Section — Prümmer, Manuale Theologiae Moralis
§ 3. In What Place Restitution Is To Be Made
238. 1. A possessor in good faith satisfies the obligation of restoring if, at the place of possession, he delivers the thing possessed by error to the free disposition of the legitimate proprietor.
Therefore, it suffices that he inform the proprietor of the existence of his thing, nor is he held to undertake the expenses or dangers of transmission. The reason is that the possessor in good faith possessed another's thing without fault and is not held to suffer any damage from that inculpable possession.
- A possessor in bad faith or an unjust damager ought at his own expense to restore the thing in the place where the owner would have had it if it had not been taken away, deducting, however, the expenses which the owner himself would also have made in transporting it.110
The reason is that the damager and possessor in bad faith ought to repair the whole damage which the owner suffered. But if the very thing taken away cannot be transmitted without great expenses, it suffices to send the price of the thing.
If the thing to be restored perishes by chance or by the fault of a third party in transmission, before it reaches the owner, the possessor in good faith is held to nothing, because the thing perishes to the owner; but the possessor in bad faith and the unjust damager are not freed from their obligation, but ought again to take care that the legitimate owner is rendered indemnified. Certainly, if the owner himself had designated the manner of transmission, then, in the case of loss, the owner and not the possessor in bad faith would have to suffer the damage.
110 Cf. Billuart, De iure et iust. diss. 8, a. 16.
239. Scholion. On restitution made through the assistance of a confessor. "Many probably judge that he is immune from a new restitution who delivered the money to be restored to a confessor, with whom it perished by chance or by the fault of a third party; for the confessor can be regarded as a messenger chosen from the presumed consent of the creditor, since restitution often cannot safely be made in another way without danger of infamy, and, besides, the confessor is by office a trustworthy messenger. - Hence, in practice, he who restores in this manner and thinks he has already satisfied his duty is not to be compelled to a new restitution." Thus Tanquerey.111 This opinion is also defended by Lessius, Sporer, Tamburini, and more recently Frassinetti, Lehmkuhl,112 and Noldin.113 I do not indeed deny the probability of this opinion, but in practice one should nearly always proceed in another manner. In a case in which the good to be restored perished without any fault either of the confessor or of the debtor, the confessor who is able to prove this misfortune should seek remission from the creditor, which in these circumstances will not be obtained with such difficulty.
St. Alphonsus114 poses the question: If a confessor imposed upon a thief that he distribute the thing taken away among the poor for the soul of the owner, notwithstanding that the owner is certain and known, has the thief satisfied the obligation of restitution? He deservedly answers in the negative, because it can in no way be presumed that the owner wills his thing to be distributed to the poor. Restitution ought therefore to be made again either by the thief or by the confessor who gave so false a counsel. Nevertheless, a subsequent confessor who learned this matter from the thief can leave him in good faith if he fears that grave inconvenience will arise from the admonition.
111 Synopsis Theol. mor. de iust. n. 559.
112 Theol. mor. I, n. 1225.
113 De praeceptis n. 501. St. Alphonsus treats this question excellently (Theol. mor. l. 3, n. 704), calling the opposite opinion common and to be held. But he concludes with these words: "Formerly I judged the first opinion [i.e., that which was expounded above from Tanquerey] truly probable; but after the reasons just adduced were subsequently better weighed, I greatly doubt its probability. - Yet, because Lessius and Sporer with Tamburini do not dare to condemn the first opinion, neither do I dare."
114 L. c.