CHAPTER V: On the Circumstances of Restitution

St. Alphonsus, III, 676; ed. G., II, p. 151; H. Ap., X, 104; Lugo, disp. 20; Billuart, Diss. VIII, art. 14-19; Laymann, l. 3, s. 5, tr. 2, c. 10; Salmanticenses, tr. 13, c. 1, where at length; Lehmkuhl, I, n. 1222.

1007. The things to be treated here are set forth in the following general principle:

Restitution must be made at the time, place, and mode in which the right and utility of the damaged person require it, and in which it can morally be done by the debtor, that is, without grave inconvenience which he would suffer in his own thing beyond the debt (III, 676). - This principle indeed contains all things, but for greater understanding of the matter it must be explained a little more broadly.

1008. PRINCIPLES. I. Restitution which obliges from delict or from possession of another's thing must be made as soon as it can be made. For natural right requires that another's thing not be retained when the owner is reasonably unwilling. Recall the things said in n. 926.

Hence: 1. He who adverts to the obligation of restitution and without just cause defers restitution for a notable time sins gravely, if thence the owner suffers grave damage, or restitution becomes impossible. - Otherwise, if the delay were moderate, for example of 20 days, and the creditor neither suffered grave damage nor was judged gravely unwilling (III, 679).

2. He who defers from a just cause, for example to avoid scandal, infamy, etc., does not sin. But in truth, if the debt is from delict, a thief, although he justly defers, is held to make good the whole damage which the creditor thence suffers, because through the theft previously perpetrated he exists as the cause of the damage. Thus from the common and more probable opinion. Otherwise if the debt is from another title, for example from contract, or from possession of good faith. - Otherwise also if the owner deservedly is judged not to exact this; or if the damage was in no way foreseen (III, 680).

Note. Another opinion, not improbable, says that a thief, if he justly defers, cannot be obligated to compensate damage coming upon the owner from the delay. The reason is that the thief, who is supposed to wish to restore, ceases to be an unjust damager as regards new damages. Besides, the owner is judged to consent to the delay, if the cause of deferring is just.

1009. II. Restitution from contract, or rather payment, must be made at the time concerning which agreement was made. Where the time was not determined, the debtor does not sin gravely if he does not restore until he is admonished by the creditor. The reason is that the presumed will of the creditor so bears.

Except, unless the creditor omits to warn because of fear, forgetfulness, or inability; or unless the debtor obligated himself with an oath, because an oath of itself obliges as soon as possible. Indeed, although the creditor seeks payment, he is not to be condemned of grave fault who defers to pay a debt from contract without grave damage of the creditor; because such delay does not seem gravely injurious, nor therefore is the creditor judged gravely unwilling (III, 678, 680).

Note. A creditor, unless he is driven to this by pact or sentence of a judge, is not held to accept the debt in parts. Thus from civil and natural Law.⁰¹

1010. PRINCIPLES. I. A possessor of good faith satisfies if he restores the thing in the place where he possesses it. Hence, he is not held from justice to transmit the thing to the owner if perhaps the owner dwells in another place. The reason is that he is not held to restore to the previous state him whom he did not cast down from it through formal injury (cf. n. 935). Otherwise nevertheless from charity, short of grave inconvenience.

1011. II. A possessor of bad faith and an unjust damager must restore the thing in the place where the owner would have had it if it had not been taken away, and this at their own expense. The reason is that the owner unjustly damaged must be preserved unharmed (cf. n. 941).

As regards expenses to which the thief is held in order to restore the thing to the owner, some oblige him to any at all; others only to those which are equivalent to the value of the theft. - But the more probable opinion with Lugo (disp. 20, n. 190) says that a thief generally is held to transmit to the owner the thing, or the value of the thing if the thing itself cannot be sent, although the expenses of transmission would be twice greater than the debt. But if the expenses surpass this proportion, restitution can either be deferred, if namely there is hope of later preserving the owner unharmed, or, if such hope is lacking, must be made to the poor, from the presumed will of the owner. It is also probable that a thief can defer restitution which would have to be made with grave damage to himself, provided the owner does not suffer similar detriment from the delay of restitution (III, 598, 697, 702). - Besides, as Aertnys notes (l. III, 353), this question today is superfluous in many cases, since the value of the thing can easily be sent almost everywhere among nations.

Note. Those expenses which the owner would have had to make for preserving or carrying the thing can always be deducted by a possessor of bad faith (III, 677).

1012. III. A debtor from contract must pay in that place concerning which there was agreement between the parties expressly or tacitly. Tacitly, that is, according to the laws which have force for various contracts. Regularly, pacts set aside, payment must be made in the place where the contract was entered upon, and at the expense of him in whose favor the contract was made (III, 678; cf. German Code, 269, 270).

1013. It is asked. Whether a debtor is freed if the debt transmitted through a messenger has perished fortuitously or by fault of the messenger?

Resp. Dist. 1. If he was a possessor of good faith and sent the thing through a faithful messenger, so much the more through a confessor, he is freed from the obligation of restitution. The reason is that, fault, delay, and pact being excluded, the thing perishes for the owner or creditor. Yet he would be held after the sentence of a judge if juridic fault had intervened.

2. If he was a possessor from delict, he is not freed. The reason is that a debtor of this sort is held absolutely to render the creditor unharmed, and therefore to undergo every danger, even fortuitous. And although the creditor is presumed to consent to restitution through another, lest the thief betray himself, nevertheless he is not judged and is not held to remit his right as long as he has not been made unharmed (cf. Ami du Cl., 1910, p. 746).

See nevertheless how St. Alphonsus tempers his opinion (III, 704; ed. G., II, p. 172). For he adds: "Because Lessius and Sporer do not dare to condemn the contrary opinion, which frees the thief from obligation, neither do I dare."

3. If he was a debtor from contract, he is freed in the case in which the creditor has ownership of the thing, as in deposit and commodatum. Otherwise, if ownership of the thing is with the debtor, for example if it is a question of paying the price of a thing bought (III, 704; cf. Gury, I, 711).

Even in this case, there are not lacking those who affirm that the debtor is freed if he transmitted the debt through a confessor. See St. Alphonsus (l. c. at the end). Cf. Lehmkuhl, I, n. 1224.

Note. The debtor, whoever he may be, is exempt from every burden: 1. If the creditor, likewise if the law or judge, has designated the person through whom, or the mode in which, he wishes the thing owed to be sent to him. 2. If he left the liberty of choosing the person whom he wished, provided a prudent and faithful person is chosen. - Therefore a confessor, says Konings n. 794, who has assumed upon himself the burden of restoring for a penitent, will prudently ask the creditor by what reason he wishes the thing to be sent to him (cf. n. 1014, 1). Cf. also the things which Aertnys wisely notes, III, n. 357.

1014. PRINCIPLE. Generally it is required and it suffices that restitution be made in that mode by which violated justice is fully repaired, or repaired according to equality. This is established from the notion of restitution (n. 924).

Hence: 1. It is not necessary that restitution be made through the debtor himself; but it can be made through any other, provided the thing is returned to its owner. It can be made, for example, through a confessor, if necessary; but then great caution is needed, both that the seal of confession remain uninjured and that the penitent know that the creditor truly has received the debt, lest any suspicion ever be able to arise against the probity of the confessor.

2. It is not necessary that restitution be made with the owner adverting; because this is not required so that he be unharmed. Thus, for example, a debtor can restore by increasing weight or measure in selling, or the owed work in laboring (cf. 998, 3).

3. Restitution made through a simulated donation is valid, more probably, as is commonly taught. Yet if the creditor, moved by gratitude, should repay another gift, this would have to be restored again to him, because an antidoral donation, in this case, would rest upon a false foundation, and therefore would not be valid (Ami du Cl., 1906, p. 249).

4. In place of restitution, a gratuitous donation made to the creditor by the debtor is also valid, although the latter is unmindful of the debt and does not attend to restitution (III, 700, 2). Say the same of alms, if namely someone ought to restore to the poor.

Let it be noted: a) If the creditor is conscious of the injury done to himself, but ignorant of the author, the restitution is prudently to be manifested to him, so that he cease from every inquiry. A fortiori it must be manifested to one knowing the author of the injury, so that he abstain from enmity, from repetition, from occult compensation. b) If someone has publicly offended against justice, he is also held, at least from charity, to repair scandal (cf. n. 514).

1015. Questions. QUAER. 1. How must restitution be made by domestics?

Resp. 1. A wife and children are held to restore from their own goods. But if they do not have goods of their own: the wife is held by thrift and work to repair the damage, or at least after the death of the husband, in the division of common goods, to compute the debt into her own part; likewise the son is held to bring thefts into the division of the inheritance, if the quantity of the thing taken away is very great, and the father has not remitted restitution tacitly or expressly (III, 542, 546). - 2. Servants, if they are unable to restore without great difficulty, are to be ordered to compensate by extraordinary offices and services as much as they can (cf. n. 907).

QUAER. 2. How must restitution be made for damages inflicted on some private society, for example an insurance society against fires, etc.?

It must be noted that here it is not a question of a public insurance society which belongs to the treasury; in the following question there will be speech concerning this.

Resp. Some opine that it is impossible for restitution to arrive certainly to the true owners, and to each one of these for the part due to him, if it must be made to so-called mutual insurance societies, or at least to those of which there are many members, for example for railways; because after damage has been inflicted on the society and before restitution, perhaps very many members have left it, and it is unknown who they are and in what portion they were members. This seems to us to have force only for the case of the dissolution of the society; for to members who leave the society, others succeed with right to the credits and obligation to the debts of the society. Hence of itself restitution must be made to the administrators of the society.

But in the case in which it were established, for example because of the unfaithfulness of officials, that restitution will not be transmitted to the treasury of the society and distributed to individual members according to their own pro rata part, restitution would have to be made to pious causes (Aertnys, l. III, n. 358; Konings, n. 1040).

The same must be said if it is established that the societies are reinsured; for then, if damage comes upon them, it will certainly be compensated for the greater part. But those whom the damager ought to make unharmed remain unknown in very many cases (cf. Gopfert, II, n. 126).

QUAER. 3. How must restitution be made for damages inflicted on the republic?

Resp. 1. Besides the means perhaps assigned by law, a law of this kind exists in Austria; for Belgium, cf. Haine, II, q. 170, an easy and efficacious mode is given, consisting in this, that the one liable to restitution buy and burn obligations of the public treasury, or public seals for freeing letters from tax (timbres-poste, francobolli), or something else of the same kind. 2. If no apt means is at hand, restitution must be made for pious uses. For such restitution certainly profits the republic, because it will have to spend less on the poor; and besides, in many places, it can be considered as compensation for injuries inflicted on the Church (Konings, 795).