Question First. On Restitution in General

431. Definition. Restitution is an action by which damage unjustly inflicted on the neighbor is repaired.

a. Therefore from an injury by which either no damage or no unjust damage is inflicted, no obligation of restitution arises; as if a judge gives a sentence which he thought was unjust, although it is just, or if a husband by adultery inflicts an injury on his wife. He who kills a man who was shortly and certainly going to die from an internal disease is not bound to compensate damages to the heirs, because he inflicted no damage.

b. Therefore restitution differs from satisfaction: for the former is compensation of a real injury, by which the thing taken away or destroyed is returned; the latter is compensation of a personal injury, by which the offender, through the deference shown, intends to reconcile to himself the person to whom the injury was inflicted.

¹ I. Vogler, Iuriscultor theologus circa obligationes restitutionis instructus. P. J. Loenartz, Die Restitutionspflicht des Besitzers fremden Gutes (Trier: Paulinus-Druckerei, 1885). A. Vermeersch, Quaestiones de iustitia^2 (Bruges: Beyaert, 1904), n. 155-172. Marres, De iustitia^2 (Ruraemond: Romen, 1889), l. 2. Kutschker, Die Lehre vom Schadenersatze (Olmutz: Neugebauer, 1851).

432. Obligation of restitution. 1. Restitution is necessary for salvation by necessity of precept, both natural and divine, but not by necessity of means except in vow.

a. The natural precept of charity teaches: As you will that men should do to you, so do you also to them likewise;¹ but when we have been injured, we will the reparation of the injury. Moreover the same precept which prohibits taking away another's thing also commands not retaining the thing taken away: for he who retains a thing taken away continues to despoil the owner of his own thing.

b. God expressly enjoins restitution of the thing taken away: If anyone injures a field or vineyard . . . he shall restore according to the estimation of the damage;² moreover he proposes restitution as the condition on which a sinner may obtain pardon for his offenses.³

c. Restitution positively contributes nothing to salvation, but only must be made, if it is possible, lest sin be committed and lest an obstacle to salvation be placed.

d. He who has contracted the obligation of restitution must be so disposed in mind that he wishes to restore when he can; otherwise he would retain affection for the injury inflicted.

Therefore for him who is bound to restitution under grave obligation, at least a serious and efficacious will of repairing the damage inflicted is necessary for salvation. In this sense, namely concerning a serious will, the saying is true: the sin is not remitted unless the thing taken away is restored.⁴ Indeed this is also necessary, that he apply the means which morally he can, so that restitution becomes possible. Therefore debtors who otherwise cannot restore are bound not only to avoid superfluous expenses, but also to diminish daily expenses insofar as they can according to their condition.

¹ Luke 6:31; Matt. 7:12.

² Exod. 22:5.

³ Cf. Ezek. 33:13 ss.; Tob. 2:20 ss.

⁴ St. Augustine, ep. 152, to Macedonius.

433. 2. He who cannot restore from goods of the same order is not bound to restore from goods of a different order, for example, to compensate injured reputation by money; for commutative justice commands restitution only so that the violated equality may be restored; but equality cannot be recalled from goods of a different order, and indeed reputation taken away is not repaired by money.

a. The opposite opinion is held as probable by St. Alphonsus (n. 627); but the words of St. Thomas¹ seem to be understood of counsel, not of precept. And indeed it is fitting that compensation in money be enjoined for damage inflicted in goods of a higher order.

b. A judge or superior by reason of penalty can impose that, because of an injury inflicted in one good, something be paid from goods of another order, for example, money for an inflicted wound; and certainly this sentence must be obeyed.

¹ Summa II-II, q. 62, a. 2, ad 1.

434. On the gravity of the obligation of restoring. 1. The obligation of restitution is of itself grave: for it obliges by the same reason as commutative justice, which requires that to each one be rendered what is his. Therefore in grave matter restitution must be made of itself under grave obligation, and in light matter under light obligation.

2. In particular, for determining the obligation of restitution, especially where there is question of damage inflicted on another, attention must be given not only to the quantity of the damage, but also to the quantity of the fault with which the damage was inflicted.

a. He who inflicted grave damage with grave fault is bound to repair the damage under grave obligation.

b. He who inflicted grave damage with light fault, which was a perfectly human act, is bound to restitution under light obligation; for from light fault a grave obligation cannot arise, because the obligation of repairing an injury cannot be greater than the injury from which it arises.

Therefore he who restores a thing taken away not wholly but only in part does not sin gravely if the part which he retains does not reach grave matter.

alpha. The principle must be held altogether, that the obligation of restitution and its gravity arise from the formal injury by which the damage was inflicted, and from its gravity. Therefore grave damage inflicted with light fault, which was a perfect act, must not be repaired under grave obligation, unless the damager either retains another's thing or has become richer from it. Thus he who steals thirty florins from a prince while invincibly thinking that this matter is not grave is bound only under light obligation to return them, if he consumed them and did not become richer from them.

beta. He who by several acts of damaging committed either against the same person or against various persons inflicted grave damage, to the gravity of which he never adverted, is bound to repair the damage inflicted only under light obligation. Not under grave obligation, both because the damage was inflicted without grave fault, and because grave matter is not retained which would have to be returned under grave obligation.

gamma. Yet he who by several small thefts committed either against the same person or against various persons sinned only venially, because he never adverted to the coalescing grave matter, is bound under grave obligation to restitution as soon as he adverts to the gravity of the matter taken away, because it is gravely illicit to retain another's thing in grave matter or to grow rich unjustly from another's thing.

b. There are authors who exempt from the obligation of restitution him who inflicted grave damage with light fault, so that this opinion can be called externally probable; yet it is plainly destitute of internal probability, since their arguments are nothing.

435. c. He who inflicted grave damage with fault light from imperfection of the act, according to the opinion to be followed practically, is bound to nothing; and by like reason, he who inflicted light damage with fault light from imperfection of the act, contracts no obligation of restoring.

alpha. Authors do not agree in this question: for some teach that a damager of this sort must repair the damage under grave obligation: for, once theological fault is supposed, the quantity of the obligation of restoring depends on the quantity of the matter, because the law of nature, such as the obligation of restoring is, obliges under grave obligation in grave matter. But truly the quantity of the obligation of restoring does not depend simply on the quantity of the damage, but also on theological fault sufficient of itself for inducing the obligation; but fault light from imperfection of the act is not sufficient for inducing the obligation, which the third opinion proves.

beta. Others teach that he must repair, under light obligation, either the whole damage or a part proportioned to the quantity of the fault: for the obligation of repairing damage cannot be greater than the fault with which the damage was inflicted.¹ This opinion is true insofar as it denies a grave obligation of restoring, but it does not demonstrate that the obligation is light.

gamma. Finally the third opinion teaches that the obligation of restoring is none: for a true obligation arises only from an act perfectly human, that is, one exercised with full advertence and full consent; but from an act imperfectly human, that is, one placed with half-full advertence and half-full consent, no obligation arises. Therefore a vow or oath made with half-full deliberation is void; likewise a contract entered with half-full deliberation is invalid. And because the patrons of the prior opinions do not deny at least the probability of this opinion, it must be followed in practice.²

d. He who inflicted light damage with fault light (from smallness of matter), or with fault grave (from error), is bound to repair the damage under light obligation, both because the obligation of restoring in light matter urges under light obligation, and because light matter is not capable of a grave obligation.

Therefore there exists an obligation of repairing even small damages; yet since this obligation is not grave, it cannot be urged under penalty of denial of absolution; indeed frequently prudence will advise that it be entirely passed over in silence.

¹ Laymann, l. 3, tr. 3, pr. 1, 6, n. 4.

² Lugo, disp. 8, n. 57 ss.; St. Alphonsus, n. 552.

436. Roots of restitution. The root of restitution is called the cause from which the obligation of restoring arises. A twofold root of restitution is distinguished: general and remote, which consists in the violation of commutative justice; special and proximate, which consists in the diverse modes by which commutative justice is injured. And because this can be injured in three different ways, a threefold root of restitution is usually distinguished: a. possession of another's thing, whether materially or formally unjust; b. unjust damaging; c. unjust cooperation in damage inflicted on the neighbor by another, whether through theft or through unjust damaging.

a. The roots of restitution are properly reduced to two: to unjust possession of another's thing, whether the thing was received in good faith or unjustly usurped, and to unjust damaging, by which someone inflicts damage on another and himself profits nothing from it. Unjust cooperation is recalled to one or the other of these; yet for greater clarity of matters it is treated separately.

b. St. Thomas sets forth two roots of restitution thus, saying that the obligation of restitution arises from a thing accepted, when someone possesses another's thing without formal injustice, and from unjust taking, when someone unjustly deprived another of his own thing, whether by taking it to himself or by destroying it.¹

Question Second. On Restitution Because of Possession of Another's Thing

He who possesses another's thing can hold it in good faith, bad faith, or doubtful faith. Now the obligations of the possessor of another's thing are different according as he holds it in good faith, bad faith, or doubtful faith.

¹ Summa II-II, q. 62, a. 6.