§ 2. The Roots of Restitution and the Norm of Its Amount

The root of restitution is twofold: another’s thing accepted, and its injurious acceptance.

Moreover, the amount to be restored is defined in the former case by the amount of another’s thing which you retain in its proper species or in an equivalent; in the latter, by the amount of the damage which you voluntarily inflicted.

Cf. St. Thomas, II-II, q. 62, arts. 3, 4, body and reply to obj. 1, art. 7.

160. I. The state of the question. 1. THE SENSE AND PURPOSE OF THIS CONCLUSION.

We demonstrated that the obligation of restoring remotely derives its origin from violated commutative justice; it therefore remains to inquire into the very causes from which the obligation of restoring proximately arises; in other words, by what rationale commutative justice must be violated so that there may truly be a place for that compensation.

Now, by the present proposition we contend that this rationale is twofold: the one material, the other formal; namely, another’s thing accepted and its injurious acceptance. But because the effect must be measured by the cause, we add at the same time that, from the former root, the amount to be restored must be determined after the manner of another’s thing which you have; from the latter, after the manner of the damage which you willingly inflicted upon another.

This appears, as is evident from the passages cited, to be the doctrine of St. Thomas, with whom the doctors commonly agree, such as Molina, vol. 3, disp. 717 ff.; C. de Lugo, disp. 8, no. 25 (as regards the roots); Ballerini-Palmieri, vol. 3, part 2, no. 107; etc.

2. THE TERMS ARE EXPLAINED.

The root is twofold. We call a root the fact from which the obligation of restoring proximately arises, and which consequently is its measure.

We employ the word restitution in the strict sense, “for the act by which, from justice, something is rendered in recompense for that in which someone has been defrauded unjustly, materially or formally,”¹ and not for every act by which that which is owed from justice is rendered.

¹ Molina, disp. 717, no. 1.

Otherwise, as was said, contract would have to be added as a third root, and perhaps other things as well. Cf. Molina, disp. 717, no. 2.

Another’s thing accepted: This obtains whenever, from whatever cause, honorable or not, another’s thing exists with someone, without the owner’s consent, and he has thereby become richer.

And its acceptance, formally, is injurious. This expression is understood in a broad sense, whereby “within its scope it comprises the unjust usurpation of a thing, the unjust infliction of damage, and the unjust retention of a thing owed to another”;² or, more briefly: any unjust infliction of damage.³ For “whoever causes damage to someone appears to take away from him that in which he damages him,”⁴ so that an unjust infliction of damage can be called an injurious acceptance of a thing.

² Molina, loc. cit., no. 1.

³ C. de Lugo, loc. cit., no. 25.

⁴ St. Thomas, art. 4, body.

Moreover, the amount to be restored is defined in the former case by the amount of another’s thing which you retain in its proper species or in an equivalent. For not rarely the place of the thing which perished is held by the price received, the profit made, or the saving of one’s own good, etc. Casuists must be consulted concerning the various cases.

In the latter, by the amount of the damage, that is, of the detriment brought upon another’s patrimony.

Which you voluntarily inflicted, that is, with theological fault. What if this was light? We shall touch upon the matter very briefly in the scholium.

N.B. We speak while leaving aside contract or positive law, by which someone can be obligated, for example after the sentence of a judge, to repair damages inflicted from merely juridical fault.

161. II. Proof.

N.B. The former part is already evident from the manner in which we made the obligation of restoring proceed from violated commutative justice. For the twofold root corresponds to the twofold obligation of restoring which was proved there. Cf. N.B., p. 166.

1. That root is twofold. As many as are the rationales by which an undue inequality is introduced, so many will be the roots of restitution. We call an inequality undue when it is opposed to a right which one presently possesses, and consequently to the present duty of another.

But. Both have been stated. Therefore.

The major is evident, because restitution must be made for this reason: that someone has less than he ought to have. (Cf. St. Thomas and the preceding thesis.)

To the minor. Indeed:

a) Both because his thing has come to another and because he suffers damage from another’s injury, someone has less than he ought presently to have by his own right. Nor does it stand in the way that, from this latter root, it frequently happens that he who ought to restore is compelled to take from his own goods, so that he thereby suffers detriment and himself has less than before. For this diminution of his own patrimony occurs without injury to anyone and introduces no undue inequality. Hence it cannot stand in the way of the obligation of repairing the damage. Just as from your own goods you are bound to make provision for health and the necessities of the physical order, so also for the moral obligation of observing another’s rights. To use other words, the obligation flowing from this root is personal to him who is guilty of the injury. But it is a perpetual principle that you ought to fulfill your personal obligations from your own goods.

b) There are no other causes: not the injury of one who consents, or an injury without harm, since they introduce no inequality; nor harm that is inculpable theologically, since it introduces no undue inequality. For the order of justice is part of the moral order; but indeliberate acts are outside this order. Hence commutative justice sanctions this one thing: that each person have his own goods, insofar as this depends upon a voluntary human deed.

2. Concerning the amount to be restored. When the cause ceases, the effect ceases.⁵

⁵ Cf. above, no. 143, argument 2.

But the former cause operates only concerning a thing which, and insofar as it, is detained by another without right; but once restitution has been made of another’s thing which was possessed in its proper species or in an equivalent, no thing of another is now detained by another without right. Therefore.

As regards the latter cause: the whole damage which you voluntarily inflicted manifests that which you had injuriously accepted from another (as we now employ those words in the broader sense), or that which you owe.

162. III. Difficulties.

1. Someone can suffer damage even from another’s deed which is not injurious, and consequently can be situated in an inequality. But. Inequality must be repaired through restitution. Therefore. This is a third root.

Reply. Distinguish the major. To suffer damage such that an undue inequality is introduced, N.; an inequality in the broader sense, or a diminution of fortune, C. Contradistinguish the minor.

Undue inequality alone must be repaired by restitution. Not everyone who has less than before has less than he ought. How many causes there are by which goods of fortune are lost, and which furnish no just complaint against anyone! Come now, this one thing must be considered here: does someone have less than he ought, or than belongs to him from commutative justice, or otherwise?

2. When the cause is culpable, the whole damage arising from the injury appears to require compensation, and not merely that part which is in some manner voluntary. For the whole appears to be contained within the scope of that cause.

Reply. Distinguish. Often, then, this will be the material rationale of the amount, C. That it will ever be the formal rationale, or always the material rationale, I deny. And contradistinguish the minor.

For no one commits an injury unless willing it (St. Thomas, II-II, q. 59, art. 3). Therefore, if any part of the consequent damage was in no manner voluntary, this does not pertain to the formally unjust acceptance, and consequently is not to be compensated under this title.

By these two replies we appear to have touched upon the principal difficulties which can be opposed to our thesis.