§ 1. The Nature of Restitution and the Virtue by Which It Is Commanded

Restitution is always an act of commutative justice,¹ and its obligation proceeds solely from violated commutative justice.

¹ St. Thomas, II-II, q. 62, art. 1.

157. The state of the question. 1. THE INTENTION OF THIS PART. In this thesis we defend a twofold position. First, we propose that restitution as an act always pertains to commutative justice, so that, from whatever source the obligation of restoring arises, it is satisfied through an act of commutative justice. Then we establish that the remote or generic source of the obligation is some violation of commutative justice, while denying at the same time that this duty can have its origin from another virtue.

2. THE TERMS ARE EXPLAINED.

Restitution, strictly taken for the return of that which has been unjustly taken away.

Is always an act of commutative justice. He who restores therefore exercises this justice; he who omits the restitution owed violates it.

Its obligation, insofar as it is confirmed by the law of nature. For it can also arise from law or compact.

From violated commutative justice. We will it to be violated in such a way that someone has formally suffered what is unjust (cf. no. 145); that is, we understand that objective injustice which someone unwillingly sustains.

Proceeds solely. The meaning, therefore, is not that this obligation is introduced through every violation of commutative justice, but through at least some violation (in the other part we shall say which one), and not through any violation of another virtue, reduplicatively. For commutative justice can be violated together with distributive justice.

158. II. PROOF.

1. Restitution is always an act of commutative justice.

An act in which the equality of justice is considered according to the comparison of thing with thing pertains to commutative justice alone (cf. no. 68).

But. This occurs in restitution. For this is intended through it: that whatever amount someone has less than what according to justice he ought to have, that much he now recover. Therefore. St. Thomas, art. 1. Cf. Molina, disp. 714, no. 1; Vásquez, loc. cit.

2. The obligation proceeds from violated commutative justice.

a) FROM SCRIPTURE. Ezekiel 33:14–15: “If ... that wicked man restore the pledge, and render what he had robbed ... he shall surely live, and shall not die.” Here the conditions necessary for the wicked man to obtain mercy are enumerated; among these restitution is placed. Cf. also Tobias 2:21.

This is confirmed from canon law, where canon 1, Si res aliena, Causa XIV, q. 6, contains these words: “If another’s property, on account of which the sin was committed, is not returned when it can be returned, penance is not performed but feigned.” And the words of St. Augustine² are cited, which were made Rule of Law 4 in the Sext: “The sin is not forgiven unless what was taken away is restored.”

² Epistle 153 to Macedonius (Migne, Patrologia Latina, vol. 33, col. 653).

b) FROM REASON.

Before we propose the argument, we wish this to be noted by readers: temporal things are returned perfectly in their proper species or body, but imperfectly—unless they are fungible—yet truly, in an equivalent. This is manifest in just exchanges, where neither is judged despoiled when each has exchanged his own thing for an equivalent. With this observation made, we argue thus.

Often, through a violation of commutative justice, someone’s thing as his own is injuriously taken away from him.

But. Where this has occurred, commutative justice obliges one to the restitution of the thing in its proper species or, if this cannot be done, certainly in an equivalent.

Therefore. An obligation of restitution often arises from violated commutative justice.

The minor is proved. For restitution is an action by which, insofar as it can be done, the thing taken away returns to him from whom it was seized, or by which the goods of him who suffered a damaging injury are reintegrated. We add: insofar as it can be done, because it happens that the proper body of the thing has perished, whether another equivalent thing represents it or it was merely consumed or destroyed.

But. Where a thing which was someone’s own is injuriously taken away from him, commutative justice commands that both actions in which restitution is contained be performed.

Therefore. Where this has occurred, commutative justice obliges one to restitution.

This latter minor is proved thus:

Commutative justice, which commands that his own things be preserved for each one, cannot sanction or hold ratified the objectively unjust taking of one’s own thing which someone formally suffers. Hence it follows: a) That the thing seized, insofar as it subsists in itself or in an equivalent, remains in the dominion of him from whom it was seized: the thing cries out for its owner; and it also follows, b) That the injured person has less than, in the name of commutative justice, he ought to have from him who by a formally injurious action inflicted a loss of fortune upon him. For from this man, as from anyone else, he ought to have his things intact. But he does not have them intact until the things have been reintegrated insofar as can be done.

But. Commutative justice commands that the thing which has remained the owner’s own be rendered to the owner, and that each person furnish to another as much as he owes in the name of the same justice.

Therefore. Commutative justice commands both things which we stated to be done.

N.B. Observe that by this rationale the obligation of restitution is already demonstrated in two ways: one real, from another’s persisting dominion over some thing; the other personal, from the obligation not to injure another in his goods.

3. The obligation of restitution does not arise from another violated virtue.

The brief rationale is that no one is deprived of his own thing by the violation of another virtue.

But. Where no one is deprived of his own thing, an obligation of commutative justice does not arise, and consequently neither does an obligation of restitution, since it is established from the first member that restitution is an act of commutative justice. Therefore.

To the major. Virtues distinct from justice are not concerned with a thing which is owed to another, that is, with what belongs to another. No question can be raised concerning legal justice, since it urges the act of another virtue, whose rationale it will consequently suffice to consider.³ As regards distributive justice, if you conceive the right to an equitable distribution after the manner of a right to a thing (ius ad rem), such as is had from a contract of promise, you will certainly perceive no reason for denying an obligation of restitution. But this notion is foreign to the truth. For from a contract we are obligated by commutative justice, while the right which belongs to a citizen to a share of common goods neither rests upon an immediate connection of the things to be distributed with the citizens, nor places in the distributor an office of commutative justice. Cf. nos. 7, 8.

³ Cf. above, nos. 44, 50.

This, I say, is a sufficient brief rationale. Yet it is useful to confirm the assertion by an argument which pertains more to distributive justice, concerning which alone doubt can arise.

An obligation of restitution is proved only from this: that someone possesses a persisting right to a thing unjustly withdrawn or denied to him, or that justice does not hold ratified an inequitable usurpation or attribution of the thing. Cf. the rationale given here above, no. 2. Moreover, if no right is established, whence do you have an obligation of justice?

But. A citizen does not have a persisting right to a thing badly distributed; but commutative justice, after the fact, holds ratified the attribution of a common thing which distributive justice forbade before the fact.

Therefore. The obligation of restitution falls together with its foundation.

To the minor. This proposition causes no difficulty if you recall what was said at the beginning (nos. 7, 8) concerning the specifically proper manner in which a citizen can call those things which belong to the community his own. The relation of things of this kind to him is mediate; nor does it remove the immediate possession of the thing by the community. But from that immediate possession it is validly argued that dominion over the thing was transferred even though the inequitable distributor sinned (provided that he did not exceed the limits of the power committed to him): for this is the force of the right of dominion, that according to the owner’s will this right can efficaciously be yielded to another. From the relation which is only mediate it is rightly argued that no right to having the thing persists in the citizen who did not obtain what an equitable distribution would have brought him. For the right which was to the thing as common is no longer terminated at a thing which has become someone’s private possession. Certainly, if the distributor had observed the rules of a just distribution, several citizens would have acquired certain things which they now lack: they have suffered what is unjust, yet not that which is contrary to commutative justice; nor did they suffer loss to their own property any more than a son who does not obtain from an undutiful father the many things which otherwise he would have made his own. Cf. below, no. 159, at the end.

159. III. DIFFICULTIES.

1. RESTITUTION IS NOT ALWAYS AN ACT OF COMMUTATIVE JUSTICE.

For if someone, after an inequitable distribution of common goods has been made, corrects the defect by supplying what he had given too little, he at once restores and exercises an act which belongs to distributive justice (St. Thomas, reply to obj. 3). Therefore.

Reply. I divide the antecedent. If he corrects the defect by supplying from his own goods, then he distributes, I deny; he restores, I subdistinguish: insofar as commutative justice perhaps was also violated, I concede; otherwise, I deny. If he corrects it by supplying from the common goods, then he restores, I deny; then he makes a new distribution, I pass over.

Therefore, formally he does not perform both at once.

It can also be answered in this manner, with St. Thomas here, reply to obj. 3—

By supplying what he owed, he distributes formally, N. For he attends to this: “That as much more be given to the other as he had less than he ought.” Compensation therefore occurs by comparing thing with thing; and hence it pertains to commutative justice. Cf. C. de Lugo, disp. 1, no. 54.

2. THE OBLIGATION OF RESTORING DOES NOT ARISE FROM VIOLATED COMMUTATIVE JUSTICE. For:

a) The act of injustice and the consequent suffering are transient. But. Restitution supposes the permanence of the injustice. (What has passed cannot be repaired.) Therefore. Restitution is not made on account of an act of injustice. (St. Thomas, art. 1, reply to obj. 2, and art. 2, reply to obj. 3.)

Reply. Distinguish the major. That action and suffering are transient, but they remain in their effect—whether in one’s own thing which has come to another, or in bodily injury, diminution of reputation, etc., C. Otherwise, N. Contradistinguish the minor.

N.B. The other things which St. Thomas here (art. 2) objects to himself are easily resolved, and pertain rather to explaining both by what rationale restitution can be made on account of injury to the body, reputation, or honor (replies to obj. 1, 2, 3)—where you should retain in memory the principle (reply to obj. 1): “It suffices that what is possible be recompensed”—and how he can be bound to restitution who prevents another from obtaining a good (ibid., reply to obj. 4).

b) Christ the Lord (Luke 11:37–41), after He had reproached the Pharisees concerning robbery and iniquity, adds these words: “But yet that which remains, give alms; and behold, all things are clean unto you.” Therefore. Alms alone are necessary for salvation after a sin against commutative justice.

Reply. Christ spoke thus, having obtained an opportunity to recall that precept, C.; as though alms alone supplied for all other things, N.⁴

⁴ “But yet that which remains, give alms,” in Greek πλὴν τὰ ἐνόντα, is understood by most today in this manner: “Rather, give as alms those things which are within (the cup, the dish), and behold, all things are clean unto you,” that is, you will attain true cleanness, both internal and external. According to this interpretation, the food and drink set before the guests are employed as examples of things which are to be bestowed upon the poor.

Others still favor the interpretation of Theophylact and Tertullian, who render τὰ ἐνόντα as “the things which you have, your goods.” Some translate: “Of those things of which there is abundance, according to your means.” Cf. Knabenbauer, on this passage.

Perhaps the expression τὰ ἐνόντα could be taken as an accusative of specification, so that the sense would be: “Rather, as regards interior cleanness, give alms; and you will be clean not only inwardly but also outwardly.”

Cf. Molina, disp. 716; C. de Lugo, disp. 8, no. 24.

For the Pharisees, who were accustomed to indulge avarice and were wholly occupied with frequent external and almost superstitious washings, had particularly to be admonished concerning good works,⁵ by which they might correct their vice and obtain from God the grace of repenting and attaining that interior purity of soul which they esteemed less. But sincere repentance contains the will to fulfill the connected obligations, and hence to restore what was unjustly taken away.

⁵ Not rarely in Sacred Scripture, alms stand for a good work in general.

c) There is no obligation of restitution when the creditor’s remission is prudently presumed. But. This is prudently presumed when, from charity, the creditor ought to subordinate his own temporal loss to avoiding the spiritual ruin of his neighbor. Therefore.

Reply. C. the major. Deny the minor. And to the rationale, distinguish.

He ought to do this when his neighbor cannot avoid that ruin by himself, C.; when the neighbor’s malice must be blamed, subdistinguish: in extreme necessity, C. or Tr. (On this elsewhere); in common necessity, N.

As C. de Lugo well observes, neither does this remission cause the neighbor who wills not to restore to escape fault. For the depraved affection of the soul stands in the way. Therefore the supposition must also be denied; or it must be required that each person make his things common lest a sin of theft be committed. (Cf. C. de Lugo, loc. cit.)

3. THE OBLIGATION OF RESTORING ALSO ARISES FROM ANOTHER VIOLATED VIRTUE. For:

a) He who omitted a duty of charity, piety, or obedience is often afterward obligated by these virtues to perform the same work which he omitted. But. This appears to be restitution. Therefore. Commutative justice alone does not impose this obligation.

Reply. Distinguish the major. Because, while the same necessity or the same precept of the superior persists, someone is urged as though the obligation were now first beginning, C.; by way of compensation which, without a new cause, is owed from the prior fault, N. Contradistinguish the minor. Yet, of itself, in the other virtues, “once that occasion has passed, the motive which such a virtue regarded does not persist.” C. de Lugo, disp. 1, no. 52.

b) At least the violation of distributive justice establishes a present title to restitution. And indeed:

α) Although before the distribution and in the distribution itself, each person’s portion is owed to him from distributive justice alone, because it is a common debt, the damage inflicted through an unjust distribution now becomes the distributor’s personal debt, to be extinguished by restitution (Vásquez, chap. 1, no. 8, from Cajetan). Therefore.

Reply. I divide the antecedent. “The damage inflicted, etc.,” deny the supposition that damage is properly inflicted: for someone properly suffers damage with respect to his own things.⁶ “Becomes a personal debt,” distinguish: a debt of penalty (at least in relation to God), C.; a debt of a temporal thing toward him who was passed over, N. This would have to be proved.

⁶ “Damnum and damnatio are said from taking away and a kind of diminution of one’s patrimony.” Law 3, Digest, De damno infecto [On Threatened Damage] (XXXIX, 2). As is evident, we always consider the matter in relation to the person who was passed over: for toward the commonwealth, the bestower of an office is bound by commutative justice to choose at least one who is fit. Cf. no. 71.

Instance. Even he who violates distributive justice violates another’s right. Therefore. He contracts toward the injured party a debt of repairing the violated right; this is a debt of a temporal thing.

Reply. I deny the supposition. The obligation of restitution does not arise on account of a violated right, but on account of the consequent inequality against a persisting right. Cf. the explanation given in the demonstration itself, and Molina, disp. 715, no. 6.

Violation of a right of itself merely expresses a certain rationale of sin, to which the sanction of penalty corresponds, but not restitution.

Instance. An inequality is also introduced through the violation of distributive justice. But. Justice commands that this be repaired. Therefore. (Thus, more or less, Vásquez.)

Reply in two ways. 1) As C. de Lugo, disp. 1, no. 53. C. the major. Distinguish the minor. We are commanded by justice to repair an inequality which can be repaired, C.; the other, N.

But this one cannot be repaired. For through restitution, if it is made from the distributor’s goods, the injured man receives nothing from the common goods, which consequently remain inequitably distributed; while restitution cannot be made from the common goods, since these have already been validly acquired by the citizens, as we proved in no. 158.

2) Distinguish the major. An inequality is introduced together with a persisting right to the goods which ought to have been received, N.; without such a right, C. Contradistinguish the minor.

β) He who was unjustly passed over has, from the inequitable omission itself, a title to receive compensation in a new distribution. Therefore. If he obtains anything, it will assume the rationale of a certain restitution.

Reply. Insofar as this omission partly establishes a present worthiness on account of which, formally, for example, a public office is conferred, C.; insofar as compensation for the omission would be the formal and sufficient rationale, N. For if, after a badly made distribution of offices, the candidate who had been worthier becomes less capable because of sickness or old age, nothing now remains for him to expect.

γ) He who in a distribution obtained the portion which belonged to a worthier person appears to retain another’s property, or that which belongs to the worthier person. Therefore. Restitution must be made to the worthier person.

Reply. Deny the major. For what was owed to the worthier person merely from distributive justice became, after the attribution, the property of the less worthy person.

Instance. What someone receives without right, he receives invalidly. Therefore. That property is fictitious.

Reply. Distinguish the antecedent. What someone receives without right, that is, with injury to another, or without a title of acquisition, he receives invalidly, C.; without right, that is, without a title from distributive justice, but nevertheless without injury and with a title fit to transfer dominion, he receives this invalidly, N.

For nothing of itself prevents him who is undeservedly preferred from validly acquiring the portion of the common good attributed to him. No private person’s right prevents it, for no one presently possesses any right in the thing itself; nor does the community’s right to retain the thing, since it must be distributed; nor does the requirement of the common good, which rather demands—lest several goods be left with an uncertain owner, and lest all things in society be unsettled—that bestowals of common goods and offices be valid when made by one possessing the faculty, even if he neglected the rules of distributive justice. Besides, no one has ever doubted the validity of an attribution once made.