Article — Noldin, Summa of Moral Theology
Article Third. How Restitution Must Be Made
509. As to the mode of restoring, nothing else is required except that violated justice be fully repaired, if this can be done without grave inconvenience of the debtor.
a. It is not necessary that the act of restitution be a human act, nor that the owner advert to the restitution, provided he has what is his. Hence restitution can be made by increasing weight and measure, or by freely taking up and increasing labor for the utility of the owner, or by living more sparingly beyond what is owed. In these modes wives, children, and servants can make due restitution to the father of a family.
b. It can be made through a simulated donation; indeed if a debtor unmindful of the debt bestows an equivalent gift on his creditor, he still probably satisfies his obligation. Wherefore in this case the debtor, as St. Alphonsus himself admits, cannot be obligated to further restitution, because the obligation of restoring is doubtful. Yet if the creditor from gratitude gives back another gift, this must be restored to him.1
c. Indeed even alms made by the debtor after contracting the obligation of restoring can be counted as restitution if restitution is to be made to pious causes or to the poor.
1 St. Alphonsus, n. 700.
510. To the question at whose expense restitution must be made, one must distinguish thus:
a. A possessor in good faith is not bound to restore at his own expense, but the owner of the thing must bear those expenses: for since this one inflicted no damage on the owner, he is not bound to render him unharmed, but only to permit him to take his own thing to himself. Therefore it is enough that he warn the owner about his own thing.
b. A debtor from offense must restore at his own expense: for the owner must altogether be preserved unharmed; therefore he must receive his own thing in that place in which he would have it if it had not been taken away. Only if the expenses of transmission would notably exceed the value of the thing (by more than double), he could transmit not the thing itself but the price of the thing; and if even this could not be done, he could restore to the poor: for the creditor cannot reasonably demand that restitution be made to him with such great expenses.1 Yet considering the means of communication which are now had, it can scarcely happen that at least the price of the thing cannot easily be restored.
1 Cf. Lugo, De iustit., disp. 20, n. 186 ss.
511. To the question whether the debtor must restore again if the thing to be restored perishes before it comes to the owner, these things must be noted.
a. A possessor in good faith is bound to nothing: for a thing which perishes without fault perishes for the owner. Yet if in choosing the messenger he committed juridical fault, he can be obligated to restitution by the judge.
b. As to a debtor from offense, one must distinguish: if the owner or the judge designated the messenger, or if the debtor himself with the consent of the creditor chose the messenger who received the thing from the debtor, this one is bound to nothing, even if the thing perishes by chance or by fault of the messenger or of a third person: for the thing, by being handed over to a messenger thus designated, becomes the creditor's, and therefore perishes for him. But if the debtor himself chose the messenger without the consent of the creditor, the obligation of restoring remains.1
alpha. Lugo judges that the opinion denying the obligation of restoring anew, if the debtor himself chose the messenger, is not probable; and St. Alphonsus (n. 705) nearly agrees with him. The principal reasons of Lugo are: alpha. Money handed over to a messenger fully remains the debtor's; therefore it perishes for him, not for the creditor. beta. He who sends through a freely chosen messenger money owed from contract certainly is bound to pay again if the money perishes; therefore also if the money is owed from offense. gamma. A debtor from offense must bear every fortuitous damage which the owner suffers because the thing has been unjustly taken away from him; therefore he must also bear this damage, by whatever fault it perished; but the owner must be restored into that state in which he would be found if the thing had never been taken away from him.
beta. According to these same principles the question must be solved whether the debtor must restore again if he gave the money to be restored to the confessor, with whom it perished by chance or by fault of a third person. Yet there are some who think that the opinion is probable which teaches that the confessor can be considered as a messenger chosen from the presumed consent of the creditor, and therefore that in this case the debtor is freed from the burden of restoring anew. Lessius, Sporer, Tamburini, and most recently Frassinetti and Lehmkuhl defend this opinion. Their reasons are these: since the debtor cannot restore by another way without infamy, by handing the thing to the confessor he does what morally he can and must; but from him who restores insofar as morally he can and must, further restitution must not be demanded. Moreover, since restitution cannot be made by another way, the creditor is considered to consent implicitly to this mode of restitution. Since this opinion, which St. Alphonsus indeed does not judge probable, but does not dare to condemn, appears truly probable, the confessor in practice will be able to follow it, so that he is not bound to oblige the penitent to make restitution again. But even if he judges the stricter opinion to be uniquely true, it will be better to leave in good faith a penitent who thinks that he has already satisfied his obligation and is foreseen scarcely to obey if warned about restitution to be made anew.
1 Cf. St. Alphonsus, n. 705; Ballerini-Palmieri III, n. 501; Lugo, disp. 21, n. 58 ss.
512. On restitution to be made to the fisc or to an insurance society. 1. Restitution which must be made to the fisc can be made in diverse ways: a. by expending the owed sum for the poor: for since the obligation of aiding the poor rests upon political power, its burden is diminished in this way; b. by paying the owed sum to those who have been injured in goods of fortune by the civil power, to whom therefore restitution is owed by the fisc; c. by destroying tickets by which the price for carrying letters is paid (Briefmarken), where these pertain to the government; d. by destroying banknotes (Banknoten), where they pertain to the government; e. by destroying titles of public debt (Staatsobligationen).
- Restitution must be made to the insurance society itself if this is founded in mutual insurance among those insuring and those damaged, so that those insuring must pay less insofar as the damage which the society suffered is less. If restitution must be made to public insurance which pertains to the fisc, attention must be given to those things which have been said concerning the mode of restoring to the fisc. But if the insurance society is private and has not stipulated mutual insurance, the damager, absolutely speaking, satisfies his obligation by restoring to the administrators of the society, even if perhaps compensation is not received by those who suffered the damage: for it cannot be demanded that the damager obtain certitude for himself concerning the injured persons, since this is not only difficult but nearly impossible. But restitution which is owed to an insurance society without mutual insurance can ordinarily also be made to the poor or to pious causes: a. because it is doubtful whether the due compensation reaches the injured persons themselves; b. because often it is doubtful whether grave damage has been inflicted on any person: for frequently the injured persons are possessors of shares, on each of whom perhaps only light damage has been inflicted; c. because reinsurance societies, wherever they have been instituted, bring it about that the damager can in no way come to knowledge of the injured owner.1
1 Cf. Fr. A. Gopfert, Moraltheologie^6 (Paderborn: Schoningh, 1906), II, n. 126.