§ 1. To Whom Restitution Is To Be Made

228. General principle. Restitution is of itself to be made to him whose strict right was violated, and, when he has died, to his heirs.

This is clear from the notion of commutative justice, whose office is to render to each one what is his, or to restore the equality of thing to thing. In the practical application of this principle, attention must be paid to whether the injured owner is: a) certain and known; b) unknown; c) doubtful.

229. First rule. If the injured owner is certain and known, restitution is ordinarily to be made to him (or to his successor). For the thing cries out to its owner. There are, however, certain exceptions to this rule, or rather limitations introduced by positive law.

Exceptions. 1. If the thing was taken away from a just possessor and not from the proprietor himself, it is to be restored (at least commonly) to the possessor and not to the proprietor. E.g., Peter borrowed a book from Paul; if the book was stolen from Peter, it ought ordinarily to be restored to Peter and not to Paul, because otherwise Peter can suffer damage or inconvenience.

2. If a community or society was injured, restitution is commonly to be made to the administrators of that community. If, however, that community is wholly depraved, such as a Masonic sect or (at least in some regions) a Socialist sect, restitution is not to be made to the society itself or to its administrators, because this would be to give favor to a depraved end, but to the individual members of the society.⁷⁷ Since this is often impossible, however, it suffices if the sum to be restored is distributed to the poor. But when the society is not so evil, i.e., if its principal end is not depraved, e.g., certain heretical societies, then restitution is to be made to the society itself, which is not deprived of its right on account of incidental evil ends.

⁷⁷ Thus Christians who had stolen things offered to idols were ordered to make restitution to the pagan priests of the temple. S. C. de Prop. Fide, 10 February 1795, and S. Offic., 21 September 1842, ad 4.

230. 3. If damage was caused to the state or city, restitution is to be made to the state or city. This restitution can be made in diverse ways:

a) by paying the sum owed to those who have been unjustly injured in goods of fortune by the civil power and to whom restitution is consequently owed by the state. Hence, since in very many kingdoms the Catholic Church has been unjustly despoiled of her goods, it suffices to distribute the sum owed for the good of the Church. Nevertheless, in this case it is better to distribute the sum not to the Church in general, but to some determinate ecclesiastical institute which has truly suffered unjust damage from such a government and has not yet remitted it. The reason is that, according to the opinion now certain, the dominion of ecclesiastical goods does not belong directly to the whole Church or to the Supreme Pontiff, but to the individual juridical ecclesiastical institutes.

b) Restitution can also be made by destroying stamps by which the price for carrying letters and other things is paid,⁷⁸ provided, however, that those stamps belong to the government of the state. Or restitution can be made by destroying public-debt bonds,⁷⁹ but not by destroying notes of private banks.⁸⁰

c) Finally, restitution can be made by distributing the sum owed to the poor; for since the obligation of assisting the poor is incumbent upon the state, its burdens are diminished in this manner.

⁷⁸ Postage stamps (Briefmarken); stamps (timbres); stamps.

⁷⁹ Commonly, government bonds (Staatsobligationen).

⁸⁰ Commonly, banknotes of private banks (Banknoten von Privatbanken).

231. 4. A special and indeed great difficulty can arise if restitution is to be made to an insurance company. When the insurance belongs to the treasury, restitution is then to be made to the treasury, as is clear from what was said above; but when the insurance is private, as it most often is, then, speaking of itself, restitution is to be made to the administrators of that insurance. Sometimes, however, this is not to be counseled, because many insurance companies have an agreement of reinsurance with other companies,⁸¹ and then it is uncertain who truly suffered the damage. There is also not rarely a danger lest the restitution made be misappropriated by unfaithful administrators. Since, therefore, restitution to the legitimate owner is often morally impossible, many authors, e.g., Göpfert⁸² and Noldin,⁸³ deservedly teach that in these doubts the sum to be restored can be given to the poor or to pious causes.

⁸¹ Reinsurance (Rückversicherung, réassurance).

⁸² Moraltheol. II, n. 126.

⁸³ De praeceptis n. 512.

232. 5. If restitution is to be made to someone who was compelled to make a cession of goods,⁸⁴ positive law then gravely commands that restitution be made not to the owner, but to the administrator of the goods appointed by public authority; for the owner's creditors have the right to be kept indemnified from all his goods. Nevertheless, if restitution was made not to the administrator but to the owner, provided the latter is an upright man and is in great necessity, it seems to be valid. The reason is that the disposition of positive law cannot in this case invalidate the natural law, which commands restitution to the owner. - Even outside a legal cession of goods, it is sometimes lawful to restore to the creditors and not to the owner, namely, when the latter is not reasonably unwilling that restitution be made in this manner. In practice, however, restitution is ordinarily not to be made to the creditors unless this is permitted by civil law.

⁸⁴ Commonly, bankruptcy proceedings (Konkurs), bankruptcy (Bankrott, faillite).

233. 6. When the owner has died, restitution is to be made to his heirs; for all the real rights of the deceased pass to the heirs, who are reckoned as though one person with the deceased.⁸⁵ Upon the failure of heirs, the sum to be restored is given to the poor or to pious causes or to stipends for Masses to be said for the repose of the deceased. I say: upon the failure of heirs; for when there are legitimate heirs of the deceased, the sum to be restored cannot be distributed as stipends for Masses to be said for the deceased (unless, however, the heirs consent to this).

7. He who gave the thing to be restored to the poor or to pious causes, while the owner or his heirs were known and restitution could be made to them, did not satisfy his obligation, and therefore ought to restore again, because restitution ought altogether to be made to the legitimate owner or his heirs (Sacred Penitentiary, 7 February 1899).⁸⁶

This is so, at least if it is morally possible. But a moral impossibility of restoring to the legitimate owner is regarded as present if he who is obliged to restitution would, by restoring to the legitimate owner, have to undergo damage twice as great. Authors, however, by no means agree in measuring this impossibility. Here are the words of St. Alphonsus:⁸⁷

"If there is hope that the thing or its price may at another time be restored to the owner or his heirs without great damage to the debtor, then Bonacina, Lugo, and Lessius probably say that restitution can be deferred. But if such hope is lacking, so that the owner would be deprived of the thing, then Lessius and Dicastillus, cited by Croix (who does not disapprove it, with Lugo), still probably say that, if the thing is of small importance and the damage to the thief would be twice as great, restitution could then be applied to the poor or to pious works, because in this the owner is presumed to consent. But if the thing were of great importance, ... [several] excuse the thief from restoring immediately to the owner in the case in which the expenses to be made would be equal to the value of the thing. But Tamburini, Sporer, and Croix with Lugo, Vasquez, and Ilsung do not commonly admit this. - Scotus, Gabriel, and Richard, cited by Croix, excuse him, however, if the expenses were greater than the debt. This is also the opinion of the Gloss on the chapter Cum tu, De usuris, where it is said that the thief is not held to send the thing to the owner if the expenses of conveyance exceed the value of the thing itself. More probably, however, Sporer, Tamburini, and Molina excuse only in the case in which the expenses would be much greater; indeed, Lugo obliges the thief even if he would suffer damage twice as great. But when the damage would be altogether excessive, it suffices to restore to the poor."

In so great a labyrinth of opinions (all of which do not exceed the limits of probability), let each choose whichever he wishes. In our times, since at least the price of the thing taken away can be sent even to distant regions without great expenses, the case is not so practical. It can happen, however, that the owner has migrated to a distant region and his domicile cannot be learned without great labor and expenses. If in that case the debtor would have to spend a sum greater than the debt itself in order to find the domicile, he can with a safe conscience omit the investigation and distribute the whole debt to the poor.⁸⁸

⁸⁵ St. Thomas, S. theol. 2, 2, q. 62, a. 5, ad 3.

⁸⁶ Collect. de Prop. Fide n. 2038.

⁸⁷ Theol. mor. l. 3, n. 598.

⁸⁸ St. Thomas seems to favor this opinion, IV, dist. 15, q. 1, a. 5, q. 4, ad 5. Cf. also Billuart, De iust. et iure diss. 8, a. 16.

234. Second rule. If the injured owner is unknown, the possessor of the thing ought to make diligent inquiry; when this has been carried out without effect, a possessor in good faith can retain the thing, as was already said above in n. 213; but a possessor in bad faith or an unjust damager is held to give the thing to the poor or to pious causes.

That a possessor in good faith can retain the thing when the legitimate owner remains unknown is probably taught, after St. Alphonsus,⁸⁹ by nearly all modern authors: Noldin,⁹⁰ Tanquerey,⁹¹ Marc,⁹² and Göpfert.⁹³ The reason is that, since a finder can probably retain a thing found if the owner does not appear after diligent inquiry, a fortiori this is lawful for a possessor in good faith, since the latter began to possess the thing by a colored title. The older authors, on the contrary, do not admit this.⁹⁴ St. Thomas says:⁹⁵ "If he to whom restitution ought to be made is altogether unknown, a man ought to restore according as he can, namely, by giving alms for his welfare, whether he is dead or living, diligent inquiry concerning the person to whom restitution is to be made having first been undertaken." These words of the Angelic Doctor, however, are understood by some authors of a possessor in bad faith alone, or as a counsel and not a precept.⁹⁶

A possessor in bad faith or an unjust damager is held, when the owner remains unknown, to distribute the thing to the poor or to pious places. Thus theologians most commonly teach, although they do not agree concerning the foundation and reason of restitution, especially if there is question of restitution to be made by an unjust damager, some deriving this obligation from natural law, others from the law of nations, and others from ecclesiastical law.⁹⁷ We think it is derived from both laws: from natural law indeed, because it is repugnant both to the common good and to right reason that a wrongdoer (such as a possessor in bad faith or an unjust damager) should obtain utility from his malice and not be punished; and from ecclesiastical law, which compels the possessor to restore usurious and simoniacal goods.⁹⁸ For it must be noted that an unjust possessor or damager has injured not only a private person, but always also human society; and therefore, when he cannot satisfy the private person because the latter is unknown, he ought nevertheless to satisfy human society, either by the relief of the poor or by the assistance of pious causes.

If perhaps the possessor in bad faith or the unjust damager is himself poor, according to the probable opinion of many theologians he can retain the thing, or at least a part of it, for himself as alms, since he is not of a worse condition than other poor persons. Besides, in this case, when the debtor is so poor, he is in a moral impossibility of restoring and is therefore excused, provided he has the purpose of restoring when sufficient fortune is present.

⁸⁹ L. c. n. 589.

⁹⁰ De praeceptis n. 503.

⁹¹ Synopsis theol. mor. de iust. n. 555.

⁹² Instit. mor. I, n. 999.

⁹³ Moraltheol. II, n. 170.

⁹⁴ Cf. Billuart, l. c. a. 14, § 2.

⁹⁵ S. theol. 2, 2, q. 62, a. 5, ad 3.

⁹⁶ Cf. what was said above in n. 49 concerning the acquisition of a thing found.

⁹⁷ Cf. Vermeersch, Quaest. de iust. n. 167. Almost Aertnys alone (Theol. mor. l. 3, n. 346, q. 4) favors the opinion that from unjust damaging there does not arise in this case an obligation of restoring to the poor.

⁹⁸ Cf. c. 5, X 5, 19; c. 16, X 5, 6; Code of Canon Law, canons 729 and 1543. By customary law these laws are extended to all debts arising from a delict.

235. Third rule. If the owner is uncertain or doubtful, inquiry ought first to be made, and indeed with that diligence which is proportionate to the value of the thing. But if the doubt remains, a distinction must be made:

a) If the doubtful owner is among a few⁹⁹ (three or four), i.e., if it is doubted which of three or four persons is the true owner, the thing or its price ought to be divided among them in the best manner in which this can be done, nor is it lawful to give the thing to the poor.

b) If the doubtful owner is among many (and the same applies if a few true doubtful owners are among many),¹⁰⁰ restitution is then to be made to the poor.

c) If there are several doubtful owners and they dwell in the same place, then, according to St. Alphonsus,¹⁰¹ restitution ought altogether to be made to the poor of this injured community, because, since the community of that place was injured, the damage ought also to be repaired to it. In large cities, however, where citizens change their domiciles very easily, it does not seem necessary that restitution be made to the poor of the same city, but it can be made to any poor persons. Hence merchants who inflicted damage upon many buyers now unknown, by adulterating merchandise or diminishing weights and measures, can restore by increasing the weight and measure or diminishing the price of the merchandise, if the same buyers are still accustomed to return to the market; otherwise they are held to restore to the poor. Lehmkuhl deservedly says:¹⁰² "Wherefore I judge that without any scruple restitution can immediately be made to the poor or to public pious and useful ends of the very place where the frauds were committed; and that it can also be made to any poor persons or pious causes, at least without grave sin, or, if a reasonable cause is present, without any sin." The reasons are: a) the continual change of citizens in large cities; b) the sufficiently small probability of restoring in this manner to the true injured owners; c) the arduous difficulty of restoring gradually over an excessively long time a sum perhaps great, which can much more easily be distributed to the poor once or in a few installments.

⁹⁹ E.g., someone took away a purse which belonged to one of three persons, and he does not know to which one.

¹⁰⁰ E.g., a certain merchant sold adulterated merchandise to one or a few inhabitants of a certain city.

¹⁰¹ Theol. mor. l. 3, n. 589.

¹⁰² Cas. consc. I, n. 746.

236. The question is connected here: To whom ought restitution first to be made, or in what order ought the creditors to be satisfied?

1. If the debtor can satisfy all his creditors, no order need necessarily be observed in restoring.

2. But if all cannot be satisfied, then the positive law in force at the place of restitution concerning the cession of goods (commonly, Konkursordnung) is to be observed, at least if the cession of goods has already been juridically declared. Positive law ordinarily distinguishes among privileged,¹⁰³ mortgage, and common debts, and determines in what order and proportion each debt is to be paid. All these statutes seem to oblige in conscience. Thus the common opinion of modern theologians.¹⁰⁴ Hence, if someone pays the creditors in another order, with notable damage to the others, he sins gravely and is held to make restitution to the others injured. But before the cession of goods is juridically declared, although it is certainly foreseen, the individual creditors are to be satisfied in the following order:

a) Goods which have not yet passed into the ownership of the debtor are to be returned, e.g., things lent for use and things deposited.

b) Poor creditors are to be satisfied. Thus from charity.

c) Creditors prior in time or first making demand are to be satisfied. Nevertheless, when a just cause exists, debtors unable to satisfy all creditors are not to be disturbed if, after first returning those goods which have not yet passed into their ownership, they do not observe the order indicated here and satisfy one creditor rather than another. Indeed, for a just cause they can warn some creditor to seek payment of the debt.¹⁰⁵ Sometimes, however, positive laws declare invalid payments made a short time before the juridical cession of goods. These laws, being very reasonable and just, seem to oblige in conscience. Hence, if some creditor secretly receives a notable sum contrary to the statutes of those laws from a debtor unable to satisfy all his creditors, he is held to restore the thing received. You may see the diverse opinions of theologians on this question in St. Alphonsus.¹⁰⁶

¹⁰³ E.g., funeral and medical expenses for the last illness and the wages of servants.

¹⁰⁴ Cf. Göpfert, Moraltheol. II, n. 121; Lehmkuhl, Theol. mor. I, n. 1219; Noldin, De praeceptis n. 519.

¹⁰⁵ Thus also Noldin, l. c. n. 507.

¹⁰⁶ Theol. mor. l. 3, nn. 691-694.