntary and spontaneous, as a merely gratuitous donation must essentially be; for it proceeds from the opinion of an antidoral obligation, or of gratitude, which rests on a false foundation. - Thus Carrière, ibid., against Tamb., etc.
Q. 3. In what place and at whose expense must restitution be made?
Resp. 1. If the obligation of restoring is from a thing accepted and retained in good faith, restitution must not necessarily be made in another place than that in which the thing now exists; nor is a debtor of this kind held to transmit the thing to another place where perhaps the owner now lives. The reason is that he is not held to restore the owner to the pristine state from which he did not cast him down by formal injury.
Resp. 2. If the obligation of restoring arose from delict, restitution must be made in the place in which the owner would have possessed the thing if it had not been taken away, and this at the debtor's expense. The reason is that the creditor must be kept unharmed and suffer no damage from the iniquity of the debtor, but be restored to the pristine state. - St. Lig., n. 677.
Resp. 3. If the thing must be paid from contract, one must stand by the clauses appended to the contract, if there was agreement concerning the place and manner of transmission. But when no agreement concerning these has been made, attention must be given to the special laws according to the diversity of contracts.
- Q. 4. Whether a debtor from delict must also pay expenses for the thing to be sent back to the owner, if those expenses exceed the value of the thing itself?
Resp. 2. But more probably negatively, if those expenses were greatest with respect to the value of the thing to be sent back. Then, however, from the presumed will of the creditor, restitution would have to be made to the poor. For right reason and charity dictate that the creditor cannot demand that restitution be made to himself with expenses of any kind whatever. - Thus Vogler, n. 415. - Lugo, n. 185. - Billuart, diss. 8, art. 46. - St. Lig., n. 598, where he says that this is the very common sentence.
But how great the loss of the debtor ought to be so that he can be excused from restitution to the owner himself, the theologians do not agree. They hand down this rule rather commonly: When, with all things weighed, the damage which the debtor will suffer exceeds the damage of the creditor by only double, it is not sufficient that the owner be deprived of his thing. But if it exceeds this proportion, it suffices that restitution at least be deferred. But for various circumstances this rule must be modified. - Thus Lugo, D. 20, n. 190. - St. Lig., n. 598, etc. But today this controversy can scarcely have place on account of the ease of transferring things or money elsewhere.
- Q. 5. Whether a debtor must restore again if he sent the debt through a faithful person, and it perishes by chance or the fault of a third party?
Resp. 1. A debtor from possession of good faith is held to nothing, because, fault and pact being excluded, the thing perishes for the owner, who is the creditor himself. Yet he would be held after the sentence of a judge if juridical fault had intervened.
Resp. 2. A debtor from contract is held to nothing if it is a matter of another's thing existing in nature, accepted in loan or deposit, etc., because the thing perishes for the owner, unless something else was agreed. Otherwise, if it is a matter of a thing owed in genus; because the debtor preserves dominion in it until it has reached the creditor, and he must answer for the chances of the price or the thing transmitted until it is delivered into the hands of the same.
Resp. 3. A debtor from delict is not freed from restitution, and remains bound to it for so long as he has not truly made the owner unharmed; because he always remains the culpable cause of the damage which this owner suffers. - St. Lig., n. 704, where nevertheless he does not dare to condemn those excusing a debtor of this kind who sent back the owed thing through a Confessor.
Except the threefold case in which the debtor is exempted from every burden, namely: 1. if the owner has designated the person through whom he wishes the thing owed to be sent to himself; 2. if the creditor indeed has not chosen the person, but has left to the debtor the freedom of choosing whom he wishes, provided one prudent and faithful is chosen; 3. if this person has been designated by the judgment of a judge.
- Q. 6. How must restitution be made for damages inflicted on the republic?
Resp. Restitution must be made through the means established by the Government itself, if means of this kind exist. Therefore attend to the various laws of places. But if such means have not been established, some say that restitution must be made through those placed over tributes, while others hold that satisfaction is made to the obligation of justice if restitution is made to the poor. - See Carrière, n. 1240, where he says that no legal mode exists in France by which restitutions of this kind are made. - See Casus, n. 707.