Article First. To Whom Restitution Must Be Made

In order that the proposed question may be answered suitably, a threefold case must be distinguished: a. the owner is certain and known; b. the owner is plainly unknown or, though known, cannot be reached; c. the owner is uncertain. The owner is said to be uncertain when among several it is doubtful whether this one or that one is owner.

502. 1. If the owner is certain and known, restitution of itself must be made to the owner himself or to the just possessor from whom the thing was taken away, whenever this can be done without injury to another and without great difficulty for the debtor, because on the one hand the thing cries out for its owner, and on the other the affirmative law does not urge with proportionately grave inconvenience.

a. Therefore if damage has been inflicted on the republic or community, restitution must be made to the republic or the community itself, if this can be done without great difficulty. Yet in this case, more easily than if there were question of restitution to be made to private persons, it can be conceded that restitution be made to the poor, whose care rests upon the republic or community.¹

b. If damage has been inflicted on a community whose goods serve for pursuing an evil end, one must distinguish: if the community itself has no right of existing nor of possessing legitimately in the forum of conscience, because its end is evil, as the sect of Freemasons or a society of socialists, restitution is not to be made to the community, but to its members; but if the community itself has the right of existing and therefore the right of possessing, as a religious sect, restitution must be made to it, even if certain goods are applied to an evil use: for the evil use of goods does not prevent the sect itself from retaining ownership in these goods.² But even in this case a reason can more easily be admitted for restitution to be made to the poor, for example, because the damage inflicted on each person is slight, because there is great difficulty of restoring to each person.

c. If a thing has been taken away which had been deposited, leased, or lent with another, it must be restored not to the owner but to the possessor, otherwise an injury is done to the possessor holding the thing by a just title, unless either he himself consents to restitution being made to the owner, or it is rightly and deservedly feared that he will consume the thing with detriment to the owner. Hence he who takes away linens from a washerman must return the linens taken away not to the owner but to the washerman, because otherwise this one would suffer grave damage.

d. He who culpably burns an insured house of itself must restore to the insurance society only as much as it pays to the owner, and in addition to the owner that part of the damage which the society does not repair. Yet sometimes restitution can be made to the poor, as will be said below.

e. Although restitution of itself must be made to the owner, not to his creditor, nevertheless restitution made to the creditor is valid, because indirectly restitution is made to the owner himself; and if there is a reasonable cause of restoring to the creditor, the owner is considered to consent to this mode of restitution. But if there is no cause of restoring to the creditor of the owner, the restitution in the external forum is invalid, when the law so establishes; but in the internal forum it is valid, because in this way equality between debtor and creditor has been restored.

f. Although restitution of itself must be made to the owner, not to his creditors, yet if the owner was forced to make cession of goods, restitution or payment of debts must be made not to the owner but to the administrator of goods constituted by public authority: for the creditors of the owner have a right that from his goods they be preserved unharmed. Yet if the owner is found in grave necessity, restitution can be made to him, because in grave necessity he can subtract from his goods those things which are necessary for sustaining the life of himself and his family.

g. When the owner has died, restitution must be made to his heirs, and only if these are lacking can it be made to the poor: for all the rights of the deceased pass to his heirs. Nor is it permitted to expend the thing to be restored for the repose of the soul of the deceased owner, unless from the reasonably presumed will not of the deceased but of the heirs, because the deceased now has no ownership.³

h. If the deceased owner had several heirs, whether necessary or by testament, the thing to be restored must be divided among them with the proportion of the inheritance preserved. The same must be said if the owner distributed all his goods among several legatees, namely the thing to be restored must be divided among the legatees with the proportion of the legacies preserved, unless another disposition which the owner would have made about this matter is certainly established.

2. He who restores to the poor or to pious causes, as long as the owner or his heirs are known and can be reached, does not satisfy his obligation and must restore again, because restitution must altogether be made to the owner himself. Yet sometimes prudence will advise the confessor to pass over this obligation in silence.

In order that a debtor may be excused from making restitution to the owner himself, so that in place of him restitution may be made to the poor, it is required that the damage of the debtor exceed by more than double the value of the debt or the damage of the injured owner.⁴

¹ Cf. Lehmkuhl I, n. 1020.

² Holy Office, Sept. 21, 1842.

³ Sacred Penitentiary, Feb. 7, 1899.

⁴ Cf. St. Alphonsus, n. 598.

503. If the owner is unknown, or indeed known but cannot be reached, one must distinguish thus:

1. If the possessor of another's thing is in good faith, he can retain it for himself; for the thing is held as abandoned, and therefore by right of occupation it passes into the ownership of the possessor.

The contrary opinion of St. Thomas,¹ according to which restitution must be made to the poor or to pious causes even by him who possesses another's thing in good faith, can indeed be advised in practice, but cannot be imposed by a strict obligation, especially since even St. Alphonsus (n. 589) holds the opinion of St. Thomas only as probable.

2. If the possessor of another's thing is in bad faith, he must expend it for the poor; and in like manner an unjust damager who does not receive profit from the damaging is bound to restore to the poor or to pious causes if the owner to whom he inflicted damage is altogether unknown.

a. He must expend the thing. Although all authors agree in establishing the obligation of returning another's thing and of repairing damage inflicted in this case, yet some derive the obligation both from natural law (because of the common good) and from positive law, while others derive it from positive law alone, whose foundation is the reason of the common good.²

b. But he must expend it for the poor or pious causes, both because in this way the common good is procured, and because this is rightly presumed to be the will of the owner, that his goods be expended in such a way that they redound to his own utility.

c. Yet since this obligation, as one that seems to have arisen from positive law, is generally unknown to the faithful, who moreover, if warned about it, obey with difficulty, the confessor will prudently abstain from making a warning if he foresees that it will be harmful.

3. If he who must restore to an unknown or uncertain owner is himself truly poor, according to the opinion of several authors he can retain the thing or part of it for himself as alms: for as poor he must not be of worse condition than other poor persons, even if he possesses the thing in bad faith.³

From these things it is now clear what must be established concerning uncertain goods and in like manner concerning uncertain debts. Uncertain goods are those which are certainly another's, but whose owner is plainly unknown or cannot be reached. Uncertain debts are debts certainly owed, when however the owner to whom they are owed is plainly unknown or cannot be reached. Namely, not only uncertain goods must be restored by a possessor in bad faith, but uncertain debts too must be paid to the poor or to pious causes.⁴

¹ Summa II-II, q. 62, a. 5, ad 2.

² C. Quum tu 5, De usuris (V. 19). C. Quum sit 16, De iudaeis, sarracenis, etc. (V. 6). These laws, which immediately refer only to usurious price and to profit from an office illegitimately undertaken, are extended by universal custom to all debts from offense. Cf. Laymann, De restit., c. 9, n. 2; Lessius, l. 2, c. 14, n. 33 ss.

³ Cf. Lessius, l. 2, c. 14, n. 41; Lugo, disp. 6, n. 148.

⁴ Cf. Sporer-Bierbaum II, tract. 4, n. 386 ss.

504. If the owner is uncertain, but the thing is certainly another's, first of all the true owner must be investigated; but if, after diligent investigation has been instituted, the doubt perseveres, restitution, as far as is permitted from the circumstances, must be made to the probable owner himself; but if it cannot be made to the owner, it must be made according to the presumed will of the owner. From these things, for three diverse sets of circumstances, these things can be established.

1. If the true owner is found among a few (three or four), about whom it is doubtful who is the true owner of the thing, the thing or its price must be divided among them, or, if this can be done, they are to be induced to make a composition.

2. If the true owner, or a few true owners, are found among the inhabitants of a place, among whom they cannot be discerned, restitution does not necessarily have to be made to the inhabitants of the place, but can be made to the poor, and indeed of any place whatever.

3. If the true owners are many and cannot be discerned among the inhabitants of a place, restitution must be made to the inhabitants of the place, so that restitution, as far as can be done, may be made to those very persons who suffered the damage. Yet if the damage inflicted on each was light, restitution can more easily be made to the poor, but of the same place.

If a merchant inflicted damage on several buyers by adulterating goods or by diminishing weights or measures, he must restore by increasing weight or measure or by diminishing price, if the ordinary buyers are the same as those who suffered the damage; but if the buyers now are others and restitution cannot be made to those damaged, restitution must be made to the poor of the place.