Article — Prümmer, Manuale Theologiae Moralis
Article I. On The Obligation Of Restitution In General
1
1 Fr. J. Loenarts discusses this matter at great length in Die Restitutionspflicht des Besitzes fremden Gutes (Trier, 1885).
202. Notion. "To restore seems to be nothing other than to place someone again in the possession or dominion of his own thing."2 But since certain things taken away can no longer be restored individually or specifically to the legitimate owner, e.g., an eye torn out, a member cut off, restitution hence includes also compensation for damage inflicted, and can be defined: the return of a thing received or the restoration of damage inflicted. According to St. Thomas,3 restitution does not always suppose an unjust taking away of a thing, but can also have place in a contract of loan and deposit; modern theologians, however, are accustomed to take restitution in a stricter sense, namely, for the reparation of damage inflicted.
Restitution differs both from satisfaction and from payment of a debt.
It differs from satisfaction, since satisfaction properly regards the person to whom satisfaction is made; but restitution regards the thing which must be returned, either the same or an equivalent. Then satisfaction regards an injury inflicted or wounded honor, although no other damage was caused; but restitution principally regards material damage inflicted. Hence there can be satisfaction without restitution, e.g., when we make satisfaction to God for sins, or ask pardon from offended parents. Likewise there can be restitution without satisfaction, as in returning a deposit or loan. Both can also be together, as when we return a thing injuriously taken away and at the same time humbly ask pardon.
But payment of a debt requires that the thing which is paid be diverse from the thing for which it is paid, and that it was not yet in the possession of him to whom it is paid. Hence, e.g., he who returns a deposit truly restores, but does not pay; on the contrary, he who gives money for wheat purchased properly pays, but does not restore.4
2 S. theol. 2, 2, q. 62, a. 1. If that thing was some personal right, there is the so-called restitutio in integrum, concerning which jurists speak; but if it was another thing, there is simple restitution.
3 Ibid.
4 Cf. Billuart, De iure et iust. diss. 8, a. 1.
203. Principle. Restitution is the proper act of commutative justice, or in other words: the obligation of restitution arises only from a violation of commutative justice, but not of distributive or legal justice.5
The reason is that it belongs to commutative justice alone to establish strict equality of thing to thing (between what was given and what was received, between damage and compensation). But in distributive and legal justice there is only an equality of proportion.6 Restitution, however, establishes strict equality of thing to thing. Therefore it is the proper act of commutative justice. Distributive or even legal justice is often joined with commutative justice, and then certainly per accidens their violation also induces an obligation of restitution; e.g., a superior distributes taxes unjustly, so that on account of unjust favor toward one person another is held to pay more and suffers real damage.7 - It must be noted that not every violation of commutative justice induces a strict obligation of restitution; e.g., a husband committing adultery violates commutative justice toward his wife, but nevertheless he is not held to restitution unless damage compensable by money has also arisen from the adultery.
5 Thus the most common opinion, to which Cajetan, Molina, and Vasquez are said to contradict (in Vermeersch, Quaest. de iust. n. 156); Cajetan, however, is cited undeservedly. For although in his commentary on 2, 2, q. 63, a. 2 he teaches that an unjust distributor of ecclesiastical benefices is sometimes held to restitution toward him who had a right to the benefice, he constantly asserts that restitution is an act of commutative justice. But all theologians teach with St. Thomas (S. theol. 2, 2, q. 62, a. 1 ad 3) that an unjust distributor is sometimes held to restitution, yet not on account of distributive justice alone having been violated, but on account of the conjoined commutative justice having been violated.
6 S. theol. 2, 2, q. 61, a. 2.
7 Cf. Billuart, l.c.
204. Authors dispute greatly whether restitution, or at least some material compensation, must sometimes be made for merely personal damage, e.g., for defloration, contumely, defamation, mutilation, killing, etc.
It is indeed agreed among all: 1. that material restitution must be made if real damage was joined to personal damage, e.g., that restitution must be made for the expenses which a wounded person has for treatment; 2. that some material reparation is often to be counseled, since in this way the injured man is better satisfied; 3. that material reparation must be made if the judge has imposed it.8 But apart from these cases, must restitution be made for purely personal damage? Must, e.g., an unjust wounder give material compensation to him whose face he gravely disfigured with indelible scars? For the affirmative opinion St. Alphonsus9 adduces St. Thomas, Cajetan, and Sylvester Prierias, with whom Dominic Soto,10 Sylvius,11 and Billuart12 agree. Here are the words of St. Thomas:13 "In those things in which an equivalent cannot be recompensed, it suffices that what is possible be recompensed there, as is clear concerning honors which are toward God and parents. And therefore, when that which has been taken away cannot be restored by something equal, such compensation as is possible ought to be made; for example, when someone has taken a member away from another, he ought to recompense him either in money or in some honor, the condition of each person being considered, according to the judgment of a good man." - For the negative opinion St. Alphonsus cites Báñez, Lessius, Lugo, Laymann, Bonacina, Sanchez, Sporer, etc.; and the holy Doctor himself calls this negative opinion more probable and more common, and adduces this reason: "Because commutative justice obliges one to restore according to the equality of the damage inflicted. But where restitution must be made in a diverse genus, no equality is present, nor will there ever be any compensation of the damage; for by any amount of money whatever the damage will not be repaired at all, either in whole or in part."
As far as could be seen, other authors adduce the same or a similar reason for their negative opinion. But this reason does not seem convincing. For, granted but not conceded that the damager cannot repair personal damage according to equality, is it lawful to deduce logically from this: Therefore he is held to nothing? If someone has unjustly taken away 10,000 francs and is unable to restore the whole according to equality, is he not held at least to restore a notable part, if he can? - Then compensation for personal damage is not always and simply impossible. E.g., a rich hunter with a shotgun wounded a worker assisting in a driven hunt (commonly Treibjagd, chasse à rabatteurs), who from the injury has a disfigured face but no other material damage. If now the rich hunter spontaneously (or compelled by a judge) gives a sufficiently large sum to the injured worker, cannot there be sufficient compensation for the pains and disfigurement? Since these things are so, the opinion denying the obligation of restitution indeed does not seem sufficiently proved intrinsically, but nevertheless can be applied in practice: 1. since it is externally probable on account of the authority of theologians, and notably of St. Alphonsus, Doctor of the Church; 2. because he who has unjustly suffered personal damage is often judged to remit material reparation.14 Moreover, material damage is almost always joined to personal damage, and then assuredly there is a strict obligation of restitution.
8 German Civil Code §§ 253, 847, 1300; Austrian Civil Code §§ 1323-1330; Swiss Code of Obligations a. 47.
9 Theol. mor. l. 3, n. 627.
10 De iure et iust. l. 4, q. 6, a. 3.
11 Comm. in S. theol. 2, 2, q. 62, a. 2.
12 De iure et iust. diss. 10, a. 11, § 1.
13 S. theol. 2, 2, q. 62, a. 2 ad 1.
14 Billuart treats this question clearly, De iure et iust. diss. 10, a. 11, § 1.
205. The necessity of restitution. The restitution, in reality when possible, otherwise in desire, of a thing unjustly taken away or at least now unjustly possessed, or of damage unjustly inflicted, is necessary for salvation if it concerns a notable thing or damage.
It is proved 1. from Sacred Scripture. God prescribed restitution: "If anyone damages a field or vineyard, ... he shall restore according to the estimation of the damage."15 Therefore He says that the wicked man will not die "if ... he does penance for his sin and performs judgment and justice, and that wicked man restores the pledge and returns the robbery";16 and St. Paul admonishes: "Render therefore to all their dues."17
from the holy Fathers. Let one, St. Augustine, be heard: "For if another's thing through which the sin was committed is not returned when it can be returned, penance is not performed but feigned; but if it is truly performed, the sin will not be remitted unless what was taken away is restored; but, as I have said, when it can be restored."18 These words of St. Augustine were inserted into the Decree of Gratian,19 and Rule of Law 4 in the Liber Sextus has: "Sin is not remitted unless what was taken away is restored."
from reason. a) To preserve justice is necessary for salvation. But he who does not restore (when he can) what was unjustly taken away, unjustly possessed, and damage unjustly inflicted does not preserve but violates justice, because, namely, he does not preserve equality. Therefore such restitution is necessary for salvation.20 b) Moreover, not to steal is necessary for salvation; but not to restore a thing taken away is continued theft. For it is the unjust detention of another's thing. Therefore, at least after another's thing has been taken away, it must be restored. c) Finally, natural reason dictates that to each one his own must be rendered. Therefore that which was unjustly taken from one's neighbor must be rendered to him.
But I said: otherwise in desire, because, if real restitution is impossible, a firm purpose of restoring as soon as this will be possible is required and suffices. For no one is held to accomplish the impossible. Therefore, when a penitent confesses a grave injury committed, the confessor cannot impart absolution to him unless he promises that restitution will be made as quickly as possible. But if the penitent cannot restore the whole, he ought at least to return the possible part according to that maxim: He who cannot restore as much as he ought is held to restore as much as he can. Hence, e.g., he who took away 1,000 francs by theft and cannot really restore except 100 francs is held under grave sin to make this partial compensation and, moreover, to have a firm purpose of restoring the remaining 900 francs if he can. He who, having made a purpose of making restitution, neglects to execute it, sins. This sin indeed is numerically one, unless, however, the sinner repeatedly elicits the purpose and neglects it. Yet let the confessor not question the penitent too troublesomely concerning a repeated purpose neglected; it suffices if the penitent says for how much time he had the purpose not to restore or culpably neglected restitution.
15 Ex. 22, 5.
16 Ezek. 33, 14 sqq.
17 Rom. 13, 7.
18 Ep. 153 ad Maced. n. 20, formerly ep. 54 (Migne, Patr. lat. 33, 662).
20 Cf. S. theol. 2, 2, q. 62, a. 2.
206. The character of this necessity. a) Theologians dispute whether the precept of restitution is an affirmative or a negative precept.21
St. Thomas22 says: "The precept concerning restitution to be made, although according to its form it is affirmative, nevertheless implies in itself a negative precept by which we are forbidden to retain another's thing." In practice this controversy is of small importance, provided, however, that it is attended to that another's thing must be restored as quickly as this is possible.
b) Theologians likewise dispute whether restitution is necessary for salvation by necessity of means or of precept.
Without any doubt, actual restitution itself is not necessary by necessity of means; for even he who on account of inability cannot restore can be saved. But restitution in desire is necessary by necessity of means, insofar as no one can be saved who does not have a firm purpose of restoring a thing unjustly taken away or damage unjustly caused.
c) The obligation of restitution is grave if it concerns repairing damage absolutely or relatively grave.23 Otherwise there is only a light obligation. - Moreover, formal injustice or theological fault is required to induce an obligation of restitution from unjust damaging committed. If, however, a sentence of a judge has intervened, juridical fault suffices.24
Popular error. Entirely unfounded is the frequent opinion of the common people believing that the souls of the deceased are detained in purgatory for so long as their debts are not paid by their heirs. For the deceased, while he was living, either strove according to his powers to repair injuries done, or did not. If the former, he will be saved; if the latter, either grave fault was present, and then he is punished in Gehenna, or there was only light fault, and then he is punished longer or more briefly in purgatory according to the quantity of that fault, but not on account of the negligence of the heirs.
21 Cf. Tanquerey, Synopsis Theol. mor. de iust. n. 463.
22 L.c. a. 8 ad 1.
23 Cf. above, n. 80.
24 Cf. above, n. 93 sqq. Concerning the controversy whether light theological fault induces a grave, light, or no obligation of restitution, see n. 96.