Chapter — Marc, Institutiones Morales
CHAPTER I: On the Obligation of Restoring
St. Thomas, 2. 2, q. 62; St. Alphonsus, III, n. 582; ed. G., II, p. 73; Lugo, disp. 8, n. 17; Lessius, l. I, c. 7, dub. 4; Carriere, III, n. 1021; Vermeersch, o. c., n. 155; Hohenlohe, Grunde der Schadenersatzpflicht. - As to practical cases, besides Lehmkuhl, Genicot, Bucceroni, see Ami du Cl., Tabl. gener., word Restitution, and Linz. Quart. Schr., v. Restitutionspflicht.
There are two things concerning which we must dispute here: 1. the notion and gravity of the obligation of restoring; - 2. the roots from which this obligation arises.
1. On the Nature and Gravity of the Obligation of Restoring
- DEFINITION. Restitution (rursus statuo) is defined: an act of commutative justice by which damage inflicted on one's neighbor through injury is repaired.
Therefore restitution differs: 1. from satisfaction; for satisfaction is the compensation of an offense which was inflicted without external damage; - 2. from payment; for payment is the counting out of a price or the extinguishing of a debt, to which one is held without having inflicted injury, for example the payment of the price for a thing bought.
It is said: an act of commutative justice; therefore, when it is a question of legal or distributive justice alone, there can be no place for restitution strictly so called. But if it is sometimes said, for example in n. 949, 3rd Condition, 3, that something must be restored, this is to be understood of restitution improperly so called, which is rather the necessity of obeying a just law (Vermeersch, de Just., n. 158).
DIVISION. A twofold restitution is distinguished: 1. Restitution in the stricter sense, by which another's thing or its equivalent is returned. - 2. Compensation, by which damage unjustly inflicted and profit ceasing are repaired.
If satisfaction or reparation of the offense is joined to compensation, there is had what in Law is called full satisfaction.
- PRINCIPLES. I. Restitution must be made, in reality or in desire, by precept of natural and positive Law. a) Of natural Law: for nature dictates: As you wish that men should do to you, so you also do to them likewise (Luke 6:31; Matt. 7:12). But each one seeks from his soul the reparation of injury. - Besides, the law of nature intimates that spoliation which is not repaired by restitution is truly prolonged (cf. n. 726). b) Of positive Law: for it is said in Exod. 22:5: If anyone shall damage a field or vineyard ... he shall restore according to the estimation of the damage; and Rom. 13:7: Render to all their due. Hence St. Augustine says: "The sin is not remitted, unless what has been taken away is restored, when it can be restored" (Epist. 153, to Macedonius, n. 20). Cf. Rule 4 in the Sext.
We said 1. Restitution must be made by precept, that is, restitution is not to be made by necessity of means; for it is necessary by the same reason as the omission of theft, and not otherwise. Hence he is not excluded from eternal salvation who in good faith, or because of inability, omits restitution.
- It must be made in reality or in desire; for he who cannot restore is never excused from restitution in desire, that is, he must always have a firm purpose of restoring when he can; otherwise he would retain an affection for an evil thing.
- II. The precept about restitution to be made is affirmative and negative at the same time. It is affirmative according to its form; it is negative insofar as it includes the prohibition of detaining another's thing. Thus St. Thomas (2. 2, q. 62, a. 8, ad 1).
Hence: 1. The obligation of restoring urges always and for always, that is, at every moment, until restitution has been made. - 2. Restitution must be made as soon as it morally can be made, because at no time is it licit to retain another's thing without the owner's consent, at least presumed.01 - 3. He who cannot restore the thing here and now is held, at least according to his condition, to take care that he satisfy his obligation as soon as possible; because one obligated to an end is obligated also to the means. - 4. He who cannot restore the whole is held to the part, if it is a question of a divisible thing (H. Ap., X, 118).
(01) From this, however, it does not follow that sins are multiplied by delay of restitution, if namely the evil will is not morally interrupted (see the things said in n. 328, Rule 2).
- III. The precept about making restitution obliges gravely in grave matter, and lightly in light matter. Thus all.
Hence: 1. He who has stolen a great sum of money from his neighbor, or has inflicted grave damage, is held under grave sin to restore at least that part which completes grave matter, although this in itself would be light. - 2. He who has inflicted light damage is held to restitution under light sin, and with inconvenience proportioned to the thing. Therefore he can more easily be excused from restitution, especially from restitution to be made to the owner himself (III, 534 seqq.).
These things are regular; but let it be noted (III, 706): a) In doubt whether a thing taken away and existing in species is grave or light matter, you are held under grave sin to restore the thing itself, lest you expose the owner to the danger of undergoing grave damage. b) If you
doubt whether you owe more or less, you are held to the less; likewise, if you doubt whether the damage which you inflicted is light or grave, you are not held to compensate except light damage (see n. 44, and 949, 4th Condition). c) Indeed it can happen that there is only a light obligation of restitution, or none, however grave the matter may have been in itself. Cf. the things to be said below in nn. 949, 950.
- Corollaries. 1. He who is unable to restore in one genus of goods is not held to restore in another inferior genus; for example, he who has killed, wounded, or defamed a man is not held to give money, even if he cannot otherwise compensate the damage. The reason is, says St. Alphonsus (III, 627), "because commutative justice obliges to restoring according to the equality of the damage inflicted; but where restitution must be made in a different genus, there is no equality, nor will there ever be any compensation of the damage; for by any money whatever the damage will by no means be repaired, neither in whole nor in part."
Nevertheless, the opposite opinion, which is that of St. Thomas (2. 2, q. 62, a. 2, ad 1), is also probable. - Apply the doctrine of St. Alphonsus to those cases where there is damaging in spiritual goods: for these, as regards themselves, cannot be compensated by money. Besides, often an injury can be repaired in the same order, for example by leading back the scandalized person into the good way, by correcting errors. Noldin, II, n. 464; Ami du Cl., 1911, p. 409.
- A judge or Superior can, for an injury concerning one good, impose that, by reason of punishment, something be furnished from goods of another order, and this sentence must be obeyed.
Moreover the injured person, since he has the right of denouncing before the judge him from whom he has received injury, can accept money from that man, so that he omit the denunciation. Thus, for example, a woman violently oppressed, since she is able to compel the violator before the judge, can, in order to renounce her right, exact money from the scoundrel (III, 556; cf. German Law, § 847). See another example, n. 879, 3, note a.
- Finally confessors can impose on a penitent as a penance, or from equity, that he bestow something upon the injured person.
- PRACTICAL RULES. I. Unworthy of absolution are, grave matter always being presupposed: 1. those unwilling to restore, while they can do this; - 2. those not able to restore, but neglecting to obtain for themselves the faculty of restoring; - 3. those committing to an heir a restitution which they themselves can make by themselves; - 4. those able to restore wholly, and restoring only a part. See nevertheless the things to be said presently under III. - And here it must be noted that absolution is to be deferred for him for whom restitution is morally possible, until he has satisfied the obligation of restitution: "For goods are a certain blood, which is not torn out from the veins except with great force and pain. Hence, if restitution is not made before absolution, it will be made afterward with the greatest difficulty, as experience very much teaches us. - Only some penitent can be excepted who would be of such fearful conscience that no place of doubting concerning him would remain" (III, 681, 682; Praxis Conf., n. 43).
II. With many, especially with the dying, one must act cautiously: 1. If the penitent seems to be in good faith, and no time remains for prudently admonishing him concerning his obligation, or if the admonition is foreseen not to be useful, it must be omitted. - 2. But if the admonition is hoped to be useful, or if the penitent is in bad faith, or in vincible ignorance, he must be admonished concerning his obligation strongly and at the same time sweetly, and helped to carry it out at once. 3. If the obligation is occult and cannot be fulfilled at once, the sick person must be induced to commit the sum of money to the confessor himself, or rather to a faithful man, so that afterward it may be remitted secretly to the creditor; or, if it can be done prudently, to leave that sum in his testament to the same creditor, mention of restitution being omitted. 4. If the obligation is not occult, and cannot be fulfilled at once, let the confessor bring it about that it be fulfilled, whether through the heirs, or through a note to be handed to the creditor, etc.
III. As regards the very quantity to be restored, one must act cautiously in this likewise; for in those causing damage, especially in cooperators, good faith is very frequently found. Hence, if admonition concerning restitution, or concerning its quantity, seems by no means or doubtfully useful, the debtor must be left to his own conscience. But if the thing itself is doubtful, and possession favors the penitent, one must in practice pronounce positively for him (cf. n. 927, note).
2. On the Roots of Restitution
- The root of restitution is the cause on account of which restitution must be made.
The remote and general root of restitution is every real lesion of commutative justice, so that one's neighbor has less than by strict right he ought to have; hence equality must be restored by the rendering of the thing (Viva, de Restit., init.).
The proximate and special root of restitution is distinguished as twofold: a) the thing accepted, or the retention of another's thing. To this root is attached the obligation of restoring or paying from contract. b) Unjust acceptance, or unjust damaging, even if another's thing is not retained (III, 548; cf. St. Thomas, 2. 2, q. 62, a. 6).
For discerning the first root, attention is paid only to this, that another's thing is in the actual possession of this or that man; as regards the second root, attention is paid to the will, to the actions of the damager, insofar as they are directed against the legitimate possessor, under the motion either of concupiscence, as in theft, or of hatred, as in damaging. Therefore from the first root, the quantity to be restored is defined by the quantity of another's thing which you retain in its own species or in equivalent; from the second, by the quantity of damage which you have voluntarily inflicted (Vermeersch, o. c., n. 160).
- PRINCIPLES. I. From the thing accepted there arises the obligation of restoring, if another's thing is found with someone without a just title, although it has come to him without fault. The reason is that a thing always cries out for its owner, and the inequality remains until the thing has returned to its owner; for the one retaining has more than is his, and the other less. No one loses his right except by voluntary consent, or by his own fault of injustice, or by disposition of Law, or by a fortuitous event; and therefore the owner alone of himself enjoys the right of possessing the thing and enjoying it. Hence the axioms of Law: A thing cries out for the owner; - A thing bears fruit for the owner; - A thing naturally perishes for the owner; - No one can be enriched from another's thing (Salmant., tr. 13, c. 1, n. 6).
Note. 1. The obligation of paying a debt from a contract or quasi-contract is reduced to this first root: insofar as payment not made is an unjust retention of that which is owed to another, although the debt has not come from fault.
- But if deceit, fraud, violence, or negligence in fulfilling an office has intervened in entering upon or executing a contract, there arises in these cases also the second root, concerning which something must immediately be said.
- II. From unjust acceptance there arises the obligation of restoring if someone knowingly and unjustly has occupied another's thing, for example by theft, fraud, usury, etc. The same obligation also arises from unjust damaging; for he who damages another, even without his own advantage, takes away from him and, by fiction of law, occupies something, namely that very thing in which he damages him. - Hence, since in both ways the inequality is culpably posited, this must be repaired by an act of justice, that is, by restitution, so that the whole foreseen damage is repaired.
- From these things you will gather: 1. The burden of restoring can arise from one root only, or from both. Thus, for example, a thief who has accepted and retains another's thing is held to restore under both heads. If he has consumed the thing and has not become richer, he is obligated only from unjust acceptance.
Between the two roots there is a manifold difference: a) The first can arise without a harmful action; but not the second, which always arises from a delict, as is sufficiently clear. b) The former can perish without restitution being in fact made, for example if the thing perishes by chance, because it perishes for the owner; not likewise the latter. c) One obligated only from the thing accepted must restore as much as he detains; yet this without his own detriment, because he has not admitted fault. But one obligated from unjust acceptance, or from delict, must restore as much as he has damaged; so that, namely, he render not himself but the other unharmed (Viva, l. c.; cf. Lugo, disp. 8, sect. 2, n. 25).
The burden of restoring from commutative justice does not exist unless at least one of these roots is present. Therefore the sentence of a judge then only introduces an obligation of commutative justice when a root of restitution accedes to it; otherwise it obliges from legal justice alone. Thus, for example, when an informal testament has been rescinded by the sentence of a judge, the inheritance does not pass into the ownership of the testamentary heir, who, if he detains it, is held to restore from the thing accepted. On the contrary, a servant condemned to repair damage inflicted from merely juridic fault is held to furnish this from obedience only, by force of legal justice, because he neither detains another's thing nor is the author of formally unjust damaging (cf. n. 949, 3rd condition). - But the sentence of a judge which protects the right of an author, of the finder of treasure, etc., obliges from commutative justice, since the law itself establishes such rights.