A. Restitution in General

1. DEFINITION.—Restitution is reparation for an injury done to another. To restore, says St. Thomas, is “nothing else than to reinstate a person in the possession or dominion of his property, and thus in restitution we consider the equality of justice attending the payment of one thing for another, and this belongs to commutative justice.”¹ Restitution is designed to undo the consequences flowing from sins committed against one’s fellowmen. Moreover, satisfaction must be made to God for the offence committed against Him in injuring His creatures. Hence, over and above the duty of making restitution for the property loss involved, there exists the obligation of atoning for the sin committed, by internal acts of repentance and satisfaction, i. e., the offender must be sorry for and confess his sin.

¹ Summa Theol., 2a 2ae, qu. 62, art. 1: “To restore seems to be nothing other than to establish someone again in the possession or dominion of his property; and thus in restitution the equality of justice is observed according to the recompense of thing for thing, which belongs to commutative justice.”—Cfr. A. Lehmkuhl, S. J., Theol. Mor., Vol. I, 11th ed., n. 1127 sqq.

2. NECESSITY OF RESTITUTION.—To make restitution of ill-gotten goods, either in re or in voto, is, generally speaking, a grave obligation if the matter is important (materia gravis). It is so grave an obligation, in fact, that without it the sin cannot be forgiven. “Peccatum non dimittitur, nisi restituatur ablatum,” or “Non datur venia, nisi restituantur ablata,” are two fundamental maxims in Moral Theology.

The duty of making restitution is not only enforced by divine and civil law,² but likewise based on the moral law of nature. For he who does not restore to his neighbor the property which he has unjustly taken away from him, inflicts upon him additional injury by continuing to withhold from him what is his and hindering him in the use thereof. Strictly speaking, therefore, the duty of making restitution arises solely from a violation of commutative justice, not of charity or equity, or of legal or distributive justice as such.³

² Ex. XX, 15; XXII, 1–16; Ez. XXXIII, 14–16; Numb. V, 7; Matt. V, 23 sqq.; Mark X, 19; Luke XII, 59; 1 Cor. VI, 8; Philm. 18 sq.—Reg. Iur. in VI° Bonif. VIII, n. 4.—St. Ambrose, De Offic., l. III, c.

³ (n. 21): “Do not the laws themselves teach us? They command that those things which have been taken from someone with injury to his person, or with increase of the thing itself, be restored, so that they may deter a thief from taking either by punishments or bring him back by a fine.” (Migne, P. L., XVI, 151).—St. Augustine, Epist., CLIII (al. 54), c. 6, n. 20: “If another’s property, on account of which the sin was committed, is not returned when it can be returned, penance is not performed but feigned; but if it is truly performed, the sin will not be forgiven unless what was taken is restored—but, as I said, when it can be restored.” (P. L., XXXIII, 662).—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 2: “Since preserving justice is necessary for salvation, it follows that restoring to someone what was unjustly taken from him is necessary for salvation.”—Duns Scotus, Comment. in Sent., l. IV, d. 15, qu. 2, n. 29: “Just as one who keeps an adulteress is not capable of penance, but is a mocker, and if such a man comes to penance, he adds sin to sin, so one who detains another’s property in will and deed, while he is such, is not capable of any part of penance.”—Benzinger, Hebr. Archäologie, 2nd ed., pp. 294 sq.

³ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 605: “There is no obligation of restitution except on account of a violation of strict right or commutative justice, but not on account of the right of uprightness simply. The reason is that restitution brings it about that the thing owed to one’s neighbor equals his right that was unjustly violated. But this cannot be done when a violation of the right of uprightness is under discussion. For if someone violates the right of his superior or of his neighbor, denying obedience to the former and the consolations of charity to the latter, that violation cannot strictly be repaired, because a new act of obedience or charity would not repair the violated right, but would satisfy only the precept, which always binds, of obeying one’s superior and relieving one’s neighbor in distress.”—Cfr. St. Alphonsus, Theol. Mor., l. III, n. 547; J. Rickaby, Moral Philosophy, p. 107.

He who is able to make restitution for an injustice which he has committed is bound in justice to do so. If he is unable, he is dispensed from the fulfilment of this duty only as long as the inability lasts.

If a man is able to make restitution, he is bound to do so; if he is unable, the duty of restitution is in abeyance while the inability continues. But no one may consider himself dispensed from this duty until he has at least made a sincere effort to comply with it. Moreover he should at all times remember his liability and cherish a firm purpose to make restitution as soon as an opportunity presents itself. This is what theologians style making restitution in voto, but it holds good only while the external act (restitutio in re) is either physically or morally impossible. Whenever commutative justice has been violated and the matter is grave, absolution should be withheld until the penitent has either made restitution, or sincerely promised to do so at the first opportunity. Absolution should be refused if the penitent has repeatedly broken his promise. Those who, though burdened with debts, live in a manner which will probably make it impossible for them ever to satisfy their creditors, are unfit for absolution. The same is true of those who, in a similar condition, refuse to deny themselves luxuries or leave restitution to their heirs, although they are able to make it themselves.

3. THE “ROOTS” OF RESTITUTION.—Restitution may be due for one of two reasons: (a) because one holds something that belongs to another (acceptio sive retentio rei alienae), or (b) because one has inflicted unjust damage or loss (iniusta damnificatio). These are called by moralists the “roots” (radices) of restitution.

Sinful co-operation in acts against commutative justice (cooperatio iniusta) is frequently enumerated as a third root of restitution, but as it may be subsumed either under the first (acceptio sive retentio) or under the second division (iniusta damnificatio), there is no need of treating it separately.⁴

⁴ Gury, Comp. Theol. Mor., I, n. 609: “The roots of restitution are the causes from which the obligation of restoring arises. They are taken from three headings, namely: 1. From the taking of another’s property; 2. From unjust damage; 3. From unjust co-operation.—Co-operation does indeed fall either under taking or under unjust damage, but for a clearer distinction of matters so intricate we have judged it better to consider it separately.”

READINGS.—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 6 (Rickaby, Aquinas Ethicus, II, 30 sqq.).—Th. Meyer, S. J., Inst. Iuris Nat., Vol. II, pp. 208 sqq.—H. Noldin, S. J., Summa Theol. Mor., Vol. II, pp. 458 sqq.—T. Slater, S. J., A Manual of Mor. Theol., Vol. I, pp. 398 sqq.—IDEM, in the Catholic Encyclopedia, art. “Restitution,” Vol. XII, pp. 788 sq.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 199 sqq.—J. B. Ferreres, Comp. Theol. Mor., Vol. I, pp. 501 sqq.