Section A: Concerning the Proper Act of Commutative Justice or Concerning Restitution

S. Th. II-II, q. 62, a. 1.

278. What restitution is. — To restore, according to etymology, is as it were to set up again, and therefore it is the replacement of a person or thing into its former state. At present the question is only of the restitution of a thing. In a broader and improper sense, to restore is to render whatever is owed to another from commutative justice, to pay whatever debt must be paid from commutative justice, for example, from a contract, because the thing owed to another is already considered to be his; in the proper and strict sense, it is to set someone again in the possession or dominion of his own thing, and thus it especially has place in exterior things which, remaining the same, can pass from one person to another. But since certain things taken away now cannot be rendered and possessed again by someone, such as life, an eye torn out, a member cut off, restitution, in a derived sense, also includes recompensation for damage of this kind inflicted: namely, the name has been extended to actions and passions "which pertain to the reverence or injury of some person, or to harm or advancement" (a. 1, ad 2), and which do not remain really but only in an effect, either bodily, as an injury of the body, or intentional in the knowledge of men, as defamation and diminution of honor.

Restitution, understood in the proper sense, can be defined: an act of commutative justice by which, according to equality of thing to thing, there is rendered to another what has been received from him, whether willingly or unwillingly. It is said:

1. an act of commutative justice, because from the violation of another virtue as such (charity, religion, obedience, even legal and distributive justice) there does not arise an obligation of restoring, except per accidens, if commutative justice is at the same time violated, whose office is to preserve equality with the strict right of another;

2. by which there is rendered to another: restitution must be made to another by him who holds or has injured, and thus it differs from recovery or recompensation which someone makes for himself, although this is equivalent to restitution and takes away its obligation;

3. according to equality of thing to thing, for if as much is not rendered as was taken away, the damage is not repaired and equality is not restored;

4. that which was received from him whether willingly or unwillingly, that is, the thing to which another has a right that it be rendered either in itself, or at least in an equivalent; and thus restitution is distinguished from satisfaction, which regards not the thing but the person, and from the payment of a debt, by which a diverse thing is granted. But it happens, according to St. Thomas, in two ways: "when the thing of one is had by another either through his will, as in a loan (or commodatum) or deposit; or against his will, as in robbery or theft" (a. 1). Hence the obligation of restitution arises by a twofold title:

a) from another's thing received, or from the mere possession of it, even not unjust;

b) from an unjust taking by which a thing is withdrawn from another, even if it is useless to the one receiving; or from unjust damaging. But the damage must be unjust, because if damage is inflicted justly, for example, by public authority, or by necessary defense, or by the use of one's own right, there is no obligation of restitution.

Hence restitution can also be defined: an act by which another's thing is rendered or damage unjustly inflicted is repaired.

Therefore injustice is not the root of restitution, but inequality on the part of the thing. For the obligation of restoring can be present without injustice committed; on the contrary, when injustice has been given, it does not arise if that injustice is not damaging.

279. Restitution is the proper act of commutative justice. — For:

1. "Restitution is opposed to taking away. But the taking away of another's thing is an act of injustice concerning commutations. Therefore restitution of the same is an act of justice, which is directive in commutations" (St. Thomas, a. 1);

2. "To restore seems to be nothing other than to set someone again in the possession or dominion of his own thing; and thus in restitution the equality of justice is attended to according to recompensation of thing to thing, which pertains to commutative justice" (ibid.);

3. "To commutative justice," says Billuart,¹ "it pertains to establish equality of thing to thing, between what is given and what is received, between damage and compensation. But this is done through restitution. Therefore it is an act of commutative justice."

¹ Diss. VIII, art. 1.

And indeed this justice has as its proper object the good of equality of thing to thing, so that each person has those things which are his by strict right, and no one remains without his own thing and its fruits. But this good intended from justice obligates in the same way after the receiving of the thing as before. Therefore, just as commutative justice prohibits another's thing from being snatched away lest he lack his own thing, so in the same way it prohibits that a thing already snatched away be retained, or that a thing destroyed not be repaired, on account of the same motive, lest the other lack his own thing and its fruits; otherwise the good of equality would not be had, but an inequality by which someone would lack his own thing.

In the other virtues it is not so: namely, after the violation of the virtue has been completed, the motive which that virtue regarded no longer per se remains; for example, if charity is injured insofar as help is not given to a poor man in necessity, after the injury has been completed that necessity of the poor man no longer remains, and consequently neither does the obligation of charity. Per accidens the obligation can remain insofar as the necessity endures; nevertheless charity then does not obligate by reason of damage inflicted, but by reason of a new present necessity; but if the necessity has ceased, there is no longer any obligation, because the motive which charity regards in the case has ceased: the relief of the poor man. Similarly one must speak of obedience and legal justice, and of distributive justice: if a superior commands that you obey a master, or if he himself ought now justly to distribute such goods of the community, there is sin if it is not done, yet there is not an obligation of placing afterward a similar work (unless per accidens the precept perseveres), because now the precept given cannot be fulfilled or the completed distribution of such goods be made just (n. 254), and therefore the same motive of virtue does not remain.

Therefore, when all other virtues have been violated, the obligation of restoring equality does not press, because no complete and permanent strict right of another was injured concerning the thing itself; and therefore only of commutative justice does the axiom of St. Augustine hold: The sin is not remitted unless what was taken away is restored.

280. Restitution differs: A. from payment:

1. because this is not always an act of justice strictly so called; for example, we also pay the things which we owe from a vow or from charity; but restitution supposes a true right, and indeed a strict one;

2. because the thing which is paid must a) be diverse from the thing for which it is paid; b) not yet have been possessed by him to whom it is paid; on the contrary restitution demands a) that the same thing, as far as can be done, be restored; b) that, as much as is from itself, it already was in the possession of him to whom it is restored. Hence one who returns a deposit truly restores, he does not pay; one who gives money for a thing bought, pays, he does not restore;

3. payment does not consider so much the value of the thing as the agreement entered upon; restitution attends to the value of the thing to which it ought to be equivalent. Hence it happens that one person pays more than another for a thing of equal value, which cannot happen for just restitution.

1. because this is sometimes taken in a more general sense for the fulfillment of every obligation even without a debt of justice, or not from strict justice;

2. because satisfaction strictly taken regards the person to whom satisfaction is made, although it does not furnish an equivalent to the debt; but restitution regards the thing which must be rendered, the same thing or, if this is impossible, at least an equivalent;

3. because satisfaction is the repair of injured honor even without damage or with irreparable damage; but restitution is the repair of repairable damage inflicted. Hence there can be satisfaction without restitution, for example, when we make satisfaction to God for sins or ask pardon from offended parents; likewise there can be restitution without satisfaction, as in the restitution of a deposit or loan; both can also be together, as when we render a thing injuriously taken away and at the same time humbly ask pardon.

281. Matter to be treated. — In what follows we shall speak:

1. of the necessity of restitution;

2. of the roots of restitution, namely, a) of unjust taking, b) of detention of a thing received, c) of unjust taking together with detention of the thing, d) of unjust cooperation;

3. of the circumstances of restitution: a) concerning him to whom restitution is to be made, b) concerning the order of those to whom restitution is to be made, c) concerning the manner in which restitution is to be made, d) concerning the place where restitution is to be made, e) concerning the time when restitution is to be made;

4. of causes excusing from restitution, whether a) for a time, or b) forever.