Article 3: The Circumstances of Restitution

The circumstances of restitution are indicated in the questions: Who must make restitution? To whom must it be made? How much? How? In what order? In what manner? At what time? Where? They are briefly contained in the memorial verses:

Quis? Quid restituet? Cui? Quantum? Quomodo?
Quando?
Ordine? Quove loco? Quae causa excuset iniquum? 1. Quis? Who must make restitution? Every one who possesses unjustly acquired property or who has intentionally inflicted injury upon another.

When it is a question of unjustly acquired property (res aliena), the first one who is bound to make restitution is the actual possessor, if the object still exists, or else he who has consumed or sold it. The actual possessor has the right of recourse on previous possessors.

Where damage has been unjustly inflicted (damnificatio), the real author of the damage is bound to make restitution. If two or more co-operate in causing the damage without a previous agreement or mutual understanding, each is responsible for the injury he himself inflicts; if there is an agreement or mutual understanding, the duty of restitution binds one and all in solidum,¹ in the following order:

¹ “Omnes et singuli in solidum tenentur.”—Cfr. J. P. Gury, Comp. Theol. Mor., Vol. I, n. 668–672.

If all the participants co-operated equally in causing the damage, all are equally bound to restitution; if the participation was unequal or subordinate, the duty of restitution binds unequally, in this order: first, the possessor in bad faith; secondly, the mandans and consentiens; third, the executor of the mandate, and, fourth, all who positively or negatively co-operated in the evil deed. If the possessor or the principal author of the damage has made full restitution, or if he has been released from the obligation of making restitution by the lawful owner, those who co-operated in the unjust deed are also released. If the former refuses or neglects to make restitution, the latter must do so, but has the right of recourse on the former. If one of the secondary participators in the injury is released from the duty of restitution, the others remain bound. “When it is uncertain which of several participators is the author of the damage done, all are responsible in solidum, because the party who has suffered the damage must not be robbed of his title to restitution on account of the existing uncertainty.”

As the duty of restitution to be made by several participators in solidum is not easily understood by uneducated persons, it is often necessary, even when the obligation is certain, to be satisfied with a partial restitution, because otherwise the injured party may receive nothing at all.²

² St. Alphonsus, Theol. Mor., l. III, n. 579: “It should be noted, however, that the uneducated, even though bound in solidum, should rarely be obliged to the whole, since with difficulty can they persuade themselves that they are bound to restore the part taken away by their companions; indeed, it may reasonably be presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them, since otherwise it is greatly to be feared that nothing will be restored if they are obliged to the whole.” Idem, Homo Apost., tr. X, n. 54; Idem, Praxis Confess., n. 44.

2. Quid et quantum? What is to be restored and how much? The answer to this question, broadly speaking, is: Everything a man unjustly possesses must be restored to the rightful owner, and all damage unjustly inflicted upon another must be repaired. If restitution cannot be made in full, it should be made as fully as possible, even if the person obliged to make it has to limit his expenses to the necessaries of life. He should further endeavor to advance the interests of his victim to the best of his ability, avert injury from his property and pray God to bless him.

In addition to material and temporary, spiritual damage must likewise be repaired. In cases where the positive law requires less than the law of conscience, he who is bound to make restitution should not be satisfied with complying with the demands of the law, and if the law imposes more onerous duties than conscience, he must comply with the former, at least after judgment has been rendered in court (post iudicis sententiam). Note, however, that when a judicial sentence imposes more than the moral law of nature requires, the party entitled to restitution should not insist on the plus, especially if the other party is poor.³

³ Noldin, II, pp. 520 sqq.; Tanquerey, III, pp. 234 sqq.; Slater, I, pp. 426 sqq.

3. Cui vel quibus? To whom should restitution be made?

a) Restitution should be made to the lawful owner of the stolen property, no matter whether he be an individual or a community, e. g., the State or a corporation. After the death of the person entitled to restitution his claim passes to his heirs or, if the stolen property has been left to some one as a legacy, to the legatee. Briefly, restitution must be made to him who is the certain and known owner of the property,⁴ and this holds even if the possessor has come into possession of the property at third or fourth hand. Thus if one has taken a stolen object from a thief, he must restore it, not to the thief, but to the legitimate owner. This duty binds even if the object is purchased and the purchaser runs the risk of losing the purchase price by giving the stolen article back to its owner. The reason is that the lawful owner retains the right in his property (“res clamat ad dominum”).

⁴ “Restituendum est domino certo et noto.” Cfr. Noldin, II, pp. 520 sqq.

b) If the owner is unknown (dominus incertus), careful inquiry (debita diligentia) must be made to find him. This inquiry must comply with the prescriptions of the positive law or else with custom. If the owner cannot be identified, the one who possesses the object in good faith may retain it, though under certain conditions it may be more advisable to give the property to the poor or to use it for charitable purposes.⁵

⁵ Numb. V, 7 sq.—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 5, ad 3.—Cfr. St. Alphonsus, Theologia Moralis, l. III, n. 580: “The question is asked: if the property, after due diligence has been employed to find the owner, has been handed over to the poor and afterwards the owner appears, whether it must be restored to him. . . . When, all the circumstances having been considered, it is no longer possible for the owner to be found, then the poor person acquires absolute ownership of the thing without any burden of restitution; but when, even after diligence, there still remains some hope of finding the owner of the thing, then the poor person does not acquire ownership of it and therefore ought to preserve it for the owner and restore it to him if he appears.” (Ed. Gaudé, II, 78).—Noldin, Summa Theol. Mor., Vol. II, pp. 522 sqq.

He who possesses a stolen object in bad faith, may not keep it, but should devote it to a pious cause or to the public welfare. If he is poor himself, he may keep a res incerta, which ought to be given to the poor, and thus release himself from the duty of restitution, even if this duty arose out of an unjust act. When doubt exists as to who is the rightful owner of a stolen object, this doubt may extend to a few (say, three or four) persons, or to many. In the former case the property must be restored pro rata to the presumptive owners, unless they agree to some other mode of restitution; in the latter case, e. g., where one has committed a number of petty thefts by using false weights or measures, restitution can be made to the poor or to some charitable institution, but not by temporarily giving better measure or by lowering the price of goods unless the patronage remains about the same, for in this supposition the injured parties could easily be remunerated by this simple device.

c) When restitution has to be made to fire insurance companies, the case is generally one of dominus incertus. Dr. Göpfert lays down the following rules for such cases:

If one has set fire to his own or somebody else’s property, he must make restitution of the insurance received, as follows: (1) If the money was received from a State insurance institution, supported from the public treasury, and the loss affects the whole community rather than the institution itself, restitution may be made to the poor or to some public institution; (2) if the money came from a private insurance company, restitution should be made to that company’s treasury. When it is certain, however, that the money will not go to the real owners (for instance, because it will be embezzled), it may be turned over to the poor or to some pious cause or charity unless the danger of embezzlement can be obviated by other means. As insurance companies often reinsure their risks, up to eighty or ninety per cent., with other companies, it may be uncertain who actually suffered the loss and to how much it amounts. Some hold that these companies really suffer no injury at all, since they fix their premiums according to all the risks incurred, including fraud as well as fire. Hence the real sufferers are the insured property-owners, but as these, on account of their large number, would receive only a very small sum each if restitution were made to them, a charitable cause may be substituted.⁶

⁶ Göpfert, Moraltheol., Vol. II, pp. 209 sq.; cfr. Noldin, II, pp. 530 sq.

d) In regard to debts arising from a written or an oral contract, e. g., deposits or loans, if the creditor and his heirs cannot be ascertained, there is no obligation to donate the money to the poor or ad pias causas, since it is justly regarded as ownerless property under the natural law.

If one is bound to make restitution to two or more persons, but cannot pay them all, he must satisfy their claims in the order of their importance. Hence compensation must first be made to those who have a ius reale, i. e., a right to the property in question, even if the others get nothing. Second in line are those to whom the debtor owes something ex titulo oneroso or ex delicto, e. g., by contract or in consequence of fraud or usury. Among the debts ex titulo oneroso the first to be paid are the debita privilegiata, i. e., court fees, expenses incurred for food and lodging, the wages of servants and working-men, etc. They take precedence even over the debita ex delicto. Finally, certain debts (debita certa) take precedence of uncertain debts (incerta). Uncertain debts are those payable to persons whose identity is not fully established. Debts secured by pawns or mortgages precede those not so secured.⁷

⁷ Reg. Iur. in VI° Decr. Bonif. VIII, n. 54: “Qui prior est tempore, potior est iure.”—Cfr. H. Busembaum, Medulla Theol. Mor., l. III, tr. 5, c. 2, dub. 7, a. 2, n. 2: “If restitution is to be made by reason of an unjust action, certain debts—that is, those whose owners are known—must be restored before uncertain ones, because the former are owed to their owners by natural law, whereas the latter are owed to the poor by positive law alone.” Cfr. Noldin, II, pp. 524 sqq.

If several creditors have equal claims, they must be satisfied equally. If the property has passed into the hands of a receiver, those obliged to make restitution should pay, not the receiver, but the creditors, unless the civil law provides otherwise.

4. Quando? When must restitution be made? This question is solved by St. Thomas as follows: “As it is a sin against justice to take another’s property, so also it is to withhold it, since to withhold the property of another against the owner’s will is to deprive him of the use of what belongs to him, and to do him an injury. Now it is clearly wrong to remain in sin even for a short time, and one is bound to renounce one’s sin at once, according to Ecclus. XXI, 2: ‘Flee from sin as from the face of a serpent.’ Consequently one is bound to immediate restitution, if possible, or to ask for a respite from the person who is empowered to grant the use of the thing.”⁸ And again: “Although the precept which enjoins the making of restitution is affirmative in form, it implies a negative precept, forbidding us to withhold another’s property.”⁹

⁸ Summa Theol., 2a 2ae, qu. 62, art. 8: “As it is a sin against justice to take another’s property, so also it is to withhold it, because by the fact that one withholds another’s property against the owner’s will, one prevents him from the use of his own property and thus does him an injury. But it is clear that it is not lawful to remain in sin even for a short time, but every one is bound to abandon sin at once according to the saying: Flee from sin as from the face of a serpent (Eccli. xxi, 2). And therefore every one is bound to restore at once, if he can, or to seek a delay from him who can grant the use of the thing.”

⁹ Ibid., ad 1: “The precept of making restitution, although affirmative according to its form, nevertheless implies in itself a negative precept, by which we are forbidden to withhold another’s property.”—Noldin, II, pp. 531.

Restitution, therefore, must be made at the first opportunity that presents itself, if it can be done without serious inconvenience (sine gravi incommodo); at least one must be sincerely resolved to make restitution as soon as possible (quamprimum.) This duty not only binds the possessor in bad faith, but he who is in good faith must likewise make restitution to the lawful owner as soon as he perceives that property which he has in his possession belongs to another.

To resolve not to make restitution, or willfully to postpone it, is a new sin, and any additional damage or loss that results to the owner from such postponement, if intended or foreseen, involves a further duty of restitution. If the postponement is caused by real want, fear of scandal or infamy, or dread of losing one’s financial status under the law, it is excusable, provided the creditor is not in dire need. In every case the debtor must be ready to reduce his living expenses as much as possible in order to be enabled to make restitution.

If restitution has to be made in consequence of a formal act of injustice, but is postponed for sufficient reasons, any loss or damage resulting from the delay must also be made good, unless the creditor himself might easily have prevented it, but knowingly and willingly omitted to take the proper precautions.

In the case of contractual debts the debtor is not liable for damage that arises to the creditor if the payment of the debt is delayed without any fault of his.

5. Ubi? In determining the place where restitution should be made, it is necessary to distinguish between him who possesses the property of another in good faith and him who possesses it in bad faith.

a) The possessor in good faith must make restitution “ibi, ubi est res,” that is, he is bound to notify the owner that the property is in his possession and will be surrendered to him at his own cost or risk. The cost and risk of transfer, therefore, fall upon the owner, for, “Casum sentit dominus,” or “Quod casu perit, domino perit.” The possessor who is in good faith satisfies his obligation if he hands the property over to a reliable agent for delivery to the lawful owner.

b) He who in bad faith possesses property belonging to another as well as he who has injured another unjustly, must make restitution “ibi, ubi est dominus,” that is to say, he must return the property to the place where it would be if he had not taken, damaged, or unjustly retained it. This duty binds until the property has been restored to its rightful owner. The possessor malae fidei has, moreover, to bear the cost of transportation, unless the owner himself has designated the manner of its return, or expressly left it to the choice of the debtor, and the latter chose a common and safe carrier, or the matter has been attended to by a court of justice.

The question whether the possessor malae fidei would be responsible for the cost of transportation in case it exceeded the value of the property itself, has become futile under modern conditions, where transportation is both cheap and safe.¹⁰

¹⁰ Cfr. St. Alphonsus, Theol. Mor., l. III, n. 597 sq. (ed. Gaudé, II, 82 sqq.); Idem, Homo Apostolicus n. 65.

6. Quomodo? In what manner should restitution be made? He who cannot restore the whole of what he owes to another, must restore as much of it as he is able. Restitution need not per se be public, for the restituens may and must protect his good name or reputation. Only if the injury inflicted was notorious and resulted in public scandal, must restitution be made publicly, in order that not only the damage, but also the scandal, may be repaired.

a) Restitution need not be made in person, but through any reliable agent, e. g., the confessor, who in such cases must take due precautions that the seal of the confessional is not endangered. If the confessor feels that he would draw suspicion on himself by serving as agent, he need not assume the task.

If the unjust possessor cannot restore the stolen object in kind without danger to his good name, he may return an equivalent, but is bound to make compensation for any loss that may result to the owner from the fact that he does not receive back the stolen property in individuo.

If the stolen property cannot be restored to the owner sub titulo restitutionis and without disclosing the identity of the thief, the form of a gift or present may be chosen. In that case, if the donee makes a present in return, this may not be accepted if the principal motive for making it was to make a return for the present received, but it may be retained if the receiving of the present was the occasion rather than the cause of the return being made.¹¹

¹¹ Slater, A Manual of Moral Theology, Vol. I, p. 435.

Restitution may, finally, be made creditori creditoris, that is to say, by paying a debt owed to a third party by the creditor, provided it is of equal amount, and the creditor is reliably informed of the payment made.

A declaration of bankruptcy does not excuse the debtor from paying his creditors, if he becomes able to do so later, for the assignment of his property for the benefit of his creditors (cessio bonorum) merely assures him the protection of the law and a temporary respite.

In making restitution care should always be taken that it is not done in such a way as to bring suspicion upon an innocent third party.

b) If the confessor undertakes the task of making restitution for a penitent, he should see to it:

α) That the seal of confession is kept inviolate. The theory that a penitent, in commissioning the confessor to make restitution in his name, thereby relinquishes his right to have the matter kept secret, is untenable. Hence the confessor must appoint another to make the restitution or divide the sum to be repaid into installments if he has reason to fear that the real author may otherwise be discovered.

β) That the party to whom restitution is made gives a receipt for the article or sum of money restored, and that this receipt is handed to the person making the restitution.

γ) That, if the person to whom restitution is due, cannot be found, the sum involved be given to the poor.

If the rightful owner refuses to accept the restitution offered, the money reverts to the penitent. If the latter cannot be found, the confessor may keep the money,¹² but is advised to donate it to some charitable cause.

¹² Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 177 sqq.; St. Alphonsus, Theol. Mor., l. III, n. 696 sqq. (ed. Gaudé, II, 161 sqq.); Lehmkuhl, Theol. Mor., Vol. I, 11th ed., n. 1228–1238.

Readings.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., n. 129 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 579 sqq., 676 sqq. (ed. Gaudé, II, 71 sqq., 151 sqq.).—J. E. Pruner, Lehre vom Recht, Vol. II, pp. 50 sqq.—F. Lorinser, Die Lehre von der Verwaltung des hl. Buszsakramentes, 2nd ed., pp. 271 sqq.—F. A. Göpfert, Moraltheologie, Vol. II, 6th ed., pp. 289 sqq.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 234 sqq.—T. Slater, S.J., A Manual of Mor. Theol., Vol. I, pp. 424 sqq.