Article I. Introduction to the Disputation

155. The notion of restitution. 1. By the name restitution, from the proper force of the word, is signified some act of reintegrating, or of establishing again in the former condition.

Moreover, a twofold genus of restitution is acknowledged: of a person and of a thing.

2. The former, which directly affects a person, is someone’s reintegration into a state or into a right from which he had fallen. This is restitution in full (restitutio in integrum). Thus, by the favor of the prince, after the time limit for appeal or prescription has elapsed, someone even today, at least in canon law, is restored in full so that he can nevertheless appeal or proceed in court. Thus, by the favor of the law, a minor, after a damaging contract, is restored in full, so that he can disregard the contract. This genus of restitution is not now under discussion.

3. The other genus regards a thing which, on account of someone’s persisting right, must in some manner be returned to him. Hence, as Vásquez testifies, loc. cit., all agree with St. Thomas, here, art. 1, when he says: “To restore seems to be nothing other than to establish someone again in the possession or dominion of his own thing.” We consider this restitution alone.

Understood in this manner, in a broader sense every payment of a debt to be paid from justice is called restitution, as though the thing owed to another were already considered to be his.¹ The contract itself is then a certain root of restitution. Cf. Lessius, chap. 7, no. 20.

¹ C. de Lugo, disp. 8, no. 17.

In a stricter sense, it is “the return of that which has been taken away through an unjust injury, at least materially; the return, I say, of it either in itself or at least in an equivalent”;² or “the reintegration of damage injuriously inflicted.” C. d’Annibale, Summula Theologiae Moralis [Summary of Moral Theology], vol. 2, no. 195, 3rd ed.

² C. de Lugo, ibid.

4. Restitution differs from payment, of which it is a certain species; but in paying, formally, this alone is intended: that the prestation owed be made, not that another recover his own.

It also has a certain rationale of satisfaction, for in the broadest sense satisfaction is taken for any observance of a precept (C. de Lugo, loc. cit.). More precisely, however, satisfaction regards the person more, to whom it furnishes what is sufficient so that no reasonable cause for complaint arises or is preserved. Therefore satisfaction is made for an injury, and restitution for harm inflicted; properly speaking nothing is restored to God, since nothing can be taken away from Him, nor is restitution made for irreparable harm, while satisfaction is offered both to God and for irreparable harm. (Lessius, chap. 7, no. 18.)

156. The object of the disputation. Opinions. 1. We shall speak of four things: the nature of restitution, the virtue by which it is commanded, its roots, and its measure. Yet we shall join together the first two and the latter two objects, so that we divide the whole chapter into two parts.

2. Moreover, at present we attempt more to illustrate the truth than to settle a controversy, since only this one matter, and that formerly, fell into dispute: whether the obligation of restitution can flow from commutative justice alone or also from distributive justice.

St. Thomas does not appear to have touched this point, except that certain words by which, loc. cit., art. 1, reply to obj. 3, he tacitly acknowledges that restitution must be made by an inequitable distributor cause us some difficulty. And in truth Cajetan, loc. cit., Molina,³ and Vásquez⁴ contended that even he who had failed in the duties of merely distributive justice is bound to restitution: for by an inequitable respect of persons an inequality is introduced which must be removed through restitution; and therefore the distributor is bound by a personal obligation to repair the damage inflicted by his own fault.

³ Diss. 714, no. 1.

⁴ De Restitutione [On Restitution], chap. 1, nos. 6, 8; De Beneficiis [On Benefices], chap. 2, no. 117. We shall be less surprised at the opinion of Vásquez, since he appears to doubt whether distributive justice and commutative justice differ essentially from each other. Cf. on I-II, final diss., no. 54.

Yet the far more common opinion, even of Thomists, denies that an obligation of restoring flows from respect of persons as such. This will also be our position.

But when one comes to the reasons, such arguments are not rarely proposed as arouse a desire for a more efficacious argument. For most, with C. de Lugo, argue from the fact that you cannot restore anything on account of violated distributive justice: either from the common goods, since these already belong to private persons through distribution; or from the distributor’s own goods, since there is question of a common debt. But in this manner they do not appear to complete the matter or resolve the contrary reasons. For they suppose, but do not prove, that the attribution was valid despite the resistance of distributive justice; they suppose that the debt remains common, while the adversaries judge that the debt, no less than the sin, has been made proper to the inequitable distributor.

Therefore, the common argument appears to require some polishing.