The Roots of Restitution

The Roots of Restitution.—The roots or sources of restitution are usually reduced to two, according to the following two general kinds of injury inflicted on others:

(a) unjust damage, which is the loss inflicted, on the goods of another, without advantage to the offender, as in murder or incendiarism;

(b) unjust possession, which is the loss inflicted on another by the possession of his goods without his consent or against his will, to the advantage of the offender, as when a murderer steals from his victim, or an incendiary gets the insurance from the house he destroyed.

Unjust damage that obliges to restitution is only an act (or omission) that is both injurious (being a guilty violation of another’s strict right) and productive of loss. Hence the following conditions:

(a) the act must be objectively unjust, a contravention of a strict right in re or ad rem (see 1695 sqq.), for example, stealing or keeping back the wages due an employee. But it is objectively unjust to deprive another of a non-strict right (e.g., the right of a beggar to an alms) by unjust means, such as force, fraud, calumny, etc. If a neighbor is not hindered from his strict right and unfair means are not employed, there is no objective injustice (e.g., when a merchant improves his place of business and thus draws away customers from a rival merchant);

(b) the act must be efficaciously unjust or the true cause of the loss which another suffers, for one is not responsible for what does not proceed from one’s act. An act is not efficaciously unjust, therefore, if it is only the occasion of damage (e.g., Titus steals and Balbus imitates him; Claudius steals, and on account of circumstantial evidence not arranged by Claudius, Sempronius is arrested and sentenced to prison), or if it is only a conditio sine qua non (e.g., Caius gives whisky to Julius, who needs its stimulation to nerve himself for a crime), or if it is only an accidental cause (e.g., Titus steals a small sum of money from a miser, and the latter, to the great surprise of Titus, becomes insane);

(c) the act must be subjectively unjust, that is, culpable and imputable; for one is not bound to satisfy for acts that are inculpable or not imputable (see 97 sqq.). There must be either theological culpability, that is, the intention to harm another, which is sinful before God (e.g., he who purposely sets fire to his neighbor’s barn), or juridical culpability, that is, carelessness which causes injury to the legal right of another (e.g., he who lights a fire near his neighbor’s buildings and by his absent-mindedness permits the buildings to catch fire).

Some Causes That Remove or Diminish Theological Culpability.—(a) Mental derangement or passion (e.g., great fear or anger) may make an injurious act unintentional and so take away natural liability for restitution (see 40 sqq.), but the civil law does not always admit the excuse, and after sentence the offender is bound to pay.

(b) According to some authorities, error about the extent of the harm that is being done, if invincible, excuses from restitution for damage that was not apprehended, as when a thief throws a gem into the ocean, thinking that it is only an imitation gem. But the offender would be held for the entire loss, if sentenced.

(e) Error about the person injured, even though invincible, probably does not excuse from restitution, if the intention was to harm a class (e.g., Sempronius intends to kill Balbus, because the latter is a policeman, but by accident he kills another policeman) or an individual (e.g., Caius intends to kill Titus and by mistake kills Claudius, the twin-brother of Titus).

(d) Error about the thing injured, even though invincible, probably does not excuse from restitution, if the intention was to do damage (e.g., Julius puts poison in a plate in order to kill his neighbor’s dog, but the cat takes the poison and is killed).

Restitution for Damages That Are Only Venially Sinful but Seriously Harmful.—(a) When one injurious act is committed (as when through slight carelessness one sets fire to one’s neighbor’s chicken coop), some deny, but others affirm, the duty of restitution, while still others distinguish according to the full or only partial advertence to the sinfulness of what is done. Of those who hold for restitution, some think that all the damage should be repaired, since all was caused; but others think that it suffices to repair part, since the culpability was limited.

(b) If several injurious acts, which taken singly are slight but taken together are serious, were done to the same person (e.g., a waiter breaking dishes at various times while working for the same proprietor), restitution is due as soon as the sinner realizes the amount of harm he has caused; but it is disputed whether the obligation is grave or light. If the injuries were done to different persons (e.g., a boy breaking windows in many houses in the neighborhood), there is more probably only a light obligation.

Restitution on Account of Law for Damages That Are Only Juridically Culpable.—(a) Before sentence of court there is no obligation of restitution, for it would be too heavy a burden to impose this in view of the absentmindedness of so many persons and the numerous distractions one encounters.

(b) After sentence of court there is an obligation of restitution, for the law which gives the court a right to impose it is reasonable, since juridical fault is often accompanied by theological fault, and moreover men will thus be led to a greater prudence in the care of their own goods and in respect for those of others.

Restitution on Account of Contract for Damages That Are Only Juridically Culpable.—(a) Express contract obliges to restitution even for light fault (i.e., the omission of precautions taken by the more prudent), or most light fault (i.e., the omission of precautions taken by the most prudent only), or, if so stipulated, for no fault at all.

(b) Implied contract perhaps also obliges to restitution for juridical fault, for it seems that equity requires one to make good the losses caused by the absence of a care which the contract took for granted. Thus, if the advantage is with the bailor alone (e.g., gratuitous deposit), ordinary care is expected and the bailee is not held in danger to prefer the bailor’s goods to his own; if the advantage is with both parties (e.g., onerous deposit or loan), it seems that more than ordinary care is demanded and that usually the obligor may give preference to his own goods.

Restitution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers.—(a) If there was theological fault, restitution is due, unless the injured party took the risk upon himself. (b) If there was only juridical fault, it seems there is no natural duty of restitution, since no injustice was done; but a court may oblige to damages.

Two Cases in Which Culpability Seems Doubtful.—(a) When one has inculpably done or omitted something from which damage to another can be foreseen, and one has now become aware of the danger (as when Balbus lights a fire on his own property and sees that a change of the wind makes this fire dangerous for his neighbor’s barn), one must prevent the damage, if this can be done without equal or greater damage to oneself; otherwise one must make restitution.

(b) When one has culpably done or omitted something from which damage to another was foreseen, but has tried, though in vain, to prevent the damage after the cause was placed, restitution is due if the cause was physical (e.g., Claudius gave poison to Titus, and then moved by remorse gave an antidote, but Titus died), since the party who set the cause in operation is responsible; but if the cause was moral (e.g., Balbus ordered a gunman to beat up Caius, but withdrew the order, and the gunman on his own responsibility then assaulted Caius), restitution is not due when the revocation ends one’s influence upon the damage that ensues.

Three Kinds of Unlawful Possessors.—The second root of restitution mentioned above (1762) is unjust possession, which includes the acceptance or the retention of another person’s goods against the latter’s will. There are three kinds of unlawful possessors:

(a) the possessor in good faith, who is one that has been invincibly ignorant of the unlawfulness of his possession, but now learns his error (e.g., a buyer who discovers that the horse he purchased did not belong to the seller but was stolen property);

(b) the possessor in doubtful faith, who is one that has serious reasons for fearing his possession is unlawful (e.g., the buyer of a horse learns that the seller is known to have sold some stolen property, or that the price he charged for the horse was remarkably small);

(c) the possessor in bad faith, who is one that knows his possession is unjust (e.g., a buyer who purchases a horse which he knew had been stolen by the seller).

Obligations of the Possessor in Good Faith in Reference to the Property Itself.—(a) If the property is still in his keeping, he is generally obliged to return it to the owner, for a thing calls for its owner. An exception would be the case in which the possessor can not return the property to the owner without a greater loss to his own property.

(b) If the property has perished, the possessor is generally obliged or not to restitution according as he has been enriched or not by the property; for one person should not be enriched at the expense of another, but property perishes to its owner.

(c) If the property is in possession of a third party to whom the possessor transferred it, he is generally obliged or not to restitution to the third party, on the latter’s dispossession, according as he has been enriched or not by the third party’s goods; for if he received nothing for the goods, he is clearly bound to nothing, but if he received payment, he must indemnify the buyer who is evicted for lack of title.

Obligations of the Possessor in Good Faith in Reference to the Fruits of the Property.—(a) He must restore the fruits of the thing itself that are in existence, for the thing fructifies to its owner. Hence, he should restore to the owner the natural fruits (e.g., the fruit on the owner’s trees) and the civil fruits (e.g., the money received from hire of the owner’s horse).

(b) He must restore the fruits of the thing itself which are not in existence, but from which he has been enriched (e.g., the net profit from last year’s crops which the possessor has in the bank).

(c) He is not obliged to restore the fruits of his own labor or industrial fruits (e.g., the extraordinary interest derived from the owner’s money through the good judgment and energy of the possessor), nor the fruits that he consumed without enrichment (e.g., the vegetables he gave away or wasted).

Rights of the Possessor in Good Faith in Deducting Expenses.—(a) He may deduct for all expenses that have benefited the owner, that is, for all the money he spent in necessary or useful ways in preserving or caring for the property. (b) He may not deduct for expenses that have not benefited the owner, or which the owner would not have reasonably authorized, such as special beautification of the property. But he may take away such adornments added by him as can be removed without injury to the property.

Obligations of the Possessor in Bad Faith in Reference to the Property Itself.—(a) If the property is still in his keeping, he must return it to the owner, for a thing calls for its owner. But if the actual possessor had the property from the thief and could not restore it to the owner without serious loss to himself, it is held by some that he could return it to the thief in order to recover his money.

(b) If the property has perished or restitution of it has become impossible, he must compensate the owner, even though he has not been enriched, unless the goods would have perished equally with the owner; for he is then the efficacious cause of the loss. The same principle may be applied to damages through deterioration. The civil law often holds the thief responsible, no matter how the goods perished in his hands.

(c) If the property is in possession of a third party who bought it in bad faith from the possessor in bad faith, the seller is not bound to restitution to his purchaser on the purchaser’s eviction, unless there was agreement to that effect; for he who buys, knowing that there is no good title, buys at his own risk.

Obligation of the Possessor in Bad Faith in Reference to the Fruits of the Property.—(a) He must restore the natural and civil fruits, even though the owner would not have obtained them from the thing, but he may keep the industrial fruits.

(b) He must make restitution for the profits lost and the losses suffered by the owner through the unjust deprivation of his property, for these are damages of which the possessor was the unjust and efficacious cause.

Obligations of the Possessor in Doubtful Faith Who Began Possession in Good Faith (Supervening Doubt).—(a) If he does not culpably neglect attempts to settle his doubt, he becomes a possessor in good faith. If the doubt is settled against him, he must restore (1771); if the doubt continues, he may retain possession and prescribe (i.e., acquire ownership through long exercise of ownership rights), for presumption favors the possessor, but he must he willing to restore, should another appear as the rightful owner.

(b) If he culpably neglects attempts to settle the doubt, he becomes a possessor in bad faith. If the doubt is settled against him, he must restore (1800), at least for the time during which his culpability was grave; if the doubt continues and its settlement is impossible through his fault, it seems that he should share ratably with another claimant according to the strength of the respective claims; if the doubt continues and there is no other claimant, it seems that he may act on the principle that presumption favors the possessor.

Obligations of the Possessor in Doubtful Faith Who Began in Bad Faith (Antecedent Doubt).—(a) If the property came to the possessor in doubtful faith without legal title (e.g., by violence), he has the obligations of one in bad faith, for presumption favors the former possessor.

(b) If the property came to him by legal title (e.g., by gift or sale), but from a former possessor of doubtful or suspected faith (e.g., one who seemed to have the property through theft), he must attempt to settle the doubt. Should the doubt nevertheless continue, some think he should divide it with another probable claimant, but others believe he may retain all.

(e) If the property came to him by legal title and from a former possessor in good faith, he must attempt to settle the doubt; but if the doubt remains in spite of his inquiries, he may retain the property in good faith, as long as matters continue in the same state.