Article I: On Him to Whom Restitution Must Be Made

S. Th. II-II, q. 62, a. 5.

320. General principle. - Restitution per se is to be made to him whose strict right was injured, and, he being deceased or having disappeared, to his heirs or to those having charge. For by restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things; but this cannot be had unless what is lacking is supplied to him who has less than his own. For this it is necessary that restitution be made to him from whom it was received (q. 62, a. 5).

Whence if restitution has been made to another than the injured person, the obligation of restoring remains, unless the thing was without fault in the possession of the one restoring and has passed over.

321. If the injured person is certainly known, generally restitution is to be made to him himself, namely, to him who was legitimately possessing the thing and who here and now has the right of possessing it: thus as often as it can be done without great inconvenience. For the thing cries out for its owner; that is, not for him who has the bare dominion of property, but for him who here and now legitimately exercises dominion, or for the legitimate possessor (a. 1239). Whence if a thing has been taken away from a depositary, lessee, or curator, it is to be restored to him to whom injury has been done, but not to the proprietor. Yet there are exceptions:

1. If a grave reason is present, restitution can be made to another: thus a thing can be returned to the owner, whenever he could recover it from the possessor only with difficulty or trouble, or if the possessor himself wished to use it for harming; and if it has been stolen from a son of a family, it can be returned to the parents lest it be squandered by the son.

2. If the thing has been received from a son of a family, a pupil, a madman, a religious, from those goods whose administration does not belong to them, it will for the most part have to be restored to the father, tutor, curator, prelate, etc. (a. 1241).

3. If the injured person has died, restitution is to be made to the heirs or those having charge; nor can the goods be distributed to the poor or for Masses for the deceased,¹ unless the heirs consent or there are none at all.

¹ S. Poenit., 7 Feb. 1899.

4. If the owner has made a cession of all goods to creditors, restitution must be made not to him himself but to the administrator of the goods, as civil law also prescribes; unless for those goods which are necessary to the owner for sustenance if he is in grave necessity.

5. If a community or society has been injured, restitution is to be made to its administrators, not to individual members, even if the society pursues some accidental evil ends or expends goods for evil uses, because the society as such has suffered the damage. Unless, however, it is essentially evil and pursues only an entirely wicked end, as a Masonic sect or idolatrous community: then restitution will have to be made not to the society itself, which cannot have the right of possessing, but to the individual members,² or, if this cannot be done, to the poor.

² S. C. de P. F., 10 Feb. 1795 and S. Off., 21 Sept. 1842, ad 4.

6. If damage has been inflicted on an insurance society, restitution will have to be made to it, whether it belongs to the treasury, or is a private society, even if because of a pact of reinsurance for greater damages it is impossible to know what society in fact suffered the damage. In this last case several theologians say 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. Whence Genicot: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 exists among the various societies." Nevertheless, he does not seem to be disquieted who in good faith has already restored to the poor.

³ Th. M. II, n. 494.

⁴ Th. M. I, n. 658, VII. It is better nevertheless to warn several of the administrators or even associates, lest the restitution made be defrauded by an unfaithful administrator.

322. If the injured person is doubtfully known or uncertain, first of all inquiry must be made with diligence proportioned to the value of the thing. But if the doubt remains:

1. If it is among a few, the thing or its price is to be divided among them in the better way by which it can be done, nor can it be given to the poor: thus, for example, money found, lost or taken away from one of four or five persons.

2. If it is among many persons distant from one another or easily changing domicile, as easily happens in great cities, so that there is no probability that it can be restored to the true owners, restitution is to be made to any pious causes.

3. If it is among several of the same place, restitution is to be made to them, if it can be morally done; but otherwise to the poor or to pious works of that place where the injustice was committed. Thus merchants defrauding in weight, measure, or quality of wares must restore by increasing the weight and measure, or by bettering the wares or diminishing the price if the same buyers are accustomed to return; otherwise they should restore to the poor of the same place, according to the presumed consent of the owners.

Nevertheless, although profit has come from fraud, provided that no buyer must be supposed gravely injured, he would sin only lightly who repaid the whole to the poor, especially of the same place; indeed the one restoring is excused even from light sin if he acts thus from a reasonable cause, for example, if without notable danger or damage to himself he cannot render to the clients, or if there are very needy poor to whose relief the injured owners are judged more easily to consent.

323. If the injured person is entirely unknown, even after diligent inquiry has been carried out:

1. If the thing has been received in good faith, it is not to be restored, as was said concerning the possessor of good faith and concerning lost things, unless to the owner if he appears before prescription.

2. If the thing has been received in bad faith or from delict, restitution is to be made to works of mercy or pious causes, that is, to the poor, good works, Masses for the souls of purgatory, etc., because it is repugnant to natural law that someone can be enriched from another's thing through injustice; or also because the damage which through injustice was inflicted not only on the owner but also on human society, is to be repaired as far as possible by restoring to good works for the assistance of society. This by ecclesiastical law has been expressly established for simoniacs and usurers, and by the custom of the law of nations has been universally confirmed, so that a private person cannot do otherwise. Hence:

a) In restitution of debts toward unknown persons, the Pontiffs, as curators of pious causes, for a grave cause grant condonation or reduction.

b) If the unknown owner appears after restitution has been made to the poor, if the one restoring sought the owner with the required diligence, since he was of good faith, probably he is bound to nothing further, unless the thing still existed among the poor, in which case it would have to be repeated and handed over to the owner; if he was not diligent, as a possessor of bad faith he must compensate the damage inflicted on the owner.

c) If the debtor himself is poor, he can keep a proportional part of another's thing if it is necessary for relieving his poverty; as some say concerning one who is so poor and burdened with debts in such a way that it is not foreseen that otherwise he can free himself from debts. But this is not to be extended as a general rule to other cases, because the general reason always holds that no one ought to carry away advantage from his own malice. This is altogether true if the poor person deliberately committed injustices toward unknown persons so that he might become rich from them, or if he now omitted restitution in fraud so that later he could retain it for himself. In practice, however, poor persons are often excused from restitution on account of inability, if they are truly poor; for some allege poverty as a pretext.