Part I — Chapter III: On Restitution

459. When a strict right has been violated, justice demands that it be repaired: this is done by restitution, and therefore we must now treat of it.

Preliminary notes: on the notion and obligation of restitution.

I. On the roots of restitution:

• On unjust damaging:
  • insofar as it is unjust;
  • insofar as it is an efficacious cause of damage;
  • insofar as it is set down by a culpable action.
• On possession of another's thing:
  • on a possessor in good faith;
  • on a possessor in bad faith;
  • on a possessor in doubtful faith.
• On unjust cooperation:
  • who are bound to restore?
  • in what order?

II. On the mode of restoring:

• In general:
  • to whom?
  • in what place?
  • at what time?
  • how must restitution be made?
• As regards certain goods in particular:
  • as regards goods of the body;
  • as regards goods of the soul;
  • on account of the impeded attainment of a good;
  • as regards defrauded taxes.

III. On causes excusing from restitution:

• for a time;
• forever.

By the name of restitution the older Theologians understood only the rendering back of another's thing; but modern theologians, by extension, designate by this name any reparation whatever of an injured right.

460. Restitution is an act of justice by which an injury is repaired to equality, whether by compensation of damage unjustly inflicted, or by the rendering back of another's thing. - Therefore it differs from satisfaction, which is the reparation of injured honor and directly touches the person; and also from the payment of a debt, by which a certain obligation is extinguished, although no injury has been inflicted.

¹ St. Thomas, 2-2, q. 62; Soto, lib. IV, q. 6-7; Molina, disp. 714-716; Sayrus, lib. X, Tr. 1; Lugo, disp. VIII, n. 17-25; Lessius, lib. I, cap. VII, dub. 4; Billuart, diss. VIII, art. 1-2; St. Alphonsus, n. 547; Carriere, III, n. 1021-1031; Baller. P., n. 332-335; Noldin, n. 422-424; Bourdaloue, Sermon pour le 22e Dim. apres la Pentecote, on Restitution.

461. Principle: There is a precept of justice, of itself obliging under grave sin, to restore, in reality or in desire, what is owed to the neighbor from strict right.

It is said: (a) of itself obliging under grave sin: for just as injury of itself is forbidden under grave sin, so the reparation of the same of itself is commanded under grave sin; but if the injury is light, reparation is owed only under light sin.

(b) In reality or in desire; namely in reality, as often as this is possible; but if for the time it is morally impossible, at least the intention or desire of restoring as soon as possible must be conceived in the mind.

It is proved. (A) By reason. (a) Justice certainly forbids that an injury inflicted on someone be continued; but he who does not restore a thing taken away, or does not repair damage inflicted, when he can furnish this, by that very fact does not cease to cause injury; for, by unjustly detaining another's thing, he prevents the neighbor from the use of his own thing, and thus does injury to him; likewise, by not compensating damage, he as it were renews it, and thus does not cease to violate the right of another. - (b) No sin can be remitted without sincere contrition and a firm purpose; but he lacks genuine contrition who wishes to retain another's good unjustly possessed, - nor does he have a firm purpose of not sinning who pertinaciously refuses to repair damage unjustly inflicted by himself.

(B) Deservedly, therefore, Scripture commands and commends restitution. (a) Under the Old Law it was said: "If anyone shall have stolen an ox or a sheep, and shall have killed or sold it, he shall restore five oxen for one ox, and four sheep for one sheep... If he does not have that which he may render for the theft, he himself shall be sold."² Hence remission of sins was granted to him who restored the stolen thing;¹ and those who were held as saints, such as Tobias, were altogether solicitous about making restitution: "See lest perhaps it be stolen: return it to its owners, because it is not lawful for us either to eat anything from theft, or to touch it."² - (b) Under the New Law, Zacchaeus, the publican converted to Christ, is reported to have said: "If I have defrauded anyone of anything, I restore fourfold";³ and those who unjustly retain the salary of workers are most gravely reproved:⁴ "Behold the wages of the laborers who have reaped your fields, which has been defrauded by you, cries out, and their cry has entered into the ears of the Lord of Sabaoth."

² Exod. XXII, 1-3. Here however it is said that more must be restored than what was unjustly taken away, by way of penalty, by which the Jews might be more efficaciously deterred from theft.

¹ Ezech., XXXIII, 14-15.

² Tob., II, 21.

³ Luke, XIX, 8. There fourfold restitution is promised, not indeed from justice, but, as is said, unto the abundance of right.

⁴ James, V, 4.

Hence in Canon Law this axiom uttered by St. Augustine has been received:⁵ "The sin is not remitted unless what was taken away is restored."

⁵ Behold the words of St. Augustine (Ep. 153, to Macedonius, n. 20, in Migne, P. L. XXXIII, 662): "For if another's thing, on account of which the sin was committed, when it can be restored, is not restored, penance is not done, but feigned: but if it is truly done, the sin will not be remitted unless what was taken away is restored; but, as I said, when it can be restored." These words were inserted in the Decree of Gratian, cap. Si res aliena, I, caus. XIV, quaest. 6; and from the last words rule 4 of law in 6° was formed.

462. Corollaries. (A) The obligation of restoring obliges under mortal sin when the matter itself is grave, according to the principles explained above concerning theft (n. 436); hence he who restores only in part, yet so that the part which he retains does not attain grave matter, does not sin gravely by detaining it; but, even in this case, restitution is to be advised under venial sin.

463. (B) The precept of restitution is primarily negative, insofar as it forbids that another's thing be unjustly detained; and secondarily affirmative, insofar as it commands another's thing to be rendered back, precisely because it is prohibited to detain it. Under this head restitution must morally be made as soon as possible; otherwise the owner is unjustly deprived of the use of his own thing. Hence he who cannot here and now restore is bound immediately at least to have the intention of restoring, and at the same time to take care that he satisfy his obligation as soon as possible. Likewise if he cannot restore the whole, let him immediately restore a part, if this can be done.

464. (C) He who voluntarily omits restitution sins during the whole time of the omission, not only insofar as he positively conceives the purpose of not restoring, but also insofar as he voluntarily omits to satisfy his obligation. Yet he who keeps another's thing for a long time commits one sin in number, provided he always perseveres in the same purpose of not restoring. But if he explicitly or implicitly revokes this purpose, he sins as often as he renews that interrupted purpose.

Nevertheless the confessor should not too molestingly question the penitent about the number of internal sins committed in this matter; but he should only inquire whether he continuously persevered in the same will of not restoring, and for how much time another's thing was detained, so that thus he may be able morally to infer how great the number of sins is. The reason is that for the most part the faithful do not think about this multiplication of internal sins.

465. (D) He is certainly unworthy of absolution who, without an excusing reason, does not wish to restore another's thing of great price, when he is conscious of the obligation incumbent upon him: for he lacks genuine contrition. The same must be said of him who, without cause, defers restitution, - or who, burdened by debt, makes useless expenses and does not pay debts. - But if the penitent is in good faith, and at the same time it is foreseen that an admonition will not be profitable (which nevertheless should not easily be presumed), the admonition can be omitted, according to what was said above in the Treatise on Penance, n. 395-397.

The cause on account of which restitution must be made is the injury of another's strict right; yet this can happen in two ways: by damage unjustly inflicted, - and by detention of another's thing; therefore a twofold root of restitution is distinguished: unjust damaging, and detention of another's thing. But because in both cases unjust cooperation can be present, this likewise must be discussed.

An unjust damager is he who inflicts damage upon another, without cause, even without his own profit.

¹ St. Thomas, 2. 2., q. 62, a. 4; Soto, lib. IV, q. 7, art. 3; Lugo, disp. XVIII, n. 75-116; Lessius, cap. 12, dub. 18-19; Billuart, diss. VIII, art. 3-7; Sporer-Bierbaum, Tr. V, n. 791-795 and 884-895; St. Alphonsus, n. 549-556; Carriere, n. 1103-1161; Baller. P., n. 337-353; Lehmk., n. 962-980.

466. Principle: In order that the damager be bound to restore, three conditions are required simultaneously: that his action (under which name the omission of a due action also must be understood) be unjust, an efficacious cause of the damage, and theologically culpable.

1. The damaging action must be unjust, that is, a violation of the strict right of another, whether in a thing or to a thing; otherwise, there would not be an injury properly so called, nor therefore an obligation of restoring. In truth, if the action is opposed only to charity, equity, or another virtue, it can indeed be gravely sinful, but it does not require the reparation of a right which in fact was not violated.

(A) He is not bound to restitution who, while he uses his own right, harms others: e.g., he who by legitimately trading is the cause why other merchants sell less; or he who, fleeing from enemies, tramples another's crops underfoot; or who by persuasions and counsels persuades another not to make a testament in favor of some person; likewise he who digs a deep pit on his own property, into which a stranger falls.

(B) On the contrary, he who by unjust means, namely by force, fraud, lying, or unjust detraction, impedes another from attaining some good to which this other has a strict right, is bound to restitution; thus the advocate who impedes a creditor from obtaining payment of some debt; the heir who prevents the notary (notaire) from writing the testament which the dying man wishes to make in favor of another; the merchant who harms the affairs of the neighbor by intercepting his letters, or by spreading calumnies against him; likewise he who by calumnies impedes a superior from conferring a benefice or office upon someone worthy, who otherwise would have been selected: for although this one does not have a strict right that he be selected, he does have a strict right not to be excluded from this office by unjust means.

467. (C) The obligation of restoring of itself does not arise from distributive justice, because, although the public good demands that offices and benefices be distributed to the more worthy, candidates do not have a strict and rigorous right to obtaining these offices; hence their right is not strictly violated.

Yet there are cases in which the violation of distributive justice accidentally obliges to restitution, namely when the strict right either of individuals or of society is injured. Now it is so:

(a) In a competitive examination: namely if some competitor is unjustly judged by the examiners as unworthy, while in truth he is worthy, he is deprived of his strict right, and therefore place is given to restitution; yet, since not all the worthy are chosen by superiors, the competitor is deprived of a strict right not to the office itself, but to the hope of obtaining it; and therefore restitution in this case will be lesser. - Likewise, if a limited number of competitors is admitted into such or such a school, examiners who unjustly count as worthy one who in truth is not worthy deprive one of the competitors of the strict right which he had of entering the school, and under this head are bound to compensate the damages to him.

But the superior who, among the worthy, does not select the more worthy, does not seem to be strictly bound to restitution, because the more worthy one, although to be preferred to the others both from equity and from the public good, does not have a strict right that he be selected, unless however this has been determined by some law.

468. (b) In the distribution of burdens, e.g., of taxes. Those who knowingly and willingly burden some citizens too much and others less are bound to restitution, because they inflict damage upon certain citizens, or upon the State, according to the various rights which have been injured.

(c) In the distribution of offices. If some superior (president, governor, commander, etc.) knowingly and willingly confers certain offices upon those who are altogether unable to exercise them, by that very fact he is the unjust cause of the damage which arises from this either to society or to individuals; for by choosing such men, he could and ought to have foreseen that these damages would arise, and from his office he is bound to impede them; thus, e.g., if someone were to choose as physician or surgeon of an army one who is altogether unfit for this office.

469. 2. The damaging action must be an efficacious cause of the damage; for this two things are required: that damage was truly inflicted (for a damaging intention does not suffice); that it followed from the action as from its own cause. For he alone is bound to repair damage who is truly the author of the damage; but no one can be called author except he who, whether physically or morally, effects the damage or has influence upon it, or in other words, who is truly the efficient cause, whether total or partial, of that damage.

470. Hence he is not bound to restitution who is only the occasion of damage; for an occasion is not a true cause, but only that upon the placing of which the true cause acts.

Thus, e.g., Peter kills John, and Paul, who is thought to be the author of this homicide, is seized and condemned; Peter, by killing John, is not the cause, but only the occasion, of Paul's death; for the true cause of this death is the judge, who condemned Paul from insufficient motives. - But, if Peter purposely used Paul's garments or weapons so that Paul might be accused of John's killing, he truly is the moral cause, at least partial, of Paul's death, because he used unjust means to deceive the judge; and therefore he is bound to restitution. - But what if the same Peter indeed foresaw and willed that Paul be condemned, although he did not use unjust means to deceive the judges? Certainly he sinned gravely against charity, indeed against justice by an internal affection, namely by desiring that the judges condemn an innocent man; but whether he violated justice externally, so that he is bound to restitution, theologians do not agree; some equate this case with the preceding and answer negatively; but others, more probably, as I think, affirm: for by killing John, he foresaw and willed Paul's condemnation, and, although the judges are the principal cause of the unjust condemnation, he can be held as a cooperator, insofar as he unjustly placed an action from which Paul's death would follow.

471. Nor is he bound to restitution whose action was only a condition sine qua non, or that without which the true cause cannot act.

Titius, e.g., returns to Sempronius a gun, which the latter abuses for killing Caius; an action of this kind could be a condition without which the homicide would not have been committed, but not the true cause of it, which is nothing other than the malice of Sempronius. But otherwise it would have to be said if Titius had furnished the gun to Sempronius for this end, that the latter should kill Caius; for then he would be a partial cause, or cooperator, of the homicide.

472. An action which is only a cause by accident must be held as an efficacious cause; but because the damage cannot be foreseen as probably going to follow, then the action of the agent does not have a moral connection with the evil effect, since the third condition, or theological fault, is lacking.

Thus he who takes away from a miser a thing of slight value, without being able probably to foresee that the miser will die of sadness because of this, is only a cause by accident of his death, since the true cause of this is the depraved affection of the miser; nor therefore is he bound to restitution of the damages arising from the death; - but otherwise, if he foresaw and intended this effect, because then he is an unjust cooperator in the death. Likewise, he who in a remote place lights a fire, which a wind unexpectedly risen casts into crops, is only a cause by accident of this conflagration; otherwise, if he lit the fire when the wind had already risen, so that he could have foreseen the conflagration.

473. Therefore, for judging whether some action is an efficacious cause of damage, attention must be paid to the natural connection between the action and the damage inflicted. If the agent employed means suited to inflicting the damage, he truly is the efficient cause of this damage; but if he did not employ means suited to inflicting it, he is not its efficacious cause. - As regards the influence of intention upon injustice, see n. 288.

474. 3. The damaging action must be culpable. But fault can be twofold: theological, or moral, and juridical. The former is that which is done with advertence on the part of the intellect and consent on the part of the will; - the latter, i.e., merely juridical, is the omission of diligence required by civil laws, which nevertheless, on account of inadvertence or indeliberation, is not imputable before God. Hence any external or internal causes which remove the free voluntary, e.g., ignorance, indeliberation, force, fear, etc., excuse from theological fault; while from juridical fault only those legal causes excuse which can be proved in the external forum, such as defect of reason, coercion, fortuitous event, etc. With these things posited:

475. (A) With natural law considered, apart from contract, there is no strict obligation of repairing damage except from theological fault. For (a) in order that we may be bound by the moral obligation of restoring, the damaging action must proceed from us not only as from a physical cause, but also as from a moral and free cause; but if theological fault is not present, the action does not proceed from the free will, but from a fortuitous event, or from imprudence of which we are not conscious. (b) Moreover, the obligation in conscience of repairing damage, even apart from theological fault, is not necessary for the security of dominion; for the moral obligation of employing common diligence always remains, and this suffices for providing for this security. Indeed such an obligation would be harmful; for it would give place to many anxieties, and thus not a few would abstain from acting, lest perhaps they incur the obligation of repairing damages inadvertently inflicted.

Yet I said, apart from contract, explicit or implicit; for if a pact has intervened concerning repairing damage, in whatever way the thing perishes, this must be stood by, even in conscience, since a pact of this kind is legitimate; e.g., if a maidservant promised that she would pay damages from a fortuitous event; if the thing perished while someone was in culpable delay.

476. (B) Civil laws which decree an obligation of repairing damage from merely juridical fault oblige in conscience, but only after the sentence of the judge. - It is explained: (a) they oblige in conscience, because they are just, since they favor all citizens equally, and render men more vigilant lest they inflict damage upon others; - but after the sentence of the judge, for, on the one hand, it is too hard that someone should of his own accord condemn himself to the reparation of damage which morally is not imputable to him; and on the other, the purpose of the law is sufficiently obtained if the damager from merely juridical fault is bound to repair damage after the sentence of the judge.

(b) Yet, even before the sentence of the judge, charity obliges to the reparation of that damage which is certainly owed from civil law, when the injured person asks this, and moreover cannot have recourse to the judge without grave inconvenience, e.g., without expenses burdensome to him.

Corollaries.

477. Restitution on account of damage inflicted must be made to equality; and therefore the unjust damager is bound not only to restore the price of the thing destroyed, but also to compensate all damages which effectively and culpably followed from his action; thus he who culpably burns another's house must pay not only its price, but also the expenses which the owner incurs under this head, until a new house has been built or procured. The reason is that restitution is an act of the virtue of justice, which requires that there be rendered to the neighbor, to equality, whatever is owed to him from strict right.

Therefore he who has inflicted grave damage with grave fault is bound under grave sin to repair the whole damage.

478. But if damage is inflicted from light theological fault, a distinction is needed:

(A) If the lightness of the fault arises from lightness of matter, it is certain that restitution must be made under light sin.

(B) If the fault is venial from imperfection of advertence or consent, more probably, with natural law alone considered, there is no obligation of restoring grave damage inflicted; e.g., if a servant from venial negligence left the doors open, from which it happened that a grave theft was committed; - if from venial negligence death is inflicted with a gun. For such an obligation cannot be imposed under grave sin: because the obligation of repairing great damage is something grave; but a grave obligation cannot arise from a light delict, since there ought to be proportion between the delict and the penalty. Indeed, according to some,¹ this obligation cannot be imposed under light sin; for there ought to be proportion between the gravity of the obligation and the matter of this obligation; but it seems more probable, from the common sense of honorable men, that the obligation of repairing the whole damage must be imposed under light sin.

¹ Thus Lugo, disp. VIII, n. 56; St. Alphonsus, n. 552 with the authors alleged there.

Yet not a few theologians² probably say that restitution must be made according to the proportion of the fault, and therefore that a light part of the damage must be repaired under light sin.

² Laymann, lib. III, tr. III, c. 6, n. 4; Carriere, n. 1156.

In practice, the damager is not to be compelled to restitution before the sentence of the judge, but only exhorted to compensate the damage in the better way in which it can be done, by arranging the matter with the injured person.

479. (C) If the fault is venial, although fully deliberate, because grave damage was inflicted through several venial acts, a distinction must be made:

(a) If small damages have been inflicted upon the same person, and are joined by moral union, there is a grave obligation of restoring; for the damager is bound to repair the whole damage deliberately and unjustly committed by him; but in this case the damage inflicted is something grave, and the gravity of the obligation is proportioned to the gravity of the matter; therefore under grave sin he is bound to repair the grave damage.

(b) But if light damages have been inflicted upon diverse persons, so that no one has suffered grave damage, more probably the obligation of restoring is only light; for, since no one has been gravely injured, no one can under grave sin compel the damager to reparation; moreover, since from this damage he has not become richer, he is not bound to restore under grave sin by reason of detention of another's thing; and thus there is a difference between a damager and him who has committed small thefts.

480. (A) He who by an inculpable or lightly culpable action has posited the cause of another's damage is bound to impede such a cause from producing its effect, provided he can effect this without relatively grave inconvenience; otherwise he is bound to restitution, and indeed under grave sin, if the damage is grave.

Thus, e.g., a physician or pharmacist who inadvertently prescribes or furnishes poison, and afterward notices this; - he who inadvertently casts fire into a heap of hay is bound, if it can be done, to extinguish the fire; he who from error gravely injures the reputation of the neighbor, etc. For each one is bound by equal right to abstain from an unjust action, and to retract this action once posited, if it can be done; otherwise, he truly intends and perpetrates the evil effect which follows from it.

But if the damage cannot be impeded without one's own relatively grave inconvenience, there is a sufficient reason for permitting the evil effect. For judging about the relative gravity of the inconvenience, this must be compared with the damage which the neighbor is going to suffer.

481. (B) If someone culpably has posited the physical cause of some damage, and afterward has retracted the evil will before the whole damage is produced, he nevertheless is bound to restitution of the whole damage actually inflicted, if in fact he did not impede it; for he who voluntarily posited the physical cause of damage, however much he afterward grieves, is truly the efficacious and culpable cause of the damage, and is bound to repair it.

Thus he who has given poison to another, although afterward repentant he furnishes an antidote, but uselessly, truly is the cause of death; likewise he who, wishing to burn a house, has applied torches to the house, even if he tries to extinguish the fire, truly is the efficacious and free cause of the burning and is bound to restitution.

482. (A) The error concerns the gravity of the damage. He who by invincible error thinks that the damage which he inflicts is less than it truly is, more probably by natural law is bound only to restoring the part of the damage which he apprehended in his mind, unless however he apprehended the whole damage confusedly (e.g., a maidservant destroys or throws into the sea a jewel which she thinks to be worth ten coins, and which in fact is worth one hundred). For only that damage must be repaired which was voluntarily inflicted; but the excess of the damage was not voluntarily inflicted, since it was invincibly unknown. - But if the whole damage is apprehended confusedly (e.g., a homicide confusedly foresees various damages going to arise from this), the whole must be repaired, since it is sufficiently voluntary.

483. (B) The error concerns the injured person; - e.g., if someone burns the house of Peter, while he wishes to burn the house of Paul his enemy; or, intending to kill Caius, kills Titius. - A twofold opinion is given.

(a) Some, such as Lugo, Lacroix, and St. Alphonsus,¹ say that the damager in this case is not bound to restitution; for, in order that an action oblige to restitution, it is necessary that it be materially and at the same time formally injurious toward the injured person; but in the case, the action is materially injurious to Peter, and formally injurious to Paul, but not materially and at the same time formally injurious to the same person; hence there is no obligation of restoring anything to Paul, who in fact is not injured, nor to Peter, who is injured apart from the intention.

¹ Lugo, disp. XVII, n. 78; Lacroix, lib. III, p. 2, n. 200; St. Alphonsus, n. 629.

(b) Yet the more common and truer opinion is that the damager is bound in this case to restitution; for he is truly the unjust, efficacious, and culpable cause of the damage inflicted: unjust indeed, since he knows very well that he has no right to burn this house or kill this man, whoever he may be; efficacious, since he in fact burns the house or kills the man; culpable, since, notwithstanding the error about the person, he knows and wills to destroy a house or life, which he is prohibited by strict justice from destroying; - therefore nothing is lacking for an injury, whether material or formal. - In truth the error is not about the substance, but about the accidental things of the damaging action: he indeed thinks that the man present is Caius, but at the same time he knows that the man here and now present is innocent, and he wills to kill this innocent man and in fact kills him. - Nor can it be said that he is so disposed that he would not elicit a sinful act if he knew that this man was not his enemy; for the question is not what he would do or not do, given the hypothesis, but what he wills to do and does; but he wills to kill and in fact kills an innocent man. Hence we think that this second opinion is to be followed in practice; the reason which the defenders of the first opinion bring forward is indeed subtle, but is opposed to the moral sense of men, and therefore is to be rejected.

484. Whatever may be the case, there are certain conclusions about which almost all grave theologians agree:

(a) Restitution must certainly be made when the reason for inflicting damage is not taken from the person as such, but from his office; e.g., if someone, intending to kill a priest from hatred of religion, strikes Titius the priest, thinking him to be Caius the priest; say the same of him who wished to kill a magistrate, a soldier.

(b) Restitution likewise certainly must be made when sufficient care has not been employed for avoiding the error: because then, at least confusedly, the damager foresaw the evil effect which followed from it.

(c) When the damager, from two things pertaining to the same owner, indeed wishes to destroy one, but through error destroys the other, he must restore at least the price of the thing which is of lesser value; for the injury, both material and formal, falls upon the same owner; but injury is inflicted upon the owner, not upon the things.¹

¹ Therefore the contrary solution which Konings gives seems to us to be rejected, n. 758, 3, according to whom he is bound to nothing who, while he wishes to kill the goat of Maurus, kills the cow of the same man, which he was not seeing; he thinks this follows from the very rigor of principles; but is this not an evident sign that the principles themselves are contrary to justice, since from them a conclusion is inferred which upright men commonly reject as unjust?

485. That doubt can precede or follow the damaging.

(A) If the doubt precedes the action, namely if someone doubts whether such an action can injure the right of another or not, he must investigate the matter, with that diligence namely which the gravity of the matter demands; but if, after diligent examination, a positive and grave doubt perseveres, he must abstain from the probably harmful action; for justice forbids that damage be even probably inflicted upon another.

Thus a judge cannot pronounce sentence against someone if he seriously doubts whether this man is guilty; nor can a physician apply a remedy which he judges to be probably dangerous, when another certainly efficacious one is at hand; nor can a hunter discharge a gun at some object about which he doubts whether it is a man or a beast.¹

¹ These cases differ altogether from the case of the indirect voluntary, namely when from a cause licit in itself a twofold effect can arise: one certain, namely one's own good or that of the neighbor, and the other doubtful, namely damage to a third person: for then the action is licit, provided the good effect compensates the evil.

486. (B) If the doubt follows the action, several hypotheses can be imagined: (a) if, after diligent examination, a probable doubt remains whether the cause of damage was unjustly posited, e.g., whether someone unjustly calumniated another, - or whether in fact some damage was inflicted upon the neighbor, e.g., whether the neighbor suffered damage in his business from the calumny or not; in both cases, strictly speaking, there is no obligation of restoring, because an obligation ought not to be imposed unless it is morally certain; but in the case the injury is doubtful. - Moreover, in doubt the condition of the possessor is better.

487. (b) If the damage is certain, and it is likewise certain that a sufficient cause of the damage was posited (e.g., calumny), but it is doubted whether this damage followed from this cause or from another, more probably he who posited the cause is bound to restitution, because the damage is deservedly presumed in fact to follow from this cause, until the contrary is proved; yet probably some hold that the obligation of restitution is not to be urged, because that the effect followed from the cause ought not to be presumed, but proved.

488. (c) If damage certainly has been inflicted, but there is a twofold cause, each of itself efficacious, and it is doubted from which one the effect followed (e.g., two men at the same time discharged a gun at the same victim), the matter is controverted; much more probably each is held in solidum to restitution; for each culpably posited a cause of itself efficacious for damage, and if uncertainty arises as regards the author of the damage, this must be attributed to the damagers themselves. - Yet St. Alphonsus probably holds (n. 657) that the obligation of restitution is strictly to be imposed upon no one, because no one is bound to despoil himself on account of a doubtful obligation. In practice, restitution is earnestly to be advised, if not urged.

489. Here the principles concerning the indirect voluntary are to be applied:

(a) If the drunkenness was voluntary, and the damager, before he lost the use of reason, at least confusedly foresaw the damage which can follow from drunkenness, he is bound to restitution.

(b) But if the drunkenness was involuntary, or if he could not foresee the evil effect, he is excused from the burden of restitution in the forum of conscience; but if he is condemned by the judge to repair the damages on account of juridical fault, he must obey.

490. The second root of restitution is the unjust possession of another's thing; it is called unjust even as regards the possessor in good faith, because the obligation of restoring begins at that time when he becomes conscious of another's right, and therefore knows that another's thing can no longer be justly possessed by himself. - The possessor can be of good, bad, or doubtful faith, according as he inculpably, culpably, or with a doubtful conscience detains another's thing; these must be discussed separately, but first certain axioms, which occur more frequently in this matter, must be explained.

¹ St. Thomas, 2. 2., q. 62, a. 2-6; Soto, lib. IV, quaest. 6, a. 3-5; quaest. 7, a. 2; Sayrus, lib. X, tr. II, cap. 2-3; Lugo, disp. XVII; Billuart, diss. VIII, art. 9-11; St. Alphonsus, n. 607-625; Elbel-Bierbaum, P. VI, n. 28-91; Reuter, P. III, tr. III, cap. 2; Carriere, n. 1035-1102; Lehmk., n. 944-961; Baller. P., n. 415-439; Genicot, n. 523-534; Noldin, n. 434-449.

491. 1. The thing cries out to the owner, or toward the owner. This principle flows logically from the very right of dominion explained above (n. 74); namely a thing which legitimately pertains to someone is so connected to him that, if it has been separated from him, it tends to return to him, and thus as it were cries out to the owner. Therefore the owner, wherever he has found it, can by right and deservedly seize it; and consequently the holder, even one in good faith, must return it to the owner as soon as morally possible, unless by prescription or another just title he has made it his own.

2. The thing fructifies for the owner, that is, natural fruits pertain to the owner of the thing, just as the substance itself of the thing, as was explained above, n. 235-236; but industrial fruits, insofar and inasmuch as they proceed from the industry of another, are attributed to this person and not to the owner.

492. 3. A thing naturally perishes for the owner; namely, if a thing is naturally destroyed, without another's fault, the owner must bear the damage which follows from this; for when the thing, which was the foundation of dominion, has been removed, the right in that thing by that very fact perishes. Yet if the thing, although destroyed in itself, subsists in an equivalent, - insofar as, e.g., another accepted its price, or by using it spared his own goods, - it must equivalently be restored to the owner.

4. No one ought unjustly to become richer from another's thing; that is, no one ought to become richer from another's thing itself, or from all those things which naturally come forth from that thing, as is clear from the second axiom: the thing fructifies for the owner. But someone can become richer on the occasion of another's thing, insofar as, by using that thing, he produces something by his own industry, which is truly the fruit of his own labor, and therefore is legitimately acquired by him.

A possessor in good faith is he who, while detaining another's thing, inculpably thinks it to be his own, e.g., because he received the thing from him whom he judged to be the legitimate owner. His obligations can be weighed as regards the thing itself, - the fruits received from it, - and the expenses made for it.

493. The general principle is that the possessor in good faith is bound to restitution: 1. as often as he is conscious that he detains another's thing without a legitimate cause; 2. as often as he has become richer from another's thing.

The reason for the former is that the thing cries out to the owner; therefore as soon as the possessor knows that some thing is not his, but another's, and moreover that there is no legitimate reason for retaining it, he cannot keep it without violating the rights of another.

The reason for the latter is taken from the fact that the thing fructifies for the owner; therefore if the possessor has become richer from the thing of another, e.g., by sparing his own goods while he consumed another's goods, he cannot retain this increase for himself, but must hand it over to the owner, to whom in fact it pertains as the equivalent of the thing consumed.

494. Practical applications. For explaining the general principle more fully, a threefold hypothesis can be imagined, according as the thing was possessed by one only, - or by several who transmitted it by onerous title, - or by gratuitous title.

First hypothesis: There is only one possessor, who has not transmitted the thing to others. (A) As long as the possessor of another's thing remains in good faith, he can use it as if it were his own; and, when the time required for prescription has elapsed, he acquires dominion over it.

(B) As soon as he discovers that the thing possessed by him is another's, he is bound to restore it to the owner, or at least to warn the owner that he should remove it at his own expense. For the thing cries out to the owner; hence another cannot retain it without injustice. Moreover, no one ought unjustly to become richer from another's thing; but if the possessor were not bound to return another's thing as soon as morally possible, he would unjustly become richer from another's thing by retaining what is not his own.

Hence, even if he bought another's thing, he must restore it, and indeed without compensation, unless civil law has disposed otherwise;¹ but he has recourse against the seller, from whom he can reclaim the price paid: for the sale was null, since the seller sold a thing not his own. - He is bound to return the same thing individually, if he still has it, since the thing itself cries out to the owner, nor can the owner be compelled to sell or exchange this thing.

¹ In France, if the thing was bought at a fair, by public sale, or from a merchant selling things of the same species, the owner must refund the price to the possessor. Cf. Cod. civ., a. 2280, in Supplement., p. 61*.

(C) If another's thing has perished, or has been consumed during good faith, the possessor by natural law is bound to nothing; unless however he has become richer from it, e.g., by sparing his own goods: for then he must restore to the owner that in which he became richer. For, on the one hand, the thing perishes for the owner; and therefore the possessor in good faith, who did not become richer from it, is not bound to restitution by reason of retention, since he does not retain the thing; nor by reason of damaging, since he is not the culpable cause of damage. But if he has become richer from it, then the thing exists, if not in itself, at least in an equivalent; and therefore he is bound to render that back.

495. Second hypothesis: the thing has passed from one to another, or even to several, and indeed by onerous title, through sale. - Either there is place for eviction, or not.

(A) If there is place for eviction,¹ i.e., if the thing still exists, and the owner demands it from the last holder, either judicially or privately, and the holder has no means of defending himself from eviction, the last holder is bound to return the thing to the owner by force of the principle "the thing cries out to the owner"; but the last holder has recourse against his seller, who, by force of the contract of purchase, at least implicitly promises to compensate the buyer if there is place for eviction, as is said below. Likewise the last seller has recourse against him from whom he bought the thing, and so thereafter until one arrives at him who had received the thing by gratuitous title, or at the thief himself.

¹ Eviction is a legal act by which the buyer is disturbed from the possession of the thing bought, because it is vindicated by the true owner (below n. 762).

The same seems to be said if the last holder has spontaneously restored the thing to the owner; but if he did this without consulting the seller, in certain regions he cannot legally demand the price of the thing from the seller, because by having recourse to the seller he often could have defended himself from eviction; this is explained more fully where sale is treated.

496. (B) If there is no place for eviction, - because, namely, the thing was consumed, or perished by a fortuitous event, - the first seller is bound to refund to the owner the price of the thing, insofar as he became richer from it; but the other possessors are bound to nothing, because they were in no way made richer from another's thing.²

² If by selling more dearly than they had bought they have gained something, this proceeds from their industry, not from the thing itself; unless however the thing itself increased (because, e.g., a foal grew): then the increase is a fruit, concerning which we shall treat below.

497. Third hypothesis: the thing was transmitted from one to another by gratuitous title, or through donation. Then the first possessor, who in good faith donated another's thing, is bound to nothing, since he was not made richer from another's thing; the same must be said of intermediate possessors, who did not detain the thing; but the last possessor, who received the thing by donation, must return it to the owner, if it still exists; otherwise, he is bound to hand over an equivalent thing, insofar as he became richer; hence he is bound to nothing if he was not made richer from it.

498. Corollary. If someone in good faith bought a stolen thing, and knows that it is stolen before the time of prescription has elapsed, can he return it to the thief, in order to recover the price?

(a) If the owner has sought his thing before it is returned to the thief, the buyer is bound to restore it; for the thing cries out to the owner; but he himself has recourse against the thief.

(b) If the thing bought has not yet been handed over by the thief, the buyer can rescind the contract and leave the thing to the thief.

(c) If the owner has not yet sought his thing, it is controverted among theologians: some say that the thing must be returned to the owner, but not to the thief, because the thing cries out to the owner; others assert, with sufficient probability, that it can be returned to the thief, because the contract, on account of fraud or error, is rescindable, and moreover no one is bound to harm himself in order to benefit another. Hence in practice he who has followed this opinion cannot be compelled to restitution; but from charity the buyer is bound to warn the owner, as often as this can be done without inconvenience, so that the owner may be able to recover his thing from the thief.

(d) But if the thief does not wish to rescind the contract and return the price, the buyer cannot consume the thing or sell it to another, but is bound to restore it to the owner, even if he is going to receive no compensation from him, because the thing cries out to the owner; yet he has recourse against the thief.

499. (A) By natural law: (a) Industrial fruits, which namely are acquired on the occasion of the thing by the possessor's own labor, can be retained by the possessor in good faith: for each one legitimately makes his own the fruits of his own labor.

Hence he who, in good faith by trading with another's money, acquired great riches, is not bound to restore these to the owner, but only the usual increase of the money; likewise he who painted a picture of great price with another's brush and another's colors is not bound to restore it to the owner of the brush, but only to give compensation for the use of another's material.

500. (b) But natural fruits must be restored to the owner, provided they exist in themselves or in an equivalent, and have not been prescribed, after however the expenses which were necessary for collecting or preserving them have been deducted; for the thing fructifies for the owner.

The same must be said of civil fruits, which arise from the use of the thing, such as income from the renting of a house or from a loan, etc. Some, especially among the older theologians, except the increase from a loan, because it cannot be called a natural fruit; nevertheless this is commonly rejected today: for, in the present state of affairs, legal increase is deservedly counted among natural fruits, since it is taken not from the industry of the possessor, but from the thing itself.

It was said: provided they exist... for if they have been consumed without the possessor having become richer from them, by natural law he is not bound to pay the price, as was explained above; - after the expenses have been deducted, for he who enjoys the advantages must sustain the burdens.

501. (c) As regards mixed fruits, which arise partly from industry and partly from the thing, they must be divided between the owner and the possessor according to the estimation of a prudent and honorable man; for in that part in which they are natural, they belong to the owner; and in that part in which they are industrial, to the possessor. Thus, e.g., as regards crops, the possessor can collect them, after the usual price for the lease of the fields has been paid.

502. Corollary. If someone in good faith bought a stolen thing at too cheap a price and sold the same more dearly, an increase of this kind can be regarded as an industrial fruit, if it can be attributed to the labor and skill of the possessor; as a natural fruit, if it proceeds from the thing itself, e.g., if wheat becomes dearer because of scarcity; as a mixed fruit, if it arises partly from industry, partly from the thing itself.

(B) By French civil law (which also prevails in several other regions), a possessor in good faith makes his own all fruits already received.¹ - This provision more probably has force in conscience: for the right belongs to the civil authority of transferring dominion when a reason of the public good is present; and this is verified in the case, since the law tends to avoid lawsuits and lest the possessor in good faith suffer damage from an unexpected restitution.

¹ Cod. civ., art. 546-549, 585-586, in Supplemento, p. 11* and 51*; cf. Planiol, I, n. 909-915.

503. Expenses which are made for the preservation or increase of a thing are usufructuary or extraordinary. - The former are those which are necessary for receiving fruits; but where the possessor does not keep the fruits, e.g., in the United States of America, he has the right of obtaining compensation for expenses of this kind: for the owner cannot legitimately receive the fruits unless the expenses have been deducted.

Extraordinary expenses are of three kinds: necessary, without which the thing would have perished or would have become worse (e.g., those which are made lest rain invade a house); useful, which increase the value of the thing, as are plantations, buildings, etc.; merely voluptuary, which are made for the sake of ornament, e.g., by adorning walls with paintings, without the value of the thing being increased.

504. (A) By natural law, the owner must compensate necessary expenses, indeed also useful ones, at least insofar as they increase the saleable value of the thing; otherwise he becomes richer from another's thing, namely from the money which the possessor paid for preserving or increasing the value of the thing.

As regards voluptuary expenses, which do not increase the price of the thing, strictly speaking the owner is not bound to refund them to the possessor; but if ornaments of this kind can be removed without detriment to the thing, the possessor has the right of taking them away with him.

(B) But civil law concerning this matter is diverse among various Nations. In France, the owner must refund to the possessor, even one in bad faith, necessary or useful expenses;¹ concerning voluptuary expenses, it is established that they must be compensated by the seller in bad faith.²

¹ Cod. civ., art. 1381; cf. art. 555, in Supplement., p. 52*.

² Cod. civ., a. 1635, in Supplement., p. 148*.

505. A possessor in bad faith is he who culpably detains another's thing. He is bound to restitution by a twofold title, insofar as he is the unjust possessor of another's thing, and insofar as he is a damager; wherefore he must not only restore the thing itself, but also compensate all damages which followed from the unjust detention of the thing.

506. (A) As an unjust possessor of another's thing, he must as soon as morally possible restore to the owner the thing itself, if he has it, or an equivalent thing; otherwise he would be richer from another's thing.

(B) As an unjust damager, he is bound to furnish the owner unharmed, by repairing all damages which at least confusedly he foresaw as going to follow from the unjust retention.

Hence he must compensate a thing consumed, even if he did not become richer from it; and if the thing perished, even by a fortuitous event, he is bound to restore its price, at least generally, namely as often as it would not have perished in the possession of the owner himself. Likewise if the thing became worse, while it would have remained intact with the owner, he must compensate that damage. For in all these cases he truly is the cause why the owner suffered these damages.

507. Corollary. But what if the thing would have perished in the possession of the owner himself? - A distinction must be made: (a) if it would have perished morally at the same time and by the same event as it perished with the thief (e.g., by the same fire or shipwreck, or from an intrinsic defect of the thing), more probably the thief is not bound by natural law to restitution, because he is not the efficacious cause of the damage. The same probably can be said if the thing would have perished at the same time, although not by the same event (e.g., it perished by fire at the thief's place, while it would have perished by water on the same day at the owner's): for the reason is the same.

(b) But if the thing would not have perished morally at the same time, the thief is bound to restitution: for then the thing, for at least some time, was unjustly retained by the thief; e.g., if wine rescued from a fire is drunk, its price must be refunded. - Yet I said at the same moral time, because if it were certainly foreseen that the thing was soon going to perish, there would be no strict obligation of restoring: for a thing soon and certainly going to perish is scarcely of any value.

By civil law, prevailing in France¹ and many other Nations, a possessor in bad faith is bound to restitution, in whatever way the thing perished in his hands. Yet this provision, insofar as it differs from natural law, can be regarded as penal, and therefore does not oblige before, but only after, the sentence of the judge.

¹ Cod. civ., art. 1302, in Supplement., p. 89*.

508. By natural law, and also by civil law prevailing among most Nations, he is bound to restore: (a) all fruits received from another's thing, even if the owner would not have received them, because the thing fructifies for the owner; even consumed fruits, although he has not become richer from them, because he must repair all damages unjustly inflicted; (b) all fruits which the owner would legitimately have received, although the possessor himself did not receive them: e.g., if the owner, as endowed with very great skill, is accustomed to make twenty percent from business, and by theft was impeded from making this gain, the thief is bound to pay this; otherwise he does not compensate the damages unjustly inflicted; (c) fruits received by those to whom the thing passed, if these have not restored; for with them he is bound in solidum to repair all damages following from the unjust occupation of the thing.

Yet Lugo rightly notes here:² "As often as the question concerns restitution of profit ceasing, or of damage arising, the general rule handed down by all is that restitution must be made not in full, but according to the greater or lesser certainty of such profit, or of avoiding such damage, namely as much as that uncertain hope could be worth, with attention to all those things by which the effect could have been impeded."

² Lugo, disp. XVIII, n. 133.

509. (d) But industrial fruits, received not from the thing, but on the occasion of it, pertain to the possessor; hence, if a thief or depositary has carried on business with money taken away or received, he must restore the money and legal increase, or the profit which the owner would have made, but not the increase owed to his own labor.

510. Corollary. If a thing, during the time of unjust detention, had various values, is the unjust possessor bound to restore the highest value? - The principle is that the highest value must be restored: (a) as often as the owner is unjustly deprived of that increase, e.g., because, since he himself is vigilant, he would have sold the thing at the time of the highest price, - or because he was compelled to buy an equivalent thing at a time when it was sold more dearly; (b) as often as the unjust possessor would otherwise become richer, because, e.g., the increase of the thing is owed to him, as if a calf grew: for the thing grows for the owner.

But in practice it is often difficult to determine whether and when the aforesaid conditions are verified; if the matter remains doubtful, only compensation of the value which the thing had at the time of the theft is to be urged.

511. By natural law, a possessor in bad faith, while he restores the thing and the fruits, can deduct the expenses which he made, both necessary and useful, which truly increased the value of the thing; for otherwise the owner would become richer from another's thing. But he cannot deduct merely voluptuary expenses; yet ornaments which, the substance of the thing being preserved, can be removed, he can retain for himself.¹

¹ Thus also from French civil law; cf. Cod. civ., a. 1381; but not from English or American law, according to which the owner is not bound to refund expenses made by a possessor in bad faith.

512. A possessor in doubtful faith is he who from a grave and probable reason doubts whether the thing which he detains is his own or another's; hence a merely negative or altogether light reason does not suffice for this. - When someone began to possess a thing in good faith, and afterward a doubt arose, the doubtful faith is called supervening; if the doubt preceded the very occupation, it is called antecedent doubtful faith.

513. 1. In the case of supervening doubtful faith, these are the duties of the possessor:

(A) Once doubt has arisen, he must diligently investigate the truth, and indeed with that diligence which corresponds to the value of the thing and the gravity of the doubt; otherwise he would deservedly be held as a possessor in bad faith. Meanwhile he cannot sell or consume the thing, unless he is prepared to render an equivalent to the owner.

(B) After diligent inquiry has been made: (a) if it is morally certain that the thing is another's, he must restore the thing and the fruits, as was said above concerning the possessor in good faith; (b) if the doubt perseveres, more probably he can retain the thing, because in doubt the condition of the possessor is better. Hence he can consume the thing or use it, provided he is prepared to render the thing or its price to the owner, if he appears before the time of prescription has elapsed; indeed he can sell the thing, provided he warns the buyer about the doubt, lest the buyer be deceived. Notwithstanding the doubt, he can prescribe at the opportune time.

514. 2. In the case of antecedent doubtful faith, the possessor likewise must diligently investigate the matter; but if the doubt remains, a threefold hypothesis can be imagined: -

(a) If someone has taken a thing away from a possessor, doubting whether he has a right to do this (e.g., probably judging that he has a right to part of an inheritance, he appropriated this to himself without recourse to the judge), he is equated with a possessor in bad faith; for in doubt the condition of the possessor is better.

(b) But he who acquired a thing by purchase, donation, or another legitimate title, doubting whether the seller or donor is truly the owner (e.g., he buys jewels at so low a price that he can deservedly suspect the thing to be stolen), more probably must restore, according to the proportional part of the doubt, to the owner, if he can be found, or to a pious cause; for he cannot retain the whole, because he began possession without good faith; nor however is he bound to render the whole, because it is not certain that the thing is another's. - But if he bought or accepted the thing with the intention of returning it to the owner as soon as the latter can be found, he is equated with a possessor in good faith, and can detain the thing until the owner appears.

(c) If someone occupies a thing occupied here and now by no one, doubting whether this is a thing of no one or not, whether it was lost or abandoned, he cannot retain it except conditionally, that is, with the intention of making inquiry and returning it to the owner, if the latter is found, as was said concerning lost things.

515. Not only those who principally inflict damage are bound to restitution, but also unjust cooperators, namely all those who truly have influence with him in causing the damage.

¹ St. Thomas, 2. 2., q. 62, a. 7; Soto, lib. IV, q. 7, a. 3; Sayrus, lib. X, tr. II, cap. 4; Lugo, disp. XIX; Billuart, diss. VIII, art. 13; St. Alphonsus, n. 557-581; Carriere, n. 1162-1233; Ball. P., n. 354-396; Lehmk., n. 1000-1018; Noldin, n. 467-489.

The general principle is that cooperators are bound to the reparation of all and only the damage of which they were the unjust, efficacious, and culpable cause, as is clear from what was said above, n. 477. - We shall inquire two things: 1. which cooperators are bound to restitution; 2. and how?

516. Nine are commonly enumerated, comprehended in these verses:

Command, counsel, consent, flatterer, refuge,

Participant, silent, not opposing, not revealing.

Of these the first six are called positive, because they concur by action in inflicting damage; the latter three are called negative, because they concur in it by omission of an action owed from justice. - Concerning each we shall explain whether and by what reason they are bound to restitution.²

² St. Thomas (l. c.) briefly contracts this as follows: "It must however be known that five of the preceding always oblige to restitution: first, command, because he who commands is the principal mover, whence he is principally bound to restore; second, consent, in that, namely, without which robbery cannot be done; third, refuge, when namely someone is a receiver of robbers and furnishes patronage to them; fourth, participation, when namely someone participates in the crime of robbery and in the booty; fifth, he is bound who does not oppose, when he is bound to oppose... But in the other enumerated cases someone is not always obliged to restore: for counsel, or flattery, or something of this kind, is not always the efficacious cause of the ruin. Hence only then is the counselor, or flatterer, that is, adulator, bound to restitution, when it can probably be estimated that the unjust taking followed from causes of this kind."

517. (A) Notion. In general, one mandating is said to be he who entrusts to another a business to be carried out in his own name; but in our matter he is one who induces another to inflict damage upon the neighbor in his own name; if the one mandating is a superior, who has the power to command, he is called one commanding. - And this indeed can be done in a twofold way: explicitly, namely by command, threats, prayers, hope of reward, or another act by which another is positively moved to harm the neighbor; implicitly, if by deeds or words he signifies to a subject that damage inflicted on another will be pleasing to himself; e.g., when Henry II, king of England, was often complaining that he had no peace with Thomas, Bishop of Canterbury, so that the courtiers understood that they would do something pleasing to the king if they took Thomas out of the midst.¹ - But he is not judged one mandating who only ratifies damage already previously inflicted in his name.

¹ Breviarium Rom., Winter Part, On the feast of St. Thomas, lessons 5-6.

518. (B) Obligations of the one mandating toward the one damaged.

(a) The one mandating is bound to repair all damages which another, by force of the mandate, inflicted upon the neighbor; and all those things which are morally connected with the execution of the mandate, namely those which at least confusedly were foreseen, after all circumstances have been carefully weighed. For he who mandates that some damage be done in his name perpetrates it through another; but he who acts through another is judged to act through himself, and therefore is bound to repair this damage.

I said: by force of the mandate; hence if the mandatary transgressed the limits of the mandate, so that this could not have been foreseen, the one mandating is not bound to repair these further damages, nor therefore is he bound concerning damages which the mandatary inflicted from an error which could easily have been avoided.

(b) If the one mandating revoked the mandate, and this revocation became known to the mandatary before the damage was inflicted, he is not bound to restitution, provided he is only one mandating and not one counseling (below, n. 523); because when such a revocation is known, the mandate is now extinguished, and if the mandatary inflicts damage, it is perpetrated in his own name. - But, if the revocation did not become known, the damage truly follows from the mandate.

519. (C) Obligations of the one mandating toward the mandatary. As regards damages which the mandatary himself suffers, the one mandating is bound to repair them if by force, fear, fraud, or another unjust mode he compelled the mandatary to do this, or also if he expressly obligated himself to furnish such indemnity; in the former case he truly is the cause of this damage; in the latter he is bound to reparation by force of contract; - otherwise, the one mandating is not bound: for he who spontaneously, or for an agreed reward, undertakes some business to be carried out, assumes upon himself the dangers of the execution.

520. (A) Notion. One counseling is he who, by showing motive or means, or by persuasion, induces another to inflict damage upon the neighbor; he is distinguished from one mandating, because he does not move another to act in his own name.

Hence counsel can be given especially in three ways: (a) by proposing motives from which it may appear that the thing is licit, or honorable, or useful, or even necessary; (b) by indicating means by which damage can be inflicted, by which, e.g., poison can be made or administered without danger, - or such a house invaded; (c) by using persuasion, e.g., by exhortation, prayers, blandishments, promises, inducing another to harm the neighbor. - Under another respect, especially a twofold counsel can be given: doctrinal, by which it is declared that such an action is evil or good, valid or invalid, etc.; impulsive, by which, abstracting from the question of validity or liceity, another is moved to inflicting damage.

521. (B) Obligations of the one counseling in the case of impulsive counsel. The general principle is that the one counseling is bound to restitution of that damage which he foresaw as going to follow efficaciously from his wicked counsel. It is clear from what has already been said; for then he is the unjust, efficacious, and culpable cause of that damage. - If two at the same time have furnished unjust counsel to the same person, each is bound to restitution, because each had efficacious influence in the damage.

522. Applications. (a) If unjust counsel is given to one who is already truly determined to inflict evil, there is no obligation of restoring; because in this case the counsel was not the efficacious cause of the damage.

(b) If another is already determined to inflict damage, and the one counseling persuaded him only as to the mode of doing the thing, or other circumstances of time, place, etc., the one counseling is not bound to restitution, unless accidentally by such counsel he increased the damage, or was the cause of the whole damage; e.g., if by persuading as to the mode he persuaded him to greater damage, he is bound concerning this excess; if he persuaded that the damage should be inflicted sooner, so that the damage would have been impeded if longer delay had been awaited, he is bound to repair the whole damage.

(c) He who counsels a lesser evil to one who is already determined to inflict a greater is not bound to restitution, if the lesser damage is inflicted upon the same person; for in this case he is not the efficacious cause of any damage. But if he counsels that damage be inflicted upon another determinate person, according to the common opinion he must restore, since he truly is the cause of the lesser damage inflicted upon such a determinate person. Yet some say that, even in this case, no place is given to restitution, because, they say, counsel of this kind is in conformity with charity; moreover he who suffers the lesser damage is not reasonably unwilling toward the one counseling, but only toward the damager. - This argument seems weak; for, if the counsel had not been given, damage would not have been inflicted upon this determinate person; but this person is not bound to yield his own right in order to avoid another's greater damage. Hence in practice the former opinion seems to us to be followed.

523. Corollary. He who revokes counsel given before the damage is inflicted: (a) is not bound to restitution, if the counsel was simple, or bare, namely founded upon no motive, because by revocation the influence of the counsel is removed; (b) but more probably he is bound when the counsel was supported by reasons, if by contrary motives he could not change the mind of the executor; for the reasons previously alleged still subsist, and efficaciously act upon the mind of the other. This is especially true and commonly admitted if the one counseling made known to the damager the mode of perpetrating the damage, without knowledge of which the injury could not have been committed, e.g., by teaching the secret mode of opening doors; or furnished means of inflicting the damage.

Nevertheless some probably hold that the one counseling is not bound to restitution, even when he alleged motives, provided in the retraction he brought forward other motives equally efficacious; for if the executor does not wish to yield, the damage must be attributed to his malice, not to the counsel of another. - Besides, according to all, if the one counseling could not turn the executor away from the unjust purpose, from justice he is bound to warn the owner that he guard himself.

524. (C) Obligations of the one counseling in the case of doctrinal counsel. (a) He who by force of his office, as a confessor, advocate, physician, gave harmful counsel, whether from vincible ignorance or from evil intention, is bound to compensate the damages following from it, whether to the one seeking counsel or to a third party; for he who seeks counsel from one who is in office has a strict right not to be deceived by the culpable lack of skill or malice of the one counseling; and therefore the one counseling in this case directly violates the right of him who seeks counsel, and indirectly of those who contract with him.

525. (b) But he who gives counsel, not from office, is generally excused from restitution for the damage which the one seeking counsel suffered, unless however he deceitfully pretended skill; for, the case of fraud being excluded, he who seeks such counsel from an unskilled person and follows it spontaneously exposes himself to the danger of damage, and ought to ascribe to himself the damage which he suffered.

Yet one furnishing wicked counsel is bound to repair damage inflicted upon an innocent third party, provided he foresaw this at least confusedly.

(c) He who gave harmful counsel from ignorance or negligence, without grave fault, certainly from charity and more probably from justice is bound to retract it, provided he can do this without grave inconvenience; if he neglected this, he is bound to restitution. This is clear from what was said above, n. 480.

526. The flatterer, or adulator, must be equated with one counseling; for he is one who by praising or blaming another incites him to inflict damage upon a third party; and therefore he is bound to restitution in the same way and under the same conditions as the one counseling. - But if he approves damage already inflicted, of itself he is not bound to reparation; otherwise, however, if this approval induces another to new injuries, or efficaciously impedes him from repairing an injury.

527. He is called one consenting who by external approval, by vote, or by sentence truly cooperates in damage.¹ But a vote can be twofold: consultative and decretory; here the question concerns a decretory vote, which has the force of precept or law: the former is referred to counsel. - Thus, senators, deputies, and others who by their vote establish an unjust law; judges or jurors who pronounce an unjust sentence.

¹ Therefore here the question is not about any consent whatever furnished to an unjust thing, but about that which is the efficacious cause of the damage.

Now those consenting are bound to restitution as often as they have efficaciously and culpably violated the strict right of another. The reason is that, by making an unjust law or sentence, they concur in the damage inflicted in almost the same way as those mandating.

528. But the question is when those consenting can be judged the efficacious cause of the damage. Now:

(A) If all at the same time cast an unjust vote, whether by secret ballots, or by rising, etc., all equally concur in the damage, and all are bound to restitution.

(B) The same must be said of those who cast unjust votes from mutual conspiracy, because by a common vote they concur in the damage.

(C) If votes are given successively and by living voice: (a) certainly the first who emit votes are bound to restitution until the number necessary for establishing the law is completed, even if they foresee that others who will consent will not be lacking; for they truly have influence in the law and therefore in the damage; - (b) as regards those who, after the sufficient number has been completed, give votes, a distinction must be made: if the votes are revocable, they are bound to restitution, because the damage is not consummated, and therefore even the last truly cooperate in it; but if the votes are irrevocable, the damage is now complete, and therefore the last probably and speculatively are not bound to restitution, because they are not the efficacious cause of the damage. But in practice, at least for the most part, all the suffrages have influence upon the effect by way of one thing, insofar as they add strength to the executors of the law and render its revocation more difficult; wherefore generally they are bound to reparation.

(D) If before the law or sentence is made, the unjust vote is efficaciously revoked, no place is given to restitution, because now no efficacious cooperation is furnished.

(E) But those who give a vote for a thing less just, not intrinsically evil, when this is the only means of averting a greater evil, do not sin, nor therefore are they bound to restitution.¹

¹ Lehmk., n. 800; Genicot, n. 540; Noldin, n. 481.

529. Corollaries. (A) In modern societies, in which matters of the greatest moment are determined by the vote of senators and deputies, the duty is incumbent upon all these of emitting votes at the opportune time, so that they may promote the good of the commonwealth and avert the evils which wicked citizens are contriving: therefore not only do those sin gravely who cast a vote for an unjust law, but also those who, without just cause, from grave negligence or fear of displeasing the Government, abstain from giving votes, or are absent at the time of voting, when they can foresee that by silence of this kind grave damage is threatening the public good or some body of citizens; indeed they are bound to restitution, as often as by this way of acting they can be called the efficacious cause of some injustice.

530. (B) The same duty is likewise incumbent upon those electors who choose senators or deputies, as often as it is foreseen that unjust laws are going to be proposed and established; and this indeed today for the most part ought to be foreseen; for there are many who are attempting utterly to overthrow the religious and social order; and unless upright men perform their duty, form political associations, and at the opportune time elect honorable deputies, soon injustice will prevail everywhere. Therefore citizens who enjoy the right of suffrage, and do not use it because of negligence or vain fear, today of themselves sin gravely, because negatively indeed, but efficaciously, they concur in establishing unjust laws.¹ Not a few are subjectively excused from grave sin, because they do not think about the consequences of their negligence; but upon priests, and laymen who understand the matter better, the duty is incumbent of instructing them, prudently indeed, but unceasingly, so that good citizens, with forces united and federated, may be able to break the audacity and injustice of wicked men.

¹ Concerning this see Ami du Clerge, Le peche electoral, t. XXV, 1903, p. 979, and t. XXVI, 1904, p. 2.

531. The receiver, or one furnishing refuge, is he who furnishes refuge or security to an evildoer, as such, or receives and keeps the things taken away by him. - I said: as such, because if he receives him not as an evildoer, but as a blood-relative, or friend, or by force of office (e.g., if the question concerns an innkeeper), and does not intend to furnish him aid, he is not properly a receiver.

Now the receiver is bound to restitution insofar as he makes the evildoer more secure in unjustly inflicting damage upon others, or is the cause why goods unjustly taken away are not restored.

532. Hence the following are obliged to restitution: (a) merchants and innkeepers who accept from children of families, servants, etc., money or things secretly taken away from parents or masters, because thus they favor thefts of this kind; (b) advocates who in a civil matter patronize manifestly unjust causes, or, in a criminal matter, an unjust accuser; but not those who, in a criminal trial, defend evildoers when these ought from the law itself to have a defender; (c) those who furnish help to a thief or another evildoer, by watching and warning if perhaps persons occur who are going to denounce or impede the crime; (d) tavern-keepers who receive thieves and conceal them lest they be seized.

533. Notion. A participant can be twofold: in the booty and in the unjust action. If the former, he must restore that which he unjustly received, as will be said below concerning the possessor of another's thing; here we treat only of the participant in an unjust action.

Now cooperation of this kind is called formal, or intentional, if the one cooperating concurs both in the action and in the unjust intention; material, if he concurs only in the wicked action. Thus he who hands over the keys of a house to a thief so that the latter may more easily steal cooperates formally; but materially, if he does this only for this end, that he may avoid his own damage, death or a wound.

534. Principles. (A) He who formally cooperates with another in an unjust action, and indeed efficaciously, is bound to restitution: for then he is the unjust, efficacious, and culpable cause of the damage inflicted, since he intends to do injury and in fact does it.

The specific malice of cooperation is taken from the nature of the sin to which concurrence is furnished, and therefore in confession this sin must be declared.

535. (B) He who materially cooperates in a damaging action is excused from sin and from the obligation of restitution, provided the act is not intrinsically evil, and moreover there is a proportionate cause for cooperating. This is clear from what was said where cooperation in general was treated.

Hence it is not licit to participate immediately in the killing of an innocent man, since this action is intrinsically evil; - nor in his mutilation, except for preserving his life or health, from what was said above, n. 308.

It is more probably licit materially and immediately to cooperate in theft in order to avoid an evil of a higher order, e.g., death; for then the owner, if he were to oppose, would not be reasonably unwilling. - Indeed this is licit from a grave cause, if the one cooperating can and wishes to repair the damage going to follow from his cooperation, - or if the damage is light, - or if equal damage would be inflicted even if cooperation were omitted: for in these cases he is not judged reasonably unwilling.

536. (A) Notion. There are three negative cooperators: the silent, the one not opposing, the one not revealing. (a) The silent person is he who, before damage is inflicted, does not impede it, at least by warning, when he can and ought; e.g., the guard of a house who, when the thief arrives, does not cry out. (b) The one not opposing is he who, while evil is being inflicted, does not impede it, when he is bound to this, e.g., soldiers who do not prohibit an unjust aggressor from killing an innocent man. (c) The one not revealing is he who, after damage has been inflicted, does not denounce the damager, when he can and ought to furnish this; e.g., customs guards who say nothing about those who defraud taxes.

537. (B) General principle: Negative cooperators must restore when these two things concur: namely when 1. from justice (i.e., from office or from pact) they are bound to impede the damage; and 2. they can impede it without a graver inconvenience.

For, if they are bound not from justice, but only from charity or another virtue, they indeed sin against these virtues, but not against justice, and therefore they are not bound to restitution. - Now from justice those must impede damage who obligated themselves to this by some pact, or contract, whether explicit or implicit, or who undertook a function, or office, by force of which they are bound to prohibit damage: for there is then a quasi-contract.

Moreover all these are not judged to obligate themselves to impeding damage with the greatest inconvenience to themselves, e.g., with danger to life, unless the public good is in question, which sometimes demands the sacrifice of one's own life.

538. (C) Principal applications: - (a) A confessor who, even from grave negligence, neglects to warn the penitent about making restitution is not bound to restitution, unless his silence is equivalent to positive counsel, e.g., if the penitent asked the confessor to warn him concerning the duty of restoring; for the confessor, by force of his function, is indeed bound to provide for the spiritual good of the penitent, but not to guard against the temporal damage of others. - But if he knowingly gave a false response, he is bound to restitution as one counseling from office.¹

¹ Concerning this the matter is treated more fully in the Treatise on Penance, n. 415-416.

539. (b) Parents, or superiors, who suffer damage to be inflicted upon the neighbor by children or subjects, must restore: when by their silence they moved the children or subjects to inflicting damage; or when the children are not yet masters of themselves. - Otherwise, by natural law, they are not bound to restitution; for from office they indeed have care of their own, but are not bound to protect the goods of others. But civil law proceeds further in many regions at least.

540. (c) The owner is bound to repair damage inflicted by animals of which he has ownership, or use, or custody, when it was caused by his grave negligence; for upon him is incumbent the care of watching lest they harm others.

(d) Servants who are hired as guards of things, e.g., guards of houses, vineyards, and forests, are bound to repair damage inflicted upon those things which have been committed to their care; for by contract they obligated themselves to averting this damage. - As regards servants who did not explicitly undertake such a burden, it is controverted whether, by not impeding damages inflicted by strangers, they are bound to restitution; many indeed affirm, because, by entering the household, they are judged implicitly to undertake the obligation of defending domestic goods against strangers;¹ yet not a few authors, especially modern ones, probably deny this, because, according to our customs, servants obligate themselves in justice to nothing except faithfully carrying out the special function committed to them. - In practice, attention must be paid to the usage and customs of places, and also to the psychological dispositions of servants; nevertheless, according to all, from charity they are bound to impede this damage.

¹ It is said against strangers; for unless from special office they preside over the whole house, they are not judged to obligate themselves to protecting the goods of the master against other servants: for this would be too odious.

(e) Customs guards who from grave negligence do not collect taxes are bound to restitution, because by force of their function they must collect these at the opportune time, and denounce those defrauding them, unless the question concerns things of lesser moment, for which tribute is not usually rigorously exacted.

541. (f) On which occasion it is asked whether he is bound to restitution who received money from a thief in order not to denounce the guilty person. - If the question concerns him who is bound from office to denounce, he must restore to the injured owner, because he truly is an unjust cooperator; - the same must be said if the money accepted is stolen, because then he is a receiver; - outside these cases, it is controverted: some deny with Lugo,² because then charity indeed is injured, but not justice; others affirm,³ because to receive money and be silent in this case is nothing other than to furnish help and security to the thief. We embrace this latter opinion as more probable, consonant with natural equity and the public good. But restitution must be made not to the thief, but to the injured owner or to the magistrates.

² Lugo, disp. XIX, n. 102; Genicot, n. 547.

³ Crolly, t. III, n. 703.

542. Cooperators are often bound to restitution in solidum, insofar as the obligation is incumbent upon individual cooperators of repairing the whole damage which was inflicted by several. This obligation is absolute, if restitution must be made without recourse against the other accomplices; conditional, if one has a right of having recourse against the others.

543. (A) Principle: Individual cooperators are bound to restitution in solidum as often as they had influence upon the whole damage, so that the whole can morally be attributed to individuals: absolutely, if they are a principal cause; conditionally, if they are a secondary cause.

For each one is bound to repair the whole damage of which he was the unjust, efficacious, and culpable cause; but such is the case with those of whom we are treating, as is clear. - The whole difficulty is in defining who have influence upon the whole damage. - These are:

544. (a) Cooperators who act by a conspiracy properly so called, namely when individuals efficaciously impel the others to inflicting the whole damage by persuasion, counsels, etc.; e.g., robbers who enter upon a plan of plundering a house and mutually incite themselves to doing this. - But it is doubted whether the same must be said of those who by simultaneous action, but without mutual persuasion, inflict some damage in one and the same thing, e.g., burn the same house or sink a ship, when otherwise the cooperation of individuals is not necessary; many more probably affirm,¹ because morally the whole effect proceeds from individuals; yet not a few probably deny,² because individuals concur only partially in the damage, and therefore are bound only to repairing the part of the damage which they caused.

¹ Salmantic., de Restit., cap. 1, n. 151; Soto, Bonacina, etc.

² Lugo, disp. XIX, n. 83; Sporer-Bierb., tr. IV, n. 351; St. Alphonsus, n. 579.

(b) Cooperators each of whom was a necessary cause for inflicting the whole damage; e.g., jurors who in England or the United States would condemn an innocent man, since the vote of each is necessary for obtaining the condemnation; two thieves unjustly carrying away another's thing, which one could not have carried away.

545. (c) Cooperators each of whom was a sufficient cause of the whole damage, e.g., two men at the same time discharging a gun at an innocent man, so that each inflicts a lethal wound; or two giving wicked counsel, when either one would have been sufficient for moving the agent to the damaging action.

(d) A damager who is the principal cause of the whole damage, as one mandating, or the thief who seeks other associates for carrying away a stolen thing.

546. Hence he who joins himself to others already determined to plunder a house, but so that his action is not necessary, is bound only to repairing the part of the damage which he himself inflicted; he who sets fire to buildings which others have already efficaciously set on fire is bound only to compensating the part of the damage which he himself caused; a soldier who in an unjust war inflicted damages with the rest of the army is bound only to repairing the part of the damage of which he himself was the author.

547. (B) On the order to be preserved among cooperators who are obliged in solidum. A distinction must be made between those who caused the damage in the same grade and those who caused it in a different grade.

1. If cooperators inflicted damage in the same grade and manner, e.g., if all were mandators, or counselors, having influence upon the agent in the same manner, individuals must restore equally; i.e., each is bound to his own part, and if one or another does not restore, the others must proportionately restore this part, with recourse preserved against him who paid nothing.

548. 2. If cooperators concurred in the damage in a different grade, they are bound in this order: (a) he who detains another's thing; (b) the one mandating; (c) those executing; (d) the other positive causes; (e) finally the negative causes; namely: -

(a) He who detains the thing in itself or in an equivalent, or unjustly consumed it; for the thing cries out to the owner, if it still exists; and, if it does not exist, he who before the others had profit from another's thing ought first to feel the burden of restitution; (b) the one mandating, who is the principal cause in relation to those executing; (c) those executing, because, after the one mandating, they had the principal parts; and if among them one was principal, because he himself gave the mandate to others, he is bound before the others; (d) the other positive causes, which are bound equally, provided they acted in almost equal manner and independently; (e) in the last place the negative causes, among whom that one will be bound first who was held by a stricter obligation of averting the damage.

549. (C) Corollaries. (a) If the principal cause has restored or obtained condonation from the owner, the secondary causes are bound to nothing. But if the owner has condoned one of the secondary causes, the principal cause is not thereby freed.

(b) If one of the secondary causes has restored, the principal cause is bound to restore to him.

And so, if the holder of another's thing has restored, the other cooperators are bound to nothing. - If the one mandating has restored, the holder must make restitution to him, and the rest are bound to nothing. - If the principal executor has restored, first the holder, and, in his absence, the one mandating, must furnish compensation to the principal executor. - If one of the positive causes has restored, first the holder, afterward the one mandating, third the principal executor, must restore the whole to him. - But if these refuse, the other equal causes must pay their own part to him.

(c) If one of the negative causes has restored, the holder, and in his absence the one mandating, afterward the executor, and at last the other positive cooperators must restore the whole to him; but if these are lacking, the negative causes are bound to pay their own part to him.

550. Things to be noted for practice. (a) If one of the secondary cooperators doubts, after inquiry has been made, whether the principal author has restored, he is not to be compelled to restitution, since the obligation of restoring cannot be imposed unless it is morally certain. - But if he doubts whether cooperators of the same grade have restored, it suffices that he restore his own part, for the same reason.

(b) Often it is expedient not to compel cooperators to restore the whole damage, even if they are held in solidum. For St. Alphonsus rightly says (n. 579): "Yet it must be noted that the uneducated, although they are held in solidum, rarely is it expedient to oblige them to the whole; since these persons with difficulty persuade themselves that they are held to restoring the part taken away by associates. Indeed it can sufficiently be presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them; since otherwise it is greatly to be feared that they will restore nothing, if they are obliged to the whole." Hence often the confessor will exhort the unjust cooperator to restore what he owes, according to the dictate of his conscience.

551. Once the obligation of reparation has been posited, it remains to inquire concerning the mode by which restitution ought to be made. We shall speak: 1. of the circumstances of restitution in general; 2. of restitution as regards certain goods, concerning which a special difficulty occurs.

We shall weigh: 1. to whom; 2. in what place; 3. at what time; 4. in what manner restitution must be made.

¹ St. Thomas, 2. 2., q. 60, a. 5; Sayrus, lib. X, tr. V, cap. 9; Lugo, disp. XX; Lessius, lib. II, cap. 15; Billuart, diss. VIII, art. 14-19; St. Alphonsus, n. 676-695; Carriere, n. 1234-1266; Ball. P., n. 499-526; Noldin, n. 490-503.

552. General principle. Restitution is to be made to him whose rights have been injured, and, when he has died, to his heirs or those having his cause. - But, in order to elucidate the matter more, a threefold hypothesis can be imagined, according as the injured person is certainly known, - or uncertain, - or altogether unknown.

1. If the injured person is certainly known, restitution must be made to him who legitimately possessed the thing, as often as this can be done without great inconvenience; for the thing cries out to the owner, that is, not to him who has only naked ownership, but to the legitimate possessor. Thus if a thing was taken away from a depositary or lessee, it must be restored to him, and not to the naked proprietor, because the injury was done to him. - Yet, if a grave reason is present, restitution can be made to another; e.g., a thing stolen from a child of the family can be returned to his parents, if it is feared that it will be dissipated by him.

553. Corollaries. (a) If the injured person has died, restitution must be made to the heirs or to those having his cause.¹ - If the owner was compelled to make a cession of goods, restitution must be made not to him, but to the administrator of the goods, unless the owner is in grave necessity and has the right of retaining what is required for decent support, as will be said below where Contracts are treated.

¹ Hence restitution cannot be made to the poor when legitimate heirs are present; nor is it licit to spend money to be restored on Masses for the deceased, unless the will of the deceased or of the heirs can reasonably be presumed, as is clear from the decree of the Sacred Penitentiary, February 7, 1899, in Ami du Clerge, t. XXI, 1899, p. 415.

(b) If a community or society has been injured, restitution must be made to the administrators of this community. - Yet if the society of which there is question pursues an altogether wicked end, as a Masonic sect, restitution is not to be made to the society itself, but to its individual members, or, if this cannot be done, to the poor. But if the society is not essentially evil, although at times it expends money for evil uses, - as is a heretical sect, - restitution must be made to it; for it can possess legitimately, nor is it deprived of its right because of certain abuses in which it indulges.²

² Holy Office, September 21, 1842: "Whether a Christian faithful who knowingly and willingly destroyed and ruined the walls, doors, and furnishings of a temple, and on that account is seized by heathens, ought or can repair the damage, at least by another title? - Resp. He is held to restitution, by title of justice" (in Bucceroni, Enchiridion, n. 672).

(c) He who culpably burned an insured house must restore to the insurance company that which it paid to the owner, and to the owner the part of the damage which the company did not repair. - But if it becomes morally impossible to know which company suffered damage, on account of the pact which they call reinsurance (reassurance), restitution must be made to the poor or to pious causes.

554. 2. If it is doubted which person has been injured, first indeed inquiry must be made, and indeed with that diligence which is proportioned to the value of the thing; but, if the doubt remains, -

(A) If the doubt concerns few persons, - because, e.g., money found was lost by one of four or five persons, let the thing be divided among them in the better way in which this can be done.

(B) If it concerns many, let restitution be made to the injured persons, if this can morally be done, e.g., if merchants defrauded in the weight or quality of goods, let them increase the weight or furnish better quality when the injured buyers return; if this cannot be done, let restitution be made to the poor or to pious works, especially of that place where the injustice was committed; for in this case, the injured are judged to consent to this mode of restoring.

555. 3. When the injured person remains altogether unknown, after diligent inquiry has been carried out, a distinction must be made: (A) If the thing was acquired in good faith, it can be retained by the possessor by prescription as a lost thing (above, n. 229).

(B) But if in bad faith, it must be restored to the poor or to pious causes. All theologians admit this, although they dispute concerning the foundation of this obligation: some derive it from natural law, but others from ecclesiastical law.¹ We think that it flows from natural law, and was explicitly declared by ecclesiastical law. For natural law commands that, on account of the public good, no one become unjustly richer from another's thing; but if the possessor in bad faith retained the thing unjustly possessed, he would become richer from another's thing, and thus his injustice would patronize him; and therefore the public good would suffer, since from this evildoers would become bolder. - Moreover ecclesiastical law determined this as regards usuries and a simoniacal price; and theologians commonly extend it to all debts arising from delict.

¹ For Alexander III (Decretal. Gregor. XI, lib. V, tit. 19 de Usuris, c. 5, p. 812, ed. Friedberg) decrees that usurers are to be compelled to restore usuries "to those from whom they extorted them, or to their heirs, or, if these do not survive, to distribute them to the poor"; the same is elsewhere declared concerning simoniacs, and, by analogy, is extended to all who in bad faith detain another's thing.

556. Hence, in the restitution of uncertain debts, Pontiffs have sometimes granted condonation or reduction, from a grave cause, insofar as they are administrators of pious causes.

If the debtor himself is poor, he will be able to keep part of another's thing which is necessary for relieving his own poverty: for the one possessing is not excluded from the number of those to whom restitution can be made; nevertheless one must beware of illusions which easily occur when someone is judge in his own cause. If the unknown owner afterward appears, the possessor of another's thing has the rights and duties of a possessor in good faith, if he employed the required diligence for finding the owner; and therefore if he restored to the poor, he is bound to nothing further; - if he was not diligent, he is held as a possessor in bad faith, and must compensate the damage inflicted upon the owner.

557. General principle. Restitution must be made there where the rights of the creditor are preserved, yet without a graver inconvenience of the debtor. Hence: -

1. A possessor in good faith is bound to restore the thing in the place where it is when he begins to know that the thing is not his own; nor is he bound to undergo the expenses or dangers of transmission; but it suffices that he make known to the absent owner that he is prepared to return the thing.

The reason is that the possessor in good faith is not bound to suffer detriment from another's thing. - Hence if the thing perishes while it is being transmitted, the possessor is not obliged to compensate the damage.

558. 2. A possessor in bad faith or an unjust damager must restore, at his own expense, in the place where the owner would have possessed the thing if it had not been taken away or destroyed, after however the expenses which the owner would have made in carrying the thing away have been deducted (by natural law). - For, as a damager, he is bound to repair the whole damage which the owner suffered.

(a) Yet if the expenses for conveying the thing to the owner would greatly surpass the value of the thing itself, it would suffice to transmit the price of the thing to the owner, unless the thing was most dear to the owner. - Today however, because of the ease of transport (facilite de transports), for the most part the thing itself can be sent back with small expenses.

559. (b) If the thing to be restored perishes by chance or by the fault of a third person before it reaches the owner, the unjust possessor must compensate the damage, but has recourse against him to whom the thing had been committed; for a debtor from delict must bear every damage even fortuitous, from what was said above, n. 506. - The case is excepted in which the owner or judge determined the messenger to whom the thing was to be entrusted: for then as soon as it has been handed over to the messenger, it becomes the creditor's, and, if it perishes, it perishes for him.

Wherefore many probably judge that he is immune from a new restitution who handed over the money to be restored to a confessor, with whom it perished by chance or by the fault of a third person; for the confessor can be held as a messenger chosen from the presumed consent of the creditor, since often restitution cannot be made safely by another way without danger of infamy, - and moreover the confessor from office is a trustworthy messenger. - Hence, in practice, he who restores in this way, and thinks that he has already satisfied his duty, is not to be compelled to a new restitution.

560. Principle. Restitution must be made as soon as morally possible, unless a reasonable cause excuses, so that all damages following from culpable delay must be repaired. - For the owner has the right of possessing his own thing and of enjoying it; but he is deprived of both rights if restitution is too long deferred without cause.

(a) Therefore he sins gravely who without cause notably defers restitution in grave matter; and also he who, being able to restore the whole, wishes to restore only by parts; the sin will be venial if the delay is brief and does not inflict grave damage upon the creditor.

(b) If from culpable delay the owner suffers damages which could be foreseen, the unjust possessor, as a damager, must compensate them. Now damages commonly occurring in similar circumstances can be foreseen, but not extraordinary ones, unless the debtor who is in delay had been sufficiently warned.

(c) Those sin gravely who, without sufficient reason, defer restitution until death, not only because of the delay of restitution, but also because it is to be feared lest the heirs omit restitution. - Therefore the confessor must prudently exhort penitents that they themselves restore before death, insofar as this can be done; or at least employ efficacious means that restitution be made, e.g., by giving the money to a trustworthy person, who may diligently pay all debts.

561. General principle. Restitution must be made in that mode by which violated justice is repaired to equality. - This is clear from the very notion of justice and of restitution.

It is explained: (a) Restitution generally can be made secretly and while the owner is unaware, unless scandal is to be repaired, so that in this way the reputation and honor of the one restoring may be spared.

(b) It can be made under the appearance of donation; or through labor spontaneously and gratuitously undertaken for the utility of the owner, or through thrift, or other means of this kind; especially if the question concerns those who can scarcely restore otherwise. - If it is made by way of donation, and the creditor, moved by this cause, repays another gift of the same value to the debtor, one must proceed in another way.

(c) The debtor, or damager, can restore either through himself or through another trustworthy person. Often the confessor is chosen by the penitent as a middle person; the confessor can accept this function, provided he acts prudently, lest he break the seal of confession; - e.g., he can restore through another priest as intermediary, by sending the money from another city, etc.; it is also expedient that the penitent be made certain that restitution has truly been made, so that every suspicion may be avoided.

562. 2. Corollaries. (A) If someone, forgetful of a debt, gratuitously gives something to the creditor, does he satisfy the obligation of restoring? - It is controverted:

(a) Some deny it; for the donation was made from the motive of benefiting, not from the motive of restoring. (b) Others more probably affirm it; for the donor, in this case, virtually and implicitly wishes to restore, because, since he is well disposed, he has the implicit will of restoring; so that he would have had this will explicitly, if he had been conscious of his obligation. Hence in practice restitution is not to be urged in this case. - Indeed, if restitution is to be made to the poor, alms made after the obligation has been contracted can be held as restitution.

563. (B) In what way must restitution be made to the State or Municipality?

(a) If some mode is determined by law, this must be observed, insofar as it can be done.

(b) Otherwise, restitution can be made to the administrators of the State or Municipality, - or by destroying titles of debt issued by the State or Municipality (rentes sur l'Etat, timbres, obligations des villes), but not those which are issued by a private society. Some add that restitution can be made to those who have been unjustly despoiled of their goods by the civil power; but in this case, the injustice must be manifest; - or to the poor, because the obligation is incumbent upon political power of assisting them; nevertheless this does not seem probable; for generally the State satisfies this obligation in other ways, nor does it belong to private persons to dispose of public revenues by private authority.

Here we shall explain how restitution must be made: 1. as regards damage in goods of the body; 2. as regards goods of the soul; 3. on account of impeded attainment of some good; 4. on account of defrauded taxes.

¹ Sayrus, lib. XI, cap. 1-10; Lugo, disp. XI-XV; Billuart, diss. X, art. 11; diss. XV, art. 3; St. Alphonsus, n. 626-675; Carriere, n. 1301-1430; Ball. P., n. 440-498; Marres, lib. II, n. 257-366.

The question can be weighed: 1. as regards homicide and wounding; 2. as regards duel; 3. as regards seduction; 4. as regards adultery.

564. State of the question. (A) The obligation of restoring arises from homicide and wounding committed unjustly, efficaciously, and culpably. Hence he who kills or mutilates another for the sake of just defense, and with the moderation of blameless defense, is held to no restitution. But he who, in a case of legitimate defense, notably exceeded just moderation, according to some, is bound to restitution; according to others, probably he is not bound, because the unjust aggressor knowingly and willingly exposed himself to the danger of death, and ought to impute to himself his own death or wounding; for he who is unjustly attacked can scarcely think of the moderation of blameless defense, and almost always is in good faith.

(B) Damage from homicide or mutilation can be threefold: natural, namely the loss of life or members; spiritual, insofar as the one killed is deprived of the opportunity of doing penance and of the suffrages which by testament he could have procured for himself; temporal, which happens either to the one killed or mutilated himself, or to his family, e.g., expenses for treating the wound, ceasing profit on account of the death, illness, or mutilation of the injured person.

565. Now (a) natural damage cannot properly and directly be compensated in the same genus; and it is controverted whether indirectly and equivalently it must be compensated through a payment of money. Many modern authors probably say that no compensation is owed unless it is imposed by the judge, because none is possible, since life, integrity of members, and bodily health exceed every price. Yet we judge it more probable, with St. Thomas¹ and many other older theologians, that some compensation is owed even for natural damage to the injured person, but not to his family. "When that which has been taken away is not restorable through something equal, compensation such as is possible ought to be made, as when someone has taken a member from another, he ought to compensate him either in money or in some honor, the condition of each person being considered, according to the judgment of a good man." For although justice intends perfect equality, yet if this cannot be obtained, we ought to approach it insofar as can be done. Yet according to all, care must be taken lest such compensation be an incitement to crime, e.g., to fornication. - The same diversity of opinions prevails as often as restitution in the same genus of goods cannot be made.

¹ St. Thomas, 2. 2., q. 62, a. 2, ad 1.

(b) Spiritual damage can and must be compensated in the same genus, through prayers, Masses, and other spiritual works. According to not a few, this obligation arises from justice; according to others, from charity; let the confessor warn homicides about this matter.

(c) Therefore it remains to speak of temporal damage.

566. Principle: A homicide or mutilator is bound to repair all temporal damages which he at least confusedly foresaw as going to follow from his action. - For he truly is the unjust, efficacious, and culpable cause of these damages.

567. Corollaries. (A) This obligation is real, and therefore passes to the heirs, who nevertheless are not held beyond the forces of the inheritance.

(B) The principal damages are: expenses for the treatment of the wounded or killed person, - or for the funeral, namely insofar as they are greater than if the injured person had died at home; ceasing profit on account of the wound or death of the injured person, which must be estimated by the judgment of a prudent man, with all circumstances of person, age, office, labor, etc., considered.

But because it is difficult to define these altogether accurately, it is very expedient that a friendly composition or transaction be made.

(C) Restitution must be made primarily to the injured person himself, and, after his death, to his nearest heirs, namely parents, children, and wife, because, on account of the very strict bond by which they are united to him, they form one moral person with him. The obligation of restoring to these nearest heirs is certain if they were receiving support from him and do not otherwise have that by which they may sustain themselves. More probably and more commonly the same is said, against Lacroix¹ and a few others, in the case in which parents, wife, and children can easily provide for themselves; for even in this case they have suffered unjust damage.

¹ Lacroix, lib. III, P. II, de Restitutione, n. 309; St. Alphonsus, n. 631.

568. (D) It is controverted whether restitution must be made to the remaining heirs, even blood-relatives, and to creditors of the deceased, who incur damage from this. These are the things which seem more probable to us:

(a) It is not clearly established, and therefore the obligation of restoring is not to be urged for non-necessary heirs, whom namely the deceased was not bound to provide for; for it is uncertain whether the deceased had the will of enriching them, and therefore if they suffer damage, it is caused by accident, and moreover such damage is partly compensated by the fact that they approach the inheritance sooner. - Yet the case is excepted in which one of them had been received into the family of the deceased, and held as a son; for then the deceased at least implicitly promised to have care of him, and obligated himself to this.

569. (b) Nor is the obligation of restoring to creditors of the deceased established, unless the homicide in a particular case foresaw and, according to some, intended the damage of creditors of this kind. Otherwise, damage inflicted upon creditors follows by accident, so that the homicide is not truly the efficacious cause of the same (n. 472); but with foresight, and according to some with intention, added, now nothing is lacking that the homicide should be the efficacious, culpable, and unjust cause of the damage.

To be noted. If one lethally wounded spontaneously and freely before death remits all debts to the homicide, the latter more probably is not bound from strict justice to restitution: for by condonation the debt is extinguished, from what will be said below. - Yet the wounded person, by acting thus, injures charity, if his relatives need support.

570. (A) He who provokes another to a duel, and by force, fear, or grave threats morally compels him to accept, and at last kills or wounds him, is bound to restitution like a homicide or one who wounds; for he uses unjust means for extorting consent; he who is provoked is truly unwilling, and injury is done to the unwilling.

(B) But if the one provoked spontaneously accepts, and is killed or wounded, or a fortiori if the one provoked kills the one provoking, no place is given to restitution by natural law; for each, by freely accepting the duel, freely exposes himself to the danger of incurring damage: but injury is not done to one knowing and willing.

Yet, if the civil judge has enjoined reparation of damage, his sentence obliges in conscience, since it was passed on account of the public good, to keep others away from duel.

Here the question concerns only temporal damage, which arises especially from the difficulty of marrying a person of the same condition, or from the burden of educating offspring, if any has been conceived; but the loss of virginity is damage in itself irreparable.

571. Obligations toward a seduced or oppressed woman. (A) He who by force or fraud oppressed or seduced an honorable woman is bound to repair all damages which followed from this. For by using these means, he inflicted damages of this kind unjustly, efficaciously, and culpably.

It is explained: (a) by force or fraud; under which name come not only violent oppression, whether in the state of waking or in the state of sleep or drunkenness, but also threats unjustly impressed, importunate prayers of a superior, lies or false promises - especially a promise of marriage - by which the woman as it were unwittingly or unwillingly is induced to intercourse.

(b) An honorable woman, whether she is a virgin or a widow, provided she is held as chaste according to public estimation.

572. (c) He is bound to repair the damages. And this can be done either by marrying the woman,¹ - or by dowering her, so that more easily she may marry another, although deflowered.

¹ A woman is not bound to accept the seducer who offers marriage, but keeps the freedom of marrying whom she wishes: then the seducer must dower her, according to the common and true opinion.

The former indeed is to be counseled, unless too great a disproportion between the man and the woman, or another grave reason, stands in the way; nor however is it to be imposed under grave sin, unless an explicit promise of marriage had been present; - indeed even in this case this obligation is not to be urged if marriage is morally impossible because of disparity of condition, hatreds going to arise between families, or other unhappy outcomes prudently foreseen, - if the girl from the circumstances could easily have noticed that the promise was feigned, or afterward freely condoned the offense, whether explicitly or implicitly (e.g., by breaking faith).

If the seducer does not marry the girl, he must furnish her a suitable dowry, - or otherwise take care that she can marry according to her condition, - or, if she cannot marry, contribute to her support. - Yet he is excused from this duty if the woman in fact suffered no damage of fortune, because, e.g., she already married according to her state, or entered religion, or died by premature death; likewise, if the woman condoned the injury.

573. (B) He who deflowered a girl freely consenting, or induced her to sin only by prayers, blandishments, or persuasions, strictly is not bound to restitution under this head, unless afterward he manifested the hidden delict to others, or was condemned by the judge to a fine. - The reason for the rule is that injury is not done to one knowing and willing.

But if he manifested the matter to others, by that very fact he becomes an unjust detractor, and under this respect he must repair the damages which followed from it. Moreover, if the judge, on account of the public good, has commanded some reparation, this sentence obliges in conscience.¹

¹ By French civil law, from art. 1382, a pregnant girl can obtain compensation from the seducer. Cf. Planiol, 4th ed., I, n. 1529 sq.

574. Obligations as regards offspring conceived. (A) If someone has seduced a woman by force, fear, or other unjust means, he is bound, if offspring has been born, to bear all expenses of nourishment and education, because he himself is the unjust, efficacious, and culpable cause of the whole damage. Yet, if the father does not provide for the offspring, the mother is bound, by the law of piety, to educate the infant; but the seducer is bound to compensate all expenses which she underwent.

(B) If the woman freely consented, both parents are held by an equal obligation, in solidum, to educate the offspring until he can provide for himself; for piety, by which parents are held toward children, obliges to this.

(C) It is altogether fitting that the offspring be acknowledged before the Church and the civil forum, and be rendered legitimate, unless a grave inconvenience stands in the way, lest the offspring remain infamous and without inheritance.

575. State of the question. Adultery, besides the malice of fornication, carries an injury inflicted upon the other spouse, which must be repaired through satisfaction, when the adultery has become known to the husband; but if it has remained secret, silence must be altogether preserved, lest quarrels be caused. If offspring has not been born from the adultery, no temporal damage is to be repaired; but if offspring certainly has been born from adultery, there is a twofold damage to be repaired: (a) the expenses for nourishing and educating the offspring, which the husband unjustly underwent; (b) the portion of the paternal inheritance by which the legitimate children are unjustly deprived, because the illegitimate child unjustly receives some part of the inheritance. - But more probably damages which come by accident are not to be compensated, e.g., from the fact that blood-relatives give or leave by testament certain things to the adulterine child.

I said: if offspring certainly has been born from adultery; for in doubt, offspring is judged born from the legitimate husband, according to that: the father is he whom the marriage shows.

576. Principles. (A) If a man by deceit or force carnally knew the wife of another, he alone is bound to repair all damages, because he alone is the unjust, efficacious, and culpable cause of the damage.

(B) But if the wife freely consented to adultery, both adulterers are held in solidum to restitution of the damage inflicted upon the husband and legitimate children; for each is the unjust, efficacious, and culpable cause of this damage.

577. Corollaries. (a) Sometimes the adulterous woman alone is bound to repair the damages which happen by reason of inheritance; namely if she could easily have avoided these damages, by nourishing the adulterine offspring outside the family, e.g., in an orphanage, - and the adulterer did whatever he could to obtain this; for by acting thus, he sufficiently retracted the cause of damage posited by him; and the adulterous woman alone, by refusing this means, is the efficacious cause of the damage as regards the division of the inheritance. But this is rarely verified, since in practice it is very difficult to educate offspring outside the family without suspicions arising.

578. (b) If a wife has had carnal commerce with two adulterers, at a time apt for conception, and it is doubted which of the two is the father of the adulterine offspring, it is controverted whether both are bound to restitution: - according to some, neither is bound, because no one is obliged to reparation of damage unless it is morally certain that he is the efficacious cause of the same; but concerning neither is the matter morally certain. Yet more probably each is bound in solidum or at least according to the proportional part of the doubt; for each posited a cause of itself apt for causing the damage, and if paternity is doubtful, each cooperated in producing this uncertainty; and therefore he cannot be excused from restitution because of this uncertainty.

579. On the mode of restoring. It is very difficult to restore in this case, since from restitution suspicions about the adultery committed can arise, which would disturb the peace of the family. Hence the confessor must be altogether prudent in this matter.

(A) For the most part an adulterous woman is not bound to manifest her crime in order to avoid the damages going to follow from it; such a revelation generally cannot be made without danger of incurring the hatred of the husband, discords, divorce, and grave infamy, not only for herself, but for the whole family; but all these are much graver inconveniences than damages of fortune, and therefore dispense from restitution, if it cannot be done otherwise.

(B) Moreover a son is not bound to believe his own mother when she manifests his adulterine origin, unless from the circumstances as supports this testimony produces certainty, e.g., if it is proved that the father was absent at the time of conception. But if the matter is certainly established, he cannot in conscience retain the paternal inheritance.

(C) If it is possible to educate the adulterine offspring in a foundling hospital, without suspicions arising, this indeed must be furnished, since thus the expenses of education are greatly limited and the division of the inheritance is avoided.

Otherwise, the adulterous woman will strive to restore, by giving more, from her own goods, to the legitimate children than to the illegitimate child, by diminishing expenses, by working more diligently and giving the fruits of labor to the legitimate children. - But the adulterous man can restore by giving something to the legitimate children, whether among the living or by testament, according to the estimation of a prudent man.

Goods of the soul concerning which there can be difficulty are especially reputation and honor.

580. Principle: He who unjustly injured another's reputation, whether by calumnies or detractions, is bound from justice to restore it, and at the same time to repair all damages which efficaciously and culpably followed from the defamation.

For whoever knowingly and willingly violates another's strict right is bound to repair it; but by unjust detraction or calumny the strict right to reputation is violated, as was said above (n. 377); besides, often, by injuring reputation, by that very fact the goods of fortune are injured; thus a merchant, physician, advocate, etc., by losing reputation, will by that very fact suffer temporal damages: therefore the unjust defamer is also bound to the reparation of damages of this kind.

The obligation of restoring reputation is personal, and therefore regards only the defamer; but the obligation of repairing temporal damages is real, and therefore passes to the heirs, yet not beyond the forces of the inheritance. - Yet many are ignorant of this, and often are to be left in good faith, lest perhaps they commit formal injustice.

581. Corollaries. (a) He who has sinned gravely by defaming another is bound to repair the reputation even with grave inconvenience to himself; for a grave obligation binds with proportionately grave inconvenience. But if someone injured another's reputation not from grave fault, but from inadvertence or imprudence, he is bound to repair the reputation and damage, but not with great inconvenience.

(b) It can happen that a light injury of reputation induces grave damage in goods of fortune, e.g., if someone loses the office of secretary because he is displayed as talkative: then there is a grave obligation of repairing the grave temporal damage, if it was foreseen.

(c) If the whole fault arises not from the side of the speaker, but from the side of the hearers, who understood his words perversely, the detractor must correct the error not from justice, but only from charity.

582. The mode of repairing reputation. (A) The mode is diverse according as the injury was calumny or simple detraction.

(a) If the question concerns calumny, this must be openly retracted, even with loss of one's own reputation, unless the reputation can efficaciously be repaired otherwise, by saying, e.g., that one erred or was deceived: for the innocent person has a right to reputation rather than the calumniator.

(b) If the question concerns simple detraction, the difficulty certainly increases, since the crime unjustly manifested is true; nevertheless reparation can be made in a twofold way: directly, by saying that one was deceived, that one spoke badly and unjustly; indeed, according to some, the defamer can say that he said what was false, by using a mental restriction; nevertheless Billuart denies this, and deservedly, since such a mode of speaking is a lie; - indirectly, by praising and honorably treating him who was defamed, and by excusing his faults; which often is more efficacious than any mental restriction.

583. (B) If the defamation was public, reparation ought to be public in the same way, insofar as can be done: hence, -

(a) The defamer is bound to restore the injured reputation of the neighbor not only before the immediate hearers, but also before the mediate hearers, when he foresaw that the hearers would spread abroad this defamation; but, since direct reparation is often difficult, then it suffices to exhort the hearers that they retract themselves before those to whom they manifested this.

(b) If the defamation was in writings, generally the reparation also ought to be made in writings.

584. Causes excusing from restitution of reputation. Not rarely causes are given which excuse from restitution of reputation, namely: -

(A) If the defamation was not efficacious, because, e.g., the hearers did not give faith to the detractor, - or another, by correcting the detractor, impeded the evil effect; - or if the infamy has already been removed, e.g., because the falsity of the calumny was publicly acknowledged, or was erased by forgetfulness in the course of time: for then careful provision must be made lest, through an inopportune retraction, the defamation revive.

(B) If reparation is physically or morally impossible; e.g., if the hearers of the detraction are unknown, or cannot be approached; if the delict has already become public by another way; or if another's reputation cannot be repaired without one's own damage much graver.

(C) If the injured person has condoned the injury, whether expressly or tacitly, provided he has the power of condoning, and moreover the public good does not stand in the way; for if the question concerned a magistrate or priest, who needs a good name for exercising his function, condonation cannot be made. - To condonation compensation is added, when namely the defamed person himself injured the reputation of the detractor, and does not wish to repair the injury: for then reparation can be deferred until the other is prepared to repair the reputation.

585. (A) Principle: He who unjustly injured the honor owed to someone is bound to restore honor to him and the damages efficaciously and culpably following from this. - For we have a strict right to honor as to reputation; and therefore the violation of this right must be repaired.

This is certain when the insult was public in some way, e.g., when someone, before two or three persons, was struck with blows; and it is commonly admitted also when the insult was hidden; for even then the right to honor is violated, from what was said above, n. 398.

586. (B) The mode of repairing honor. That signification of honor is required and suffices which, all circumstances being considered, and the gravity of the injury, and also the customs of places, is suitable, in the judgment of a prudent man, for repairing the damage inflicted. Hence: -

(a) When a superior offends a subject, rarely is he bound to ask pardon from the inferior, but for the most part a friendly greeting, or another sign of benevolence, suffices.

(b) If the offense happens among equals, - either signs of honor greater than usual are to be shown to the injured person, if the injury is not grave; or, if it is graver, pardon is to be sought.

(c) If an inferior directs an insult against a superior, generally a humble petition for pardon is required.

A threefold hypothesis can be distinguished, according as he who is impeded from attaining a good has a strict right to that good, - or only a faculty and legitimate hope, - or is unworthy of a good of this kind.

¹ Lugo, disp. XVIII, n. 90-113; Sporer-Bierb., II, tr. IV, n. 242-260; St. Alphonsus, n. 582-588; Noldin, n. 421.

587. 1. He who in any way impedes another from attaining some good to which he has a strict right, whether in a thing or to a thing, commits true injustice, and is bound to restitution proportioned to the damage inflicted.

Thus, e.g., if an advocate impedes a creditor from obtaining payment of a debt; if someone by prayers, persuasions, or other means induces a father to deprive a son of the legitimate part of inheritance to which from civil law he has a strict right.

588. 2. If the question concerns goods for the attainment of which there is no strict right, but only a legitimate power and founded hope, a distinction must be made: (a) he who uses unjust means, force, fear, fraud, calumnies, etc., commits injury and is bound to restitution, because each one has a strict right not to be unjustly impeded from attaining a good which he can legitimately acquire.

Thus, e.g., he who by fraud impedes an uncle from making a testament in favor of a nephew; - he who by calumnies prevents a rich man from bestowing alms upon such a poor man; - he who, by defaming a servant, keeps him away from the service which he deservedly hoped for; - a merchant who, in order to sell his own goods, lowers the goods of others by lies, or, by intercepting their letters, supplies the goods which were being sought from them, etc.

(b) But he who uses means in no way unjust, but only prayers, services, persuasions, etc., does not sin against justice, nor is he bound to restitution; for by doing this, he uses his own right.

Thus, e.g., he who by prayers induces a testator not to leave an inheritance to such a non-necessary heir, but rather to another more beloved to himself; he who by persuasions moves a bishop not to confer a benefice or ecclesiastical office upon such a priest, - indeed the more worthy, but by no means having a right to it, - but rather upon another less worthy.

589. 3. If someone impedes another from attaining a good of which this latter is unworthy, he does not do injustice, nor is he bound to restitution, because the unworthy person has no right to that good, but on the contrary ought to be kept away from it, on account of the public good.

Thus those who reveal to superiors the hidden delicts of someone, lest an office be conferred upon him for which he is unfit; - a woman who turns a prodigal husband away from making a donation to someone who pretends that he himself is poor.

590. Corollaries. 1. Those who pretend to be poor, while in fact they are not, and thus obtain abundant alms, unjustly extort money from donors, and must restore to the donors themselves who were deceived, if this can conveniently be done, or to other poor persons or pious works, according to the presumed intention of the donors. -

But if they are poor, and merely pretended to be a little poorer than they in fact are, they are not bound to restitution, since this mode of acting is for the most part understood by the rich, and does not induce a substantial error.

What has been said of the poor can be applied to all those who, under a feigned title, extort gifts, money, or legacies.

2. If the damage regards a right to a thing or a legitimate hope, restitution must be made according to the estimation of prudent men.

In order that the matter may be better understood, a few things concerning the notion and obligation of taxes must be noted beforehand.

¹ Concerning taxes, besides the theologians, see economists, e.g., P. Leroy-Beaulieu, Traite d'Economie Politique, Paris, 1896, t. IV, p. 736-799; P. Cauwes, Cours d'Econ. Politique, Paris, 1893, t. IV, n. 1216-1290; C. Gide, Principes d'Econ. Polit., Paris, 1903, p. 611-634; R. Ely, Taxation in American States and Cities, New York, 1818; Seligman, Essays on Taxation, New York, 1895; id., Progressive Taxation.

591. (A) Taxes, or duties, are whatever citizens are bound to pay for relieving the common burdens of the commonwealth. - They are various, but more commonly they are distinguished into direct and indirect: the former are those which immediately and primarily affect persons because of the goods which they possess, immovable or movable, or the arts or businesses which they exercise. But indirect taxes are judged to be those which immediately and primarily affect the things themselves, and only mediately persons, such as those which are collected on the occasion of succession, transportation, manufacture, etc. This is the common distinction; yet sometimes civil laws, in various regions, do not understand this division of taxes in the same way.

(B) Now, in order that taxes be just, especially a threefold condition is required: (a) that they be imposed by legitimate and competent authority, national, provincial, or municipal; (b) for a just cause, namely the utility or necessity of the commonwealth; and therefore under this head taxes imposed for useless or, a fortiori, harmful expenses are excluded;¹ (c) with due proportion preserved to the faculties of each one, so that those who are richer and receive more of the benefits of civil administration likewise bear greater burdens.

¹ Wise economists admit that in modern societies there are certain taxes of this kind.

592. A twofold opinion is given concerning this matter: for some say that tax laws are merely penal, and oblige only to paying either the tax or the fine which is imposed upon those defrauding: for today civil legislators, at least implicitly, declare that they do not wish to impose this obligation in conscience; moreover laws are so understood by most citizens, who in fact are conscious of no sin when they evade taxes.² Yet the more probable opinion, to which we adhere, holds that laws of this kind, when otherwise just, truly oblige in conscience.

² Thus, e.g., Ball. P., n. 327; Crolly, III, n. 1010-1023; Berardi, III, n. 413; Genicot, n. 574; Noldin, n. 466.

593. Principle: Tax laws, when they are just, of themselves oblige in conscience, directly indeed from social justice, but indirectly from commutative justice, after the quota part has been legitimately determined. Thus more probably.³

³ Bouquillon, Theol. Moralis fundamentalis, Paris, 1903, n. 227-229; Marres, De justitia, I, 196-197, 199-209; Waffelaert, II, 421.

It is proved. (A) In the Gospels, the matter indeed is not explicitly declared, but is shown as consonant with the doctrine of Christ and His manner of acting. For when the Pharisees and Herodians asked Him whether it was licit to give tribute to Caesar, He answered:¹ "Render therefore to Caesar the things that are Caesar's, and to God the things that are God's." What He was teaching, He had already confirmed by example; for a little earlier, He had ordered Peter to pay the tribute.² - St. Paul clearly inculcates the same doctrine:³ "For because of this you also pay tributes; for they are the ministers of God, serving unto this very thing. Render therefore to all their dues: to whom tribute, tribute; to whom custom, custom."

¹ Matt., XXII, 21.

² Matt., XVII, 23-26.

³ Rom., XIII, 6-7.

594. (B) It is proved by reason. For citizens are bound in conscience to furnish those things which are necessary for protecting and preserving society, since men are born to live in society; but society generally cannot be preserved unless the expenses necessary for preserving good order and defending the fatherland against enemies are paid; - moreover, unless citizens are held in conscience to pay these expenses, the intended end will not easily be obtained; for a way will be opened to innumerable frauds and deceits, with the greatest detriment of the treasury and of morals; the honorable and simple will pay more than is fair, while the dishonest and deceitful will pay less; the richer will pay taxes not according to their resources and faculties, but according to their own judgment, since they can hide the greatest part of their goods; and thus inequality and injustice will prevail, with the greatest detriment of the whole of society.

Therefore this obligation arises from justice not only legal, but also commutative; for, when the State has determined the sum of money which is necessary for common expenses, if certain citizens fraudulently do not satisfy their obligation, by that very fact heavier burdens are imposed upon others, and therefore these must pay not only the part of taxes which is proportioned to their own fortune, but also the part which is not paid by those defrauding.

595. It is explained. (a) It was said of themselves, insofar as, namely, the legislator has the power of obliging subjects in conscience, and in fact generally intends to oblige them thus; hence, if from the circumstances it is clear that such was not the mind of the legislator, and that the law is understood by the greatest part of the people as merely penal, so that even the God-fearing use frauds as often as they can avoid the fine, accidentally the law does not bind in conscience. Likewise custom can bring it about that a law which before had obligatory force from the very intention of the superior afterward becomes merely penal. - This indeed is to be regretted, because, while the upright pay taxes in full, the less honorable only partially satisfy their debts, and little by little injustice prevails; whence it also happens that the God-fearing labor under anxieties.

(b) After the quota part has been legitimately determined; for today a tax law does not oblige subjects unless the quota to be paid has been determined by legitimate authority: for then only, according to the laws, does the general duty of paying taxes pass into a strict obligation, which can be sought by civil action. But concerning the various modes by which that determination is legally made, see the laws of various nations. So that the quota part to be paid may more easily be determined, the laws command that either citizens themselves declare the value of their things, or fiscal officials (repartiteurs) or magistrates investigate the matter. Now citizens from legal obedience are bound to declare things subject to tax, insofar as legitimate custom interprets these laws; hence, if a milder interpretation of the laws is in use by common custom, with the legislators knowing and remaining silent, this indeed can be admitted in conscience. I said from obedience, not from justice; yet, if someone has violated the law in this matter by lies or frauds, indirectly he can be bound to restitution, insofar as he was the cause why the treasury could not receive the tax established by law.

596. (A) According to all, tax-collectors are bound to restitution when they knowingly and willingly favor those defrauding, since from office they must prohibit this. - Likewise those who corrupt collectors, lest they exact taxes which are truly owed, or by force or fear impede them from inquiring about things liable to tax: for then they become cooperators of the collectors in an unjust matter. This is clear from what was said above, nn. 494, 512.

(B) Those who from habit, and as if from art, devote effort to defrauding duties, sin gravely, both because they expose themselves to grave danger, and because they prepare themselves in mind even for bloody defense against the guards of duties. - Moreover, according to the opinion which we have explained, they are guilty of injustice, and are bound to restore, especially if they have become richer from this.

597. (C) In regions in which the tax law is held as obliging in conscience, and upright citizens are accustomed faithfully to pay taxes, according to the opinion explained above those who use frauds so as not to pay them are bound to restitution: for injury is done either to the State or Municipality, or to the other citizens who under this head must bear greater burdens. - But where a custom has prevailed of declaring goods, whether movable or immovable, much below the value of the things, and therefore of paying lesser taxes, the upright cannot be compelled, under the burden of restitution, to declare the full value: otherwise, they would pay more than is fair. This especially holds where taxes are imposed that are too burdensome, and many useless expenses are made.

598. (D) As regards military law, these things seem to be established: (a) Those who corrupt physicians by gifts, so that by them they may be declared unfit for military service while in fact they are fit, are bound to restitution toward those who, in their place, were called to military service, namely where a determinate number is taken; for thus they cooperate in the unjust action of the physicians, who from office must declare as fit those who truly are such. - But otherwise, if they only strive to capture their benevolence, so that in doubt about their fitness they may favor them.

(b) When those called to military service withdraw themselves from military service by mutilation, feigned illnesses, or lies, they indeed sin against the obedience owed to legitimate authority; but the question is whether they are bound to restitution. Now, where all are called to military service, they violate the rights of no citizen, and therefore cannot be compelled to restitution; but where a determinate number is taken, we think, according to the principles explained above, that they are bound to restitution toward those who, in their place, were enrolled in military service, because they truly are the efficacious cause of this damage. Nevertheless some probably teach that they are bound to nothing, because they are indeed the occasion why others are taken, but not the cause: the truly efficacious cause is the law of conscription itself. This argument seems weak to us; for those who withdraw themselves from military service in this way are the efficacious cause why the law is applied to others, who otherwise would have been exempt from military service.

(c) Whatever may be the case, those who by natural law (e.g., because of illness), or by ecclesiastical law, are immune from military service, do not sin while they use licit means to evade the law, nor are they bound to restitution toward those who, in their place, are enrolled in military service; for by acting thus, they use their own right. - Moreover, good faith often excuses.

599. After what has been said concerning the obligation, roots, and circumstances of restitution, it remains to inquire whether and what causes excuse from restitution. But some excuse for a time, others forever: concerning these we must speak separately.

¹ Lessius, lib. II, cap. 16; Sayrus, lib. X, tr. V, cap. 6; Lugo, disp. XXI; Billuart, diss. VIII, art. XX; Sporer-Bierb., t. II, tr. IV, n. 511-568; St. Alphonsus, n. 696-706; Carriere, n. 1267-1300; Ball. P., n. 527-550; Lehmk., n. 1038-1044; Genicot, n. 557-559; Noldin, n. 504-512.

The causes which excuse from restitution for a time are referred to two heads: inability and damage going to follow from restitution to the creditor or to a third person.

Inability is twofold: physical or absolute, and moral.

600. 1. Principles. (A) Physical or absolute impossibility, - which consists in this, that the debtor has nothing from which he may restore without reducing himself to extreme necessity, - certainly excuses from restitution as long as it lasts; for no one is held to the impossible, and in a case of extreme necessity, each one can secretly take, and a fortiori keep, those things which are necessary for relieving this necessity; the owner, in this case, would not reasonably oppose the delay of restitution.

(B) Moral impossibility, - namely when someone cannot restore without grave damage either to himself or to his family, - excuses from restitution as long as it lasts, unless from the delay the owner suffers similar necessity. - For the law does not oblige with so great an inconvenience; moreover the owner is not reasonably unwilling when he wishes restitution to be made immediately which would bring so great a damage to the neighbor. - Yet, if both the owner and debtor are situated in the same grave necessity, the condition of the owner ought to be better, since he has a right to the use of the thing, while the debtor does not have such a right. - But if the debtor, by restoring, would fall into extreme or quasi-extreme necessity, while the creditor is only in grave necessity, restitution can be deferred.

601. 2. Corollaries. (A) If the debtor cannot restore without falling from his own state justly acquired, he can defer restitution; thus merchants, magistrates, etc., who, by immediately paying debts, would lose their business or office. This probably is extended to those who by their own fault, by gambling, drunkenness, have incurred this necessity. Yet upon all these the obligation is incumbent of diminishing their expenses and diligently working, so that they may be able to restore as soon as possible.

This privilege is not extended to those who, according to public estimation, have acquired their state unjustly, e.g., by robbery or a supposed testament: for these, by immediately restoring, do not fall from their state, but rather return to their former state.

602. (B) If the debtor cannot immediately restore without suffering great damage in goods justly acquired, e.g., without selling his possessions for a much lesser price than they are worth, - or without depriving himself of an instrument necessary for working, etc., he can defer restitution.¹

¹ Hence in most regions workers cannot be compelled to sell instruments necessary to their art; and in some, the paternal house cannot be alienated for paying debts, except under altogether special conditions. Thus, on July 12, 1909, in France, a law was promulgated "on the constitution of an unseizable family good," whose text you will find p. 224*.

(C) The same must be said if the debtor cannot immediately restore without grave damage in goods of a higher order, whether of body or of soul; because, namely, he would deprive himself of money necessary for recovering health, or would expose himself or certain members of the family to danger of sinning.

603. (D) On this occasion it is asked whether one burdened with debt can enter religion before he has restored? - According to the principles explained above, he can indeed enter religion if otherwise he is situated in grave danger of losing his soul; but, even after entrance into religion, he must do all things suitable to his state, so that he may earn what is necessary for paying debts. But since, in our days, there are many inconveniences in accepting debtors of this kind, Prelates ought not to admit them: for it is better that these, by working strenuously, first pay debts; and afterward enter religion without disgrace.

Besides, Sixtus V prohibited those who by their own fault had contracted debts from entering religion, and decreed their profession invalid; Clement VIII abrogated this constitution as regards the nullity of profession, but not as regards the prohibition itself; from the Code, those burdened with debt, who are not able to pay, are illicitly but validly admitted to the novitiate.²

² Sixtus V, Constit. Cum de omnibus, November 26, 1587, Bullar. Roman., t. IV, part IV, p. 371-372; Clement VIII, Constit. In suprema, April 2, 1602, ibid., t. V, part II, p. 410; Code, c. 542, 2°.

604. (E) When the debtor, in these various cases, has deferred restitution, is he bound to compensate ceasing profit or arising damage which the creditor has suffered from this? It is controverted among theologians; for the matter to be solved fairly, a distinction must be made:

(a) A debtor from delict, that is, a possessor in bad faith, or an unjust damager, must compensate all these things, because he is held concerning damage unjustly inflicted; but even if from a just reason he has deferred restitution, he was culpable in the cause, since already previously he ought to have restored.

(b) But a debtor in good faith is not bound to compensation according to many, provided he is not in culpable delay: for he is not the unjust and culpable cause of this damage. Yet today this cannot be accepted without restrictions. For, as soon as he knows that the thing is not his own, he could not legitimately receive the natural fruits except on that condition, that he render them to the owner, and therefore he must pay legal increase. Besides, if he foresaw that the owner would suffer certain damages from the delay, it seems to us that he could not keep the thing except on that condition, that he repair these damages as soon as he could furnish this without grave inconvenience; - but if he foresaw nothing, under this head he is not bound to restitution.

605. If from immediate restitution grave damage, spiritual or temporal, threatens the creditor himself or another person, the debtor can, and sometimes from charity must, defer restitution. For then the creditor is not judged reasonably unwilling, and moreover generally from charity we are bound to impede the damage of the neighbor, when this can conveniently be done.¹

¹ Hence, if delay inflicts grave damage upon the debtor, because, e.g., the creditor is going to prosecute the debtor before judges as guilty of injustice, he can, without injuring charity, restore immediately.

Thus restitution can be deferred if it is foreseen that the owner is going to abuse his thing for indulging drunkenness or lust, or for wounding or killing some innocent person. But for this it is required that the delay be foreseen as efficacious: for if in no way it can impede the evil effect, e.g., because the creditor will use other means for sinning or harming others, there is now no reason for deferring restitution.

The principal causes which extinguish the obligation of restoring are: condonation, compensation, donation, sentence of the judge, and composition granted by the Holy See.

606. 1. Condonation, whether express or tacit, that is, remission of the debt made by the creditor, provided however it be clothed with certain conditions, namely: (a) altogether free, that is, immune from every error, fraud, fear, or force; hence condonation does not have force if the creditor errs or is deceived about the quantity of the debt, thinking it to be much less than it truly is, - if the debtor uses threat or pretends that he is much poorer than he in fact is; (b) that it be made by him who has the power of condoning, that is, who can donate his goods, according to those things which we shall hand down where the capacity of donating is treated.

By natural law, condonation can be express or implicit, or tacit, e.g., by deleting the note of debt; but it cannot easily be presumed. Yet in certain cases, it is deservedly presumed when a positive and solid foundation is present; thus children of the family generally can presume the condonation of parents when the question concerns a sum of money which is not very great and has already been spent; the same holds for wives.

By French law, condonation is presumed when the creditor sends back to the debtor the note by which the debt is proved. Of itself no special form is required for condonation; but for gratuitous condonation the conditions necessary for donation itself are desired; if it is made by testament, the essential forms of testament must be observed.

607. 2. Compensation, by which an equal debt on both sides is extinguished, provided both are certain and from strict justice.

Often civil law also requires that it be made in the same genus of goods. - To this is added payment made to the creditor of the creditor, which is legitimate when it is made from a reasonable cause; namely if the creditor cannot obtain payment of the debt, he can ask from the creditor of his debtor that he himself be willing to pay the debt; thus Paul owes one hundred coins to Peter, while John owes one hundred and fifty to Paul; Peter can ask from John the payment of one hundred coins, and thus John will owe only fifty to Paul. - Yet this faculty in various regions is restricted by law.¹

¹ As regards France, cf. C. civ., n. 1292, 1293; C. proced. civ., a. 557, 580, 581; Planiol, II, n. 567 sq.; 456 sq.

608. 3. Donation of an equivalent thing made to the creditor; namely when Caius, who owes fifty coins to Titius, gives him a thing of the same price, which Titius accepts, provided however he has at least the implicit intention of paying the debt, and not of making a donation, as was already noted above (n. 562).

609. 4. Declaratory sentence of the judge in doubtful matter; namely when it is doubted whether some thing is owed to someone, the civil judge can solve the doubt, and the public good demands that the parties adhere to this sentence in conscience. - Yet if afterward it is discovered that the sentence was objectively unjust, - because, e.g., a new title hitherto unknown is discovered, - it will certainly be licit for the injured party to seek back those things which had already been paid, whether judicially or by another legitimate mode.

610. 5. Composition, or remission of debt granted by the Supreme Pontiff, whether directly or through Sacred Congregations. This indeed can be made for uncertain temporal debts, and for ecclesiastical goods.

(A) When the owner to whom restitution must be made remains altogether unknown, even after diligent inquiry, regularly the possessor in bad faith would have to give the thing owed to pious causes. But sometimes it happens that the debtor cannot restore the whole without great inconvenience; then recourse can be made to the Supreme Pontiff, through the Sacred Penitentiary or Dataria. Now the Supreme Pontiff is accustomed to make condonation in such a way that he decrees that some part of the debt is to be applied to pious causes, and grants another part to the debtor. This indeed is consonant with reason: for by force of the supreme power with which he is endowed, he can do everything that is truly useful for the salvation of souls; but when the question concerns uncertain goods, it is often expedient for tranquility of conscience that some composition be made: for this benefits the debtor, who, if restitution were omitted, would be situated in bad faith, - and also pious causes, which receive part of the debt, while otherwise perhaps they would have received nothing.

But what if afterward the true owner appears? There is no difficulty if the time for prescription has already elapsed, as will generally happen concerning movable things. But if the time has not elapsed, the debtor in conscience is not bound to restore that which in good faith he gave to the poor, except after the sentence of the civil judge; indeed, according to many, he is not bound, before the sentence of the judge, to render that which the Supreme Pontiff from a just cause had condoned; for the latter, in a case of doubt, has the right of transferring dominion from one to another, just as the civil power itself; nevertheless it is better to return this part to the owner, even before the sentence of the judge, if this can be done without grave inconvenience.

(b) As regards ecclesiastical goods usurped or illegitimately detained, the Supreme Pontiff, by force of high dominion, from a just cause has in fact condoned them several times, especially to Governments. From the Indult of September 21, 1907, the Ordinaries of France can admit to an equitable composition the buyers of ecclesiastical goods or other illegitimate holders, with the consent of those who canonically represent pious causes and of others having interest.