Article II. On The Roots Of Restitution To Be Made

207. Preliminary observation. The Angelic Doctor²⁵ succinctly notes: "Restitution is not principally ordered to this, that he who has more than he ought may cease to have it; but to this, that what is lacking may be supplied to him who has less." In whatever manner, therefore, some thing has been taken away from its legitimate owner (whether by loan, by theft, by damaging, etc.), it ought to be restored to equality. This restitution indeed is an act of commutative justice. But a thing taken away from its legitimate owner can either be detained by another or be unjustly destroyed. Hence a twofold root from which the obligation of restitution springs is most commonly assigned: another's thing possessed and another's thing destroyed or damaged.²⁶ A third root, namely, unjust cooperation, is undeservedly assigned by some authors. For cooperation induces the obligation of restitution not by reason of itself, but by reason of another's thing either possessed or destroyed, and therefore is reduced to one or the other of the roots assigned. We shall treat individually of the two assigned roots of restitution.

²⁵ S. theol. 2, 2, q. 62, a. 6 ad 1.

²⁶ Cf. S. Alph., Theol. mor. l. 3, n. 548. St. Thomas and the older theologians, taking restitution in a somewhat broader sense, are accustomed to express the two roots of restitution in this way: A man is held to restore either 1. by reason of a thing received, or 2. by reason of the reception of a thing. By reason of a thing received, the possessor in good faith and in bad faith ought to restore another's thing; by reason of the reception of a thing, the obligation of restitution arises: a) from every delict which causes real damage to one's neighbor; b) from certain contracts, e.g., from a loan or deposit (cf. S. theol. 2, 2, q. 62, a. 6; Const. Hohenlohe, O.S.B., Gründe der Schadenersatzpflicht [1914], p. 170 sqq.; Fr. Schindler, Quellen des Schadenersatzes, in Innsbrucker Zeitschrift für Theol. 1915, p. 605 sqq.). There will later be a special discussion of the obligation arising from contracts, and therefore we omit it now.