Article — Koch–Preuss
Article 4: Restitution for Damage Done to the Property of Others
- All ill-gotten gains must be restored and all unjustly inflicted damage must be repaired in accordance with the rules laid down in a previous Section of this treatise.1
1 V. supra, pp. 379 sqq.
To appropriate another’s property in extreme necessity, in order to save oneself or others from death, for instance, in time of famine, is not a violation of justice and hence does not impose the duty of restitution. Life is more than food, and the body more than the raiment.2 This teaching is acknowledged even by the civil law.
a) The so-called domestic thefts (furta domestica), committed by children against their parents, by wives against their husbands, etc., do not entail restitution unless the stolen sum is considerable. It is assumed that there is a sort of communism in family life, and parents and husbands do not take such things seriously.
b) Thefts committed by servants call for a distinction. If the stolen goods were ordinary eatables and consumed, i. e., not given away or sold, no restitution is involved. But if money was stolen, or valuables ordinarily kept under lock and key, or extraordinary and expensive delicacies, the damage must be repaired. If servants appropriate things belonging to their masters or employers on the plea that they were not properly paid for their services (occult compensation) they are obliged to make restitution.3
3 On occult compensation see supra, pp. 366 sq., 418 sqq.—Cfr. the propositions condemned under Innocent XI, n. 37.
c) He who sets fire to his own property, or to the property of others, and collects the insurance, is responsible to the insurance company for the resulting loss.
Since in cases of restitution arising from fire the party to whom compensation is to be made is as a rule dominus incertus, the money may be turned over to pious causes.4
4 A. Lehmkuhl, S. J., Theol. Mor., Vol. I, 11th ed., n. 1359: “An incendiary, whether he destroyed his own property or another’s, must make restitution. But if it is asked to whom restitution ought to be made, there can be a certain practical difficulty if at times the matter can only with difficulty reach the true owners. Wherefore I say: 1. If the insurance institution is public, i. e., belongs to the commonwealth itself or to the province, restitution can be made to the poor or to public causes. 2. If the insurance institution is private, restitution is owed proximately and of itself to this institution. But if this institution itself has again insured itself and its losses in part, so that insurance of a second kind (reassecuratio, re-insurance) exists, certainly part of the restitution is owed to it. 3. Nevertheless, there are several reasons why, in place even of a private institution, the poor or pious causes can usually be chosen, to whom restitution may be made. Namely: a) Often in insurance companies so many hold ‘shares’ that the sum of restitution, although grave in its entirety, nevertheless when distributed among individuals is grave matter for no single owner. b) Reinsurance is customarily made, and that for the greater part of the thing insured, but it is customarily made with several and different institutions, nor can it be known with which one or ones that damaged thing which gave rise to the restitution owed was reinsured, unless this very matter is disclosed to the principal insurance institution; this indeed can be full of dangers. c) Finally, it is not so much the insurers as rather the insured, or their whole number, who in fact suffer damage from intentional fires. For the insurers, in determining the premium to be paid annually, certainly take account of all fires which in fact customarily occur, even intentional ones; otherwise the annual premium would have to be reduced, lest it be greater than is just. Therefore the insured are forced to pay a higher annual premium because of the intentional fires themselves, so that they suffer unjust damage from incendiaries. But the number of those who are thus harmed is so great that, because of their multitude, restitution may be judged to devolve upon the poor or pious causes.”
- There can be no doubt that the unjust appropriation of public property, e. g., wood from a communal forest, game or fish caught without a permit, profits made from smuggling or de- frauding the customs, violates commutative justice and therefore carries with it the duty of restitution. The reason is because in a well-ordered community such acts mean an unjust enrichment of a few at the expense of the many.5 Restitution in such cases must be made, if it can be done without serious inconvenience, not to the poor, but to the public treasury of the community upon which the injury was inflicted.
5 Cat. Rom., P. III, c. 8, qu. 10: “Those are included in this crime of rapacity who fail to pay, or intercept and transfer to themselves, the customs duties, taxes, tithes, and other things of this kind which are owed to the rulers and magistrates of the Church.”—Cfr. St. Alphonsus de’ Liguori, Theol. Mor., l. III, n. 617 (ed. Gaudé, II, 99); Gury, Comp. Theol. Mor., Vol. I, n. 707–717; J. Schwane, Die Gerechtigkeit, pp. 182 sqq.; A. Wagner, Die sittlichen Grundsätze bezüglich der Steuerpflicht, pp. 50 sqq., 73 sqq.
Tax and customs collectors who have neglected to collect the revenues required by law, are obliged to make restitution if the neglect involved any moral guilt on their part.
a) To bribe officials in order to cause them to violate their oath of office, is to co-operate in injustice and imposes the duty of making restitution in a subsidiary manner, i. e., if the bribed official does not make good the loss, the briber must do so.
If an official suffers personal loss through fraud committed against the commonwealth, that loss must be repaired by the defrauder.
b) He who unjustly evades the duty of serving his country when drafted into the army or navy, commits an act of injustice towards the State, but is not obliged to make restitution to a substitute who may be drafted in his place, because the latter does not lose a strict right, but merely an accidental privilege. But if one directly employs unjust means to force another to serve in his stead, he owes that other restitution.6
6 Gury, Comp. Theol. Mor., Vol. I, n. 718 sqq.; cfr. Lehmkuhl, Theol. Mor., Vol. I, 11th ed., n. 1175 sqq.; Gennari, Consultazioni, Vol. I, 2nd ed., 127 sqq.; L. v. Ruymbeke, “Peut-on se soustraire à la loi en matière de conscription militaire?” in La Nouvelle Revue Théologique, Tournai, 1905, pp. 371 sqq.; Noldin, Summa Theol. Mor., Vol. II, pp. 498 sq.
c) For those who evade the payment of taxes, the duty of making restitution is quite clear in some cases, but not so clear in others.
Officials who co-operate in this misdemeanor in spite of their oath of office, are plainly bound to make restitution. The same is true of those who unjustly influence officials to defraud the public treasury by means of bribes, promises, etc.; they are liable to subsidiary restitution of the damage done, that is, they must make good the damage if the guilty officials do not do so. Again, the case is quite clear if one has paid his taxes in counterfeit money or with a worthless check; he must repair the loss thus caused to the public treasury or to the individual official who may have been compelled to make good the deficiency out of his own pocket.
d) As regards non-payment of taxes by those legally obliged to pay them, theologians differ concerning the duty of restitution involved.
The sententia communissima et probabilior of the older school was that the duty of paying taxes is based on commutative justice and therefore involves the obligation of making full restitution. Some held that this duty obliged only on condition that the taxes imposed were really necessary for the public welfare and that they were assessed with strict impartiality. If this were not the case, it would not be necessary (post factum) to impose restitution as a strict duty upon the citizen who by fraudulent means had escaped paying his assessed share. Those who took this view regarded such cases as instances of occult compensation.
Another school of moralists bases the duty of paying taxes simply upon legal justice (iustitia legalis) and holds that, as there is no question of commutative justice involved, there can be no strict duty of restitution. Some who take this view think that the duty of restitution exists, but only so long as the misdemeanor is not legally outlawed. A third group regards all, or nearly all, civil tax laws as purely penal (leges mere poenales), i. e., as obliging merely under a legal penalty, but not in conscience. Several representatives of this group hold that imposition by the State of heavy fines for tax defraudations is a sufficient compensation for the losses suffered by others.7
7 See the Kirchenlexikon, Vol. I, 2nd ed., 85 sq.; Hamm, Zur Grundlegung und Geschichte der Steuermoral, pp. 125 sqq., 309 sqq.; Schindler, Lehrbuch der Moraltheologie, Vol. II, ii, 800 sqq.
Dr. Ryan rightly says that the application of the principles of Catholic Moral Theology to the subject of taxa- tion in praxi is “not entirely simple, owing to the complexity and injustice of our tax system and the very large proportion of persons who habitually understate their taxable property. The principal form of taxation, at least in local and State jurisdictions, is what is known as the general property tax. Not only does this directly violate the ethical principle of taxation in proportion to ability to pay, as determined by comparative sacrifices, but it is apportioned and administered most inequitably, and it is evaded in wholesale fashion. In the words of Professor Seligman, ‘the general property tax, as actually administered, is beyond doubt one of the worst taxes known in the civilized world.’”8 In these circumstances, the conscientious citizen cannot be required to do more than pay that proportion of the full amount which is paid by the majority. If the prevailing understatement of taxable property amounts to twenty-five per cent., the citizen who pays on more than three-fourths of his goods contributes more than his share.9 This general rule of action may properly be applied to other kinds of taxes where evasion is considerable and notorious. Of course, the conscientious citizen will not take advantage of it until he is morally certain of the facts. . . .
8 Essays in Taxation, N. Y. 1895, p. 61.
9 Cfr. Tanquerey, De Iust., n. 597.
“As a rule, the citizen is not bound to pay taxes until the amount due from him has been defined by the fiscal authorities. When he is legally required to furnish a statement of his property, he is obliged by legal justice to comply. Is he obliged to volunteer such information? For example, is a person morally bound to inform the authorities that his income is sufficiently large to subject him to the income tax? If he does not give this spontaneous information he will escape. The income tax law re- quires the citizens to make such a statement, and penalizes them for failure to do so when their evasion of the tax has been detected. It seems clear, therefore, that the citizen is bound by legal justice to provide a statement of his taxable property, not only in response to an official requisition, but sometimes in the absence of such a requisition.”10
10 Ryan, The State and the Church, pp. 268 sq.
e) Tariff duties are probably purely penal, “not only because of the common popular conviction, but because they are saturated with economic and ethical inequalities.”11
11 Ibid., p. 269.
Readings.—H. Noldin, S. J., Summa Theol. Mor., Vol. II, pp. 477 sqq., 331 sqq.—A. Tanquerey, S. S., Synopsis Theol. Mor. et Pastor., Vol. III, pp. 249 sqq.—M. Cronin, The Science of Ethics, Vol. II, pp. 611 sqq.—J. A. Ryan, Distributive Justice, pp. 101 sqq.—F. Suarez, De Legibus, l. V, c. 13–18.—Th. Meyer, S. J., Inst. Iuris Nat., Vol. II, pp. 654 sqq.—A. Lehmkuhl, S. J., Theol. Mor., Vol. I, pp. 670 sqq.—V. Cathrein, S. J., Moralphilosophie, Vol. II, 5th ed., pp. 656 sqq.