Article — Konings, Theologia Moralis
ARTICLE IV: IN WHAT WAY IS RESTITUTION TO BE MADE?
- Generally it can be said that it is required and sufficient that restitution be made in that way by which violated justice is fully repaired, or repaired to equality, and thus the injured owner is made harmless. Hence 1° of itself, for example the obligation of repairing scandal being set aside, it is not required that it be made openly; indeed, often it cannot be made thus, when the reputation also of the one restoring must be consulted.
2° It is not necessary that restitution be made by the debtor himself, but it can be made by another, provided the thing is returned to the owner. It can sometimes be made through a confessor. Yet great caution is then needed, both that the seal of Confession remain uninjured, and that the penitent, in the case in which some suspicion against the probity of the confessor would have to be feared from some part of it, know that satisfaction has in reality been made to the creditor.
3° It is not necessary that restitution be made while the owner notices; because this is not required in order that he be harmless. Hence the debtor can restore, for example, by increasing the weight or measure in selling, or the work owed in laboring, and in six hundred other ways.
Notes to nn. 791-797 - note sequence 1. (1) H. A. Tr. X. 104. 105. (2) L. IV. 678. (3) H. A. Tr. X. 104. 105. Notes to nn. 791-797 - note sequence 2. (1) L. IV. 680. (2) L. IV. 680. 704. (3) L. IV. 680. 704.
- Questions. - Query 1° Is restitution made through a simulated donation valid?
Resp. Affirmatively, at least more probably. The reason is that for payment it is not required that the debtor externally confess 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 opinion. - Carriere,3 etc., against Billuart.
Query 2° If a creditor, moved by gratitude, repays another gift to him, must this be restored to him?
Resp. Affirmatively. The reason is that that donation is not fully voluntary and spontaneous, as a merely gratuitous donation must be essentially; for it proceeds from an opinion of antidoral obligation or of gratitude, which rests upon a false foundation. - Thus Carriere, against Tamb., etc.
Query 3° In what place, and at whose expenses, must restitution be made?
Resp. 1° If the obligation of restoring is from a thing accepted and retained in good faith, restitution is not necessarily to be made in another place than that in which the thing now exists; nor is such a debtor bound to transmit the thing at his own expense elsewhere, where the owner perhaps now dwells. The reason is that he is not bound to restore the owner into the former state, from which he did not cast him down by formal injury.
Resp. 2° If the obligation of restoring has arisen 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, lest this man undergo damage from the injury of the debtor. Yet the expenses which the owner also would have made can be deducted; and if this man has expended more than the debtor has now expended, even that excess of price which is owed to the peculiar industry of this latter can be retained.
Resp. 3° If a thing must be paid from contract, one must stand by the clauses attached to the contract, if agreement was made concerning the place and mode of transfer. Otherwise attention must be paid to the special laws according to the diversity of contracts, or, if these are silent, to the custom of places.
Notes to n. 792. (1) Wells. p. 599. (2) L. IV. 693. (3) n. 1265.
- Query 4° Must a debtor from delict also pay expenses for sending back the thing to the owner, if those expenses exceed the value of the thing itself?
Resp. 1° Affirmatively, if the excess is not very notable, because both the debtor, by committing injustice, took such a burden upon himself, and the owner is not bound to suffer the loss of his thing. - Thus commonly.
Resp. 2° More probably negatively, however, if those expenses would be greatest with respect to the value of the thing to be sent back. Then, 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 exact that restitution be made to him with any expenses whatever. - Thus Lugo,1 Billuart,2 S. Alph.,3 who says that this is the most common opinion.
But theologians do not agree how great the debtor's loss ought to be for him to be excused from restitution to the owner himself. They hand down this rule sufficiently commonly: When, other things being equal, the damage which the debtor will suffer exceeds the damage of the creditor only twofold, 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, or, if it would be deferred in vain for that end, be made for pious causes. - Thus Lugo,4 S. Alph.,5 etc. Today, however, this controversy can scarcely have place because of the ease of transferring at least the price of the thing elsewhere. (o) p. 475.
Appendix annotation (σ), to n. 793. p. 324. col. 1. I said: other things being equal. St. Alphonsus explains this in these words (L. IV. 598. § Secunda sententia, at the end of the §): "Yet Lugo himself, n. 188, and Croix, n. 373, with Illsung and Haunold, rightly warn that the damage of the creditor and of the debtor must be weighed comparatively to the subject: for it can happen that damage of ten coins with respect to a poor debtor is far greater than damage of one hundred with respect to a wealthy creditor; and so conversely."
- Query 5° Must a debtor restore again if he sent the debt through a faithful person, and it perished by accident or by the fault of a third party?
Resp. 1° A debtor from possession of good faith is bound to nothing; because, fault and agreement being set aside, the thing perishes for the owner, who is the creditor himself. Yet he would be bound after the sentence of the judge, if juridical fault had intervened.
Resp. 2° A debtor from contract is bound to nothing, if it is a question of another's thing existing in nature, accepted as a loan for use or deposit, etc., because the thing perishes for the owner, unless otherwise agreed. It is otherwise if it is a question of a thing owed in genus; because the debtor preserves dominion in it until it has come to the creditor, and he must answer for accidents of the price or thing transmitted until it is handed into the hands of the same.
Resp. 3° A debtor from delict is not freed from restitution and remains bound to it so long as he has not truly made the owner harmless; because he always remains the culpable cause of the damage which this man suffers. - S. Alph.,6 however, does not dare to condemn those excusing a debtor of this kind who sent back the thing owed through a confessor, yet he very much doubts concerning the probability of their opinion.
Except a threefold case, in which the debtor is exempted from every burden, namely 1° if the owner designated the person through whom, or the mode by which, he wishes the thing owed to be sent to him; 2° if the creditor indeed did not choose the person or mode, but left to the debtor the liberty of choosing whom or what he wished, provided one prudent and faithful is chosen; 3° if the person or mode was designated by law or by the judge. - Therefore the confessor who has taken upon himself the burden of restoring for a penitent will prudently ask the owner by what means he wishes the thing to be sent to him.
- Query 6° In what way must restitution be made for damages inflicted upon the Republic?
Resp. It can be done in various ways, namely 1° by letters, even anonymous, to the treasurer either of the Supreme Government, or of the State, or of the County, or of the place, according as restitution must be made to the Federated States, or to the State, County, or some special place, with notification of restitution required from him in the Newspaper destined for this. 2° By restoring to those who were unjustly injured by the Supreme Government, State, etc. (n. 802). 3° If it is a question of restitution owed to the Supreme Government, by buying and destroying paper marked with the sign of the Republic (Stamps of all kinds), or paper money (Greenbacks).
Query 7° What mode of restitution in many cases is rightly suggested to wives, children of the family, servants, and workers bound to it toward husband, parents, master?
Resp. That, if another mode cannot easily be had, they repair the damage inflicted by greater frugality, more diligent care of the household property, supererogatory labor, etc.