Question IV: Concerning Sins Against the External Goods of Fortune, And Concerning Restitution Due for Them

I. The question to be treated. - Sins against external goods are committed by theft, robbery, fraudulence, usury, and other unjust damaging acts, which are prohibited by the seventh precept of the Decalogue and are customarily explained sufficiently in moral theology. In practice, a special difficulty usually arises in the case of restitution; therefore we judge it opportune that this be inspected, especially as regards compensation in material goods.¹ We do not indeed deny that even from injuries committed against other goods, and from other precepts toward the neighbor besides the seventh, there can arise an obligation of restitution; nevertheless in practice, even then the principal obligation is usually reduced to material compensation in real goods, or at least frequently has that joined to it.

¹ Moralists may be consulted where they treat of restitution, especially St. Alphonsus in Th. M., l. III, tr. 5, c. 2; Marc, Aertnijs, Tanquerey, Genicot, Noldin, Prummer, Vermeersch in their manuals; Waffelaert in his work De Iustitia; Reuter, Neo-conf., n. 232-235; Berardi, Praxis-conf.; Aertnijs, Th. P., n. 84-87.

II. Principles and rules to be regarded in the case of restitution. - The confessor ought especially to have these before his eyes:

1. First of all let him attend to this principle: to dispense in these matters and to concede delay does not belong to the confessor himself, but only to the owner. Hence excuse from restitution or delay is to be defined by sole and true necessity, unless the circumstances were such that the confessor could prudently presume the consent of the creditor to delay, or reasonably interpret the intention of the owner.

2. Let him diligently ask what is the nature, the adjuncts, and the conditions of the case, so that he can define whether, how, and how much must be restored, how long the injustice lasted, whether it has already been declared in confession, why it has not yet been restored, etc.

3. When a more difficult case occurs, let him not resolve it immediately, but ask for delay to examine the matter more deeply or even to consult others, and let him enjoin the penitent afterward to return to him. But if the penitent cannot conveniently do this, let him be ordered to consult another learned and God-fearing man; and if he promises that he will do this and shows himself prepared to execute the decision and to perform those things which would be imposed on him, he will be able to be absolved.

4. If, inquiry having been made, the obligation of restitution remains doubtful or uncertain, it cannot strictly be imposed on the penitent; although sometimes a certain partial compensation to be made from equity can opportunely be advised for the various adjuncts.

5. If the obligation of restoring is certain and no cause excusing from it appears, but the penitent, although able, raises difficulties, let the confessor warn him that the sin is not forgiven unless restitution is made, because it is no less evil to retain another's goods against the will of the owner than to take them away, since it is a continued taking away; and consequently that the penitent must choose between these two: whether he prefers to undergo the eternal punishment of hell, or rather to lack the thing belonging to another.

6. When the debtor asserts that he cannot restore either altogether or at least immediately, let the confessor diligently examine the alleged impossibility, and let the one asserting not be believed unless he efficaciously proves it; nor let him be absolved unless he seriously promises that he will restore as soon as he will be able and will make an effort toward this. Namely only grave and ineluctable difficulty is a sufficient cause. Hence the debtor a) is bound to diminish superfluous expenses, to labor insofar as the decency of his state permits, to employ parsimony in food, clothing, and necessary expenses; b) if he objects that he will suffer gravely in reputation, let there be suggested a manner by which reputation may be cared for; c) if there is no sufficient cause of temporary delay, this cannot be conceded; but if there is a sufficient cause of delay alone, definitive remission cannot be conceded; d) if the whole cannot be restored at once, let it be returned by parts as soon as possible.

7. Therefore let the confessor beware lest he be credulous as to difficulties which penitents of this kind are wont to oppose: for some pretend impotence to restore, but often it is weakness of will rather than incapacity or weakness of powers; others with every effort solicit delay; but let the confessor know that it is not in his power to concede delay, because it is not only illicit to snatch away another's goods but equally illicit to retain them.

8. Namely, as moralists teach, the following are unworthy of absolution: a) those unwilling to restore when they can do this; b) those not able to restore, but neglecting to obtain for themselves the faculty of restoring; c) those delaying restitution much without an excusing reason, or committing to the heir a restitution which they themselves can do by themselves; d) those able to restore in full and restoring only a part.

9. But if the penitent certainly is in good faith, either because he believes that he owes nothing, or because he thinks that he is bound only to a part, not to the whole or in solidum, or because he judges it enough that he restore by several payments, although he could do so by one, if there is no probable hope of fruit to follow from warning, which nevertheless is not easily to be presumed, let the confessor leave him in ignorance; but if the penitent doubts or asks, the confessor cannot be silent.

10. In certain cases he will reasonably be able practically to presume total and absolute condonation, namely as regards children of a family and spouses who have snatched away things not of great value and have now consumed them; likewise for thefts of servants as regards edible and drinkable things, at least ordinary ones, not sold to others but consumed; indeed as regards other things if the master has rebuked or expelled the servant convicted of theft and has said nothing about restitution; likewise concerning small thefts of the poor committed against diverse persons, or against one person but not very frequently.

11. Ordinarily let him not absolve one who holds another's thing with himself unless he first has restored it, namely on account of the danger in which otherwise he lives of delaying restitution, or of consuming the thing and converting it to his own use. But if someone already seems so constituted and firmly disposed that he is deservedly believed soon to satisfy, he will be able to be absolved, but by fixing for him the space of time within which he is to restore and the manner in which he is to accomplish this; for indeterminate promises easily perish.

But one who, previously warned, did not restore, regularly is altogether to be dismissed for a time, absolution being delayed until he has restored, because although he may say that he proposes restitution, nevertheless there will easily be doubt concerning this disposition, and too much danger of relapsing and of changing the purpose.

III. There are various practical modes or means by which restitution can be made more opportunely, namely:

1. Through the public or postal course, so that, whether by means of an inscribed letter or by means of an order or check (mandat, cheque), he sends the sum under a fictitious name. But if the sum is owed to some society, it is better, for sufficient security, to write at the same time to the treasurer and to the president or syndicate.

2. By testament, if the dying person without any infamy can leave a legacy to such and such a person. And if it cannot be done without infamy, it must be seen whether an heir or fiduciary legatee can be constituted.

3. By a fictitious donation, provided that gifts are not compensated by gifts, and that they bring true profit or utility to the creditor, so that he is truly rendered unharmed: for it would not suffice, for example, that he be invited to drink or eat superfluously, or that sweets be given to him.

4. By undue labors useful to the creditor, for example by setting vines for a farmer, making a trip with a wagon for a master, whitening either linens or other things for him, laboring beyond what is owed with the master's profit and without pay. This manner is often practical for servants or workers. Nevertheless let mere favors without true utility not be confused with labor.

5. By alms, whether given to the poor or to priests who will celebrate Masses; nevertheless this is valid only for cases in which either it is impossible to restore into the hands of the creditor, or he must be presumed content with this manner of restoring. Nevertheless let the confessor beware lest he ask alms of this kind for himself or for his own convent. But if the sum is not very great and the debtor is of slender fortune, for restitution he will be able to give alms even of the kind he is otherwise accustomed to give; thus likewise he can remit to some poor debtor of his as much as he is bound to give to the poor: namely it is easier to yield that which one does not yet have than to deprive oneself of that which he now holds.

6. Through a trustworthy third person. It is not opportune that the confessor spontaneously offer himself for exercising this office of mediator; indeed, when asked by the penitent, let him not easily undertake the burden, and let him attend lest the seal be violated. To avoid this, sometimes he will be able to make restitution through another priest, or transmit it from another place. Indeterminate restitutions, for example those to be performed for the poor, he should ordinarily leave to be made by the penitent; restitutions to be made to a determined person he will easily be able to undertake in a case of necessity lest the reputation of the penitent be injured, but let him require the testimony of the creditor concerning the thing or sum restored, which he may transmit to the penitent.

Thus let the confessor himself not incur suspicion.

Especially A. If the injured person is not certainly known, inquiry is to be made diligently concerning him. But doubt remaining after diligent inquiry:

1. if the doubt is among a few, the thing or its price is to be divided among them, nor can it be given to the poor; thus, for example, money lost or taken from one of three or four persons;

2. if the doubt is among several of the same place, restitution is to be made to them, if morally it can be done: thus merchants defrauding in weight, measure, or quality of goods ought to restore by increasing weight and measure, if the same buyers are accustomed to return; otherwise, if it cannot be done in another way, let restitution be made to the poor or to pious works of the same place in which the injustice was committed; thus in war, if unjust requisitions have been made and it is unknown who suffered damage;

3. if the doubt is among many scattered persons or among altogether unknown persons, so that there is no probability that restitution can be made to the true owners, restitution is to be made to the poor or to any pious causes.

B. If the injured person has died, restitution is to be made to heirs or to those having care, nor can the goods be expended for the poor or in Masses for the deceased² (who otherwise is no longer the owner of the goods), unless the heirs consent or there are absolutely none.

² Thus the Sacred Penitentiary, 7 Feb. 1899.

C. If a community or society has been injured, restitution is to be made to this society itself, unless it is essentially evil and pursues only an altogether evil end, so that it cannot have the right of possessing. Excepting this case, therefore, restitution cannot be made to the individual members but to the administrators of the society. Nevertheless it is better to warn several of the administrators or members, lest restitution be defrauded by an unfaithful administrator. This also holds concerning an insurance society, although on account of a contract of reinsurance entered among several societies, it is impossible to know which society in fact suffered damage. In this last case certain theologians have said that restitution is to be made to the poor or to pious causes. But as Vermeersch notes,³ this is not the practice of the Sacred Penitentiary; hence Genicot says:⁴ "Practically it seems to suffice that restitution be made to the administrators when the injured person cannot be better detected, and if this is regularly done, a certain compensation among the various societies exists." Therefore restitution is by no means to be made to the poor, unless it cannot be done otherwise; nevertheless one who in good faith in this case has already restored to the poor would not seem to be disturbed.

³ Th. M., II, n. 494.

⁴ Th. M., I, n. 658, VII.

D. If restitution must be made to the State or municipality, restitution can be made through official administrators or those set over taxes, provided that sufficient care is taken lest they keep it for themselves, for example by warning several. It can also be done by destroying titles of public debt issued by the State or municipality, or postal stamps, provided that they belong to the government; but not by destroying banknotes, because they are only protected by the State. Nor can it be made to those who have been unjustly injured in goods by the civil power, as sometimes religious or Catholic schools are, unless the injustice committed against determinate persons is altogether indubitable and has not been repaired or condoned; nor can restitution be made to the poor under the pretext that civil society ought to assist them, because it satisfies that obligation in another way, nor does it belong to private persons to dispose of public goods by private authority; unless nevertheless no other way lies open by which restitution could securely come to the public treasury.

IV. Corollary. - Therefore confessors err:

1. who never or almost never ask concerning the sin of injustice;

2. who generally say nothing concerning restitution but pass over it in silence;

3. who from those unable to restore do not require a firm and efficacious purpose of restoring, nor impose on them the obligation of seriously striving and employing apt means so that they may restore as soon as possible;

4. who, after hearing the declaration of a sin or of adjuncts which can induce the obligation of restoring, from negligence do not examine whether it must be made;

5. who do not warn concerning restitution to be made, even when the obligation is certain and there is no serious reason for doubting the capacity or probity of the penitent;

6. who too easily and without grave reason either suppose good faith in the penitent, or fear that the warning will not be useful;

7. who too easily either presume condonation, or admit an excusing reason of delay or impossibility, or even exempt from the obligation of restitution;

8. who think that in light matter no obligation of restitution is given, when on the contrary it is owed under venial sin, and must in some measure be urged, if otherwise there would be danger that the penitent would fall into grave injustice or would multiply light matters greatly;

9. who do not care about light matters added to one another and coalescing into one grave matter, although nevertheless they can induce grave fault and a grave obligation of restoring, not only by reason of intention, but also by reason of grave damage inflicted on one person, and by reason of notable detention or accumulation even from things belonging to several;

10. who, when the injured person is unknown, do not care to inquire concerning him or to institute inquiry, and at once pronounce that restitution is to be made to the poor;

11. who, when restitution must be made to a deceased person, or to a society, do not take care that restitution be made to heirs or to administrators, but are content with restitution made to the poor or in alms for Masses, although another way of restoring is by no means impossible.

In the case in which from vincible or invincible error the confessor either negatively did not warn concerning the obligation of restoring, or positively pronounced that an owed obligation was not to be done or that an undue one was to be done, he is bound to correct the error in that degree and manner which we stated in the little work Concerning the Minister of Penance.

V. Case concerning restitution to be made in the article of death. - One must act cautiously with the dying person:

1. If the penitent seems to be in good faith, and time is not left prudently to warn him concerning his obligation, or it is foreseen that the warning will not be useful, it is to be omitted.

2. But if the warning is hoped to be useful, or if the penitent lives in bad faith or in vincible ignorance, he is to be warned strongly and at the same time gently concerning his obligation and helped to fulfill it immediately.

3. If the obligation is occult and cannot be fulfilled immediately, the dying person is to be induced to entrust the money to the confessor himself, or rather to another faithful man, so that it may be handed over to the creditor in secret; or, if it can prudently be done, to leave that sum in his testament to the same creditor, with mention of restitution omitted.

4. If the obligation is not occult, nor can it be fulfilled immediately, let the confessor effect that it is certainly fulfilled either through the heirs or through a note to be handed over to the creditor.

VI. Observations. - 1. To a penitent asking concerning grave matter, before the fact of injustice inflicted, one must respond more rigorously so that he may be efficaciously turned away from it, saying, for example, that it is imprudent to expose oneself to acts which perhaps contain grave injustice; but after the fact of injustice committed, the obligation of restoring under grave sin is not to be imposed unless it is certain.

2. But if the penitent in this matter does not easily acquiesce in the opinion of the confessor, it will be opportune to address him in this manner: would you not have such damage as grave; would you not judge such a lesion very harmful; would you too not be gravely unwilling that the same be done to you?

3. In contracts, in which there are many varieties and nevertheless innumerable frauds occur, sometimes a certain grave obligation of restoring is more difficultly established. For judging this the custom or intention of those contracting is very useful; hence, unless there is a special and grave reason for doubting, the confessor will not deviate much from the right if he chiefly attends to that which among truly honest men is accustomed to be done in such a case.

But so that he may discern in practice whether a grave obligation of restitution arises, let him attend to three things: a) whether the damaging is truly, formally, and efficaciously unjust, and this in grave matter; b) whether the thing handed over or the action performed is at least morally the same as what the other contracting party thought; c) what is the custom prevailing in such a region. Nevertheless let not an iniquitous manner of acting by certain merchants be called a received custom.