Article III. Supplements to the Doctrine

163. The mind of St. Thomas. Although St. Thomas is silent concerning the question whether the obligation of restoring arises from violated commutative justice alone or also from the violation of distributive justice, the doctrine which we defend appears to be so firmly established upon the principles which the Holy Doctor delivers throughout the entire disputation on Restitution that it can scarcely be doubted that we have answered according to his position. This will be most evident to one who considers the rationale of our demonstration.

The difficult passage in q. 62, art. 1, reply to obj. 3, is explained suitably enough if you suppose that St. Thomas is treating of a distributor who at the same time—as frequently occurs—violated commutative justice.

164. Comparison of the two roots. The former root gives rise to a real obligation: insofar as you possess another’s property; the other, a personal obligation: insofar as you have sinned against another. In both cases there is question of correcting an undue inequality; but in the former, it is undue with respect to all who detain the thing; in the latter case, with respect to him who inflicted the injury.

Yet the one root does not exclude the other. And this is the difference between him who makes a profit from an injury and him who makes no profit: the former is obligated to restore for a twofold rationale, the latter for only one. St. Thomas, art. 6, body.

165. Concerning error about the person upon whom damage is inflicted. The fault of injustice, or injury as such, is not the root of restitution, but the inequality introduced by it on the part of the thing.¹ Hence, if someone, erring about the person, should inflict damage upon the goods of Titus, which he thought were those of Caius, although he was not formally injurious to Titus, he appears to us, as common sense cries out, to be bound to restitution toward Titus. For as soon as you bring detriments upon the goods of another who is unwilling, by whatever name he may ultimately be called, in fact you necessarily— you contract an obligation of furnishing an equivalent in exchange. We shall state it briefly thus: that error removes the personal offense, or injury, which, moreover, is not repaired by restitution; it does not remove the voluntary acceptance of some other person’s thing. While thinking himself injurious to Caius, he knows at the same time that he is usurping the thing of some other unwilling person; nor was he mistaken in this.² Cf. Molina, treatise 3, disp. 30; Ballerini-Palmieri, Opus morale [Moral Work], vol. 3, part 2, from no. 250 to no. 267, against C. de Lugo, disp. 17, nos. 75–76, and St. Alphonsus, bk. 3 (elsewhere 4), no. 628, whose authority, nevertheless, we have no thought of diminishing in the least.

¹ St. Thomas, q. 62, art. 3; Molina, disp. 715, nos. 5, 6.

² And in this the difference is apparent from him who, during a brawl, beyond his intention wounds or even kills the mediator. For this action was involuntary even as the wounding or killing of a human being; that external action was wholly beyond the intention.

166. Restitution in another species is imperfect, since the owner does not recover the proper body which he possessed, nor did he consent to the exchange. There is therefore a certain part of the damage which is then not repaired, because it cannot be repaired.

167. Concerning uncertain debts. Very noteworthy, as seeds of many resolutions, are the words which St. Thomas has in q. 62, art. 6, reply to obj. 1: “Restitution is not principally ordained to this, that he who has more than he ought should cease to have it, but to this, that what is lacking to him who has less should be supplied; hence, in those things which one person can receive from another without detriment to the latter, restitution has no place.”

But from this someone will ask why theologians “all agree that those things which are owed from an unjust acceptance are to be rendered to the poor if the owner or his heirs are not found”;³ in what manner, in other words, they oblige him who has become rich from a formal injury to substitute the poor in the place of the owner to whom restitution cannot be made, because, for example, it is unknown which one among many he is.⁴

³ C. de Lugo, disp. 6, no. 134.

⁴ For if the doubt is confined to a few, the thing is to be divided among them.

In truth, the doctors are accustomed to differ more concerning the motive than concerning the conclusion.

For some argue from natural law, others from the law of nations.

1. Among those who appeal to natural law, many, with St. Thomas,⁵ assign the thing to the poor, because, when the owner is wholly hidden or is so absent that the thing cannot morally come into his hands, the only manner of restoring which remains would be that the thing be converted into alms which would bring spiritual utility to the owner. Yet this position has already been rejected by Lessius;⁶ and it appears that it must be abandoned chiefly for this reason: that the thing cannot remain in the patrimony of him who is cast down from every hope of recovering it. For dominion of ownership cannot be conceived where there is no faculty of using or disposing, not even in hope.

⁵ II-II, q. 62, art. 5, reply to obj. 2.

⁶ Chap. 14, no. 35 ff.

Others, therefore, with whom Rev. Fr. Lehmkuhl agrees,⁷ judge that restitution to the poor is commanded on account of the common good of human society. But although it is sufficiently easy to understand that nature positively opposes an appropriation which, by favoring thieves and robbers, would be contrary to the common good itself, we perceive less clearly why the thing must be bestowed upon the poor, and why it would not suffice for justice that the unjust possessor cast the thing away from himself, for example, by throwing it away.

⁷ Vol. 1, no. 1022.

2. Hence we are not wholly averse to the position which ascribes the obligation to the law of nations, at least of Christian nations, perfecting that which nature desired; and which, on account of the evident utility of society, extends the canon law whereby, even when the injured person is unknown, illicit usuries and the profit made from an office obtained simoniacally are said to be restored to the poor.⁸ This already pleased Vásquez,⁹ Lessius, loc. cit., Laymann,¹⁰ St. Alphonsus,¹¹ and is sufficiently proved by Ballerini,¹² and is held as more probable by Génicot, vol. 1, no. 552.

⁸ Chapter Cum sit nimis, 16 X, De Iudaeis, etc. [On the Jews, etc.] (bk. 5, tit. 16), and chap. Cum tu, 5, De usuris [On Usuries] (bk. 5, tit. 19).

⁹ Opusculum de restitutione [Short Work on Restitution], chap. 5, §4, doubt 1.

¹⁰ Theologia moralis [Moral Theology], bk. 3, treatise 2, chap. 9, no. 2.

¹¹ Bk. 3 (elsewhere 4), no. 589.

¹² Opus morale [Moral Work], treatise 8, part 2, chap. 2, no. 186.

This position is confirmed because the faculty which the Holy See employs to remit an obligation of this kind is more easily explained through it. It also then appears clearly why he who possesses without fault a thing whose owner is uncertain can safely retain it for himself, since no argument from the common good or from a positive disposition of law can be urged against him.

3. Yet these things are explained with equal ease by a third form of the argument, not dissimilar to the rationale of St. Thomas, which we judge is to be preferred. It is of this kind:

He who is guilty of a formal injury is obligated, not only as a possessor of another’s thing, to restore it, but is bound in addition by a personal obligation to repair the damage according to his powers. For the root of restitution is twofold (no. 160).

Come now, a thing whose owner is entirely uncertain can be regarded as a thing belonging to no one (res nullius); and hence it can safely be occupied by him who obtained it without fault.

But if you possess the thing from an injury, that personal obligation of restoring nevertheless persists. Through your fault it occurred that another lost dominion over his thing. Therefore you ought to repair this damage to him by restoring the value.¹³ Nor is it less evident that an obligation of this kind is fulfilled if you make that use of the thing to which the injured person is not reasonably unwilling. For we saw in no. 150 ff. that this usurpation even of another’s thing is not opposed to justice. Hence we argue thus:

¹³ Is it not the case, for example, that if you burn another’s forest, his dominion is lost, and you are nevertheless bound by an obligation of restitution? For what reason? Because another title of restitution can be urged against you which cannot be alleged against one acting in good faith. Similarly, in the present case, the loss of the thing by its former owner frees the possessor in good faith, but by no means the other.

He who is guilty of an injury is bound to restore in that manner which alone is available. But. This manner is an attribution made to the poor or to a pious work. Therefore.

And the minor is proved. a) That attribution is a manner of restoring. For he who cannot recover his thing or its equivalent price is not reasonably unwilling that the thing or the price be applied to the poor or to a pious end. b) It is the only manner of restoring. For he is rightly judged unwilling that either his goods be prodigally scattered or the person who possesses them in bad faith profit from them. Therefore.

But if this is the rationale, even an unjust damager who did not profit from another’s property is bound, when the injured person is lacking, to restore to the poor.

168. The necessity of making restitution is not a necessity of means but of precept, as all now acknowledge. For no other power is present in restitution for effecting justification and salvation than that which is commonly possessed by every precept. Of itself it contributes nothing positively necessary for salvation, but merely removes the obstacle of sin. Cf. Carrière, no. 1028.

169. Concerning the necessity of distinguishing the two roots. There are some who think that both roots of restitution can be reduced to one, namely, unjust acceptance, relying upon this rationale: that he who knowingly retains another’s thing now accepts it unjustly. But less suitably, as it appears to us. For:

a) The inequality which arose from an honorable act and that which flows from a formal injury are formally dissimilar; and

b) They differ no less in their consequences as regards the amount to be restored and the excuses.

Furthermore, to answer the rationale alleged, if someone, immediately upon becoming aware of another’s thing possessed by him, relinquishes it, at no instant did he owe anything from unjust acceptance (by restitution he forestalled this cause); but he who delayed restitution without right is now bound from both causes, as is elicited from St. Thomas, II-II, q. 62, art. 6, body. Hence we wholly approve Molina, vol. 3, disp. 717, no. 1, when he affirms that both roots “are especially to be kept before the eyes of the mind in the matter of restitution.”

170. You will ask whether the obligation of restitution is positive or negative.

The obligation of restoring is founded upon the negative obligation not to violate another’s right to preserve his own things.¹⁴ But from this many, after C. de Lugo,¹⁵ contend that the obligation itself is negative. We prefer, with Lessius¹⁶ and Rev. Fr. Palmieri,¹⁷ to hold the answer which a first consideration of the matter suggests, and to regard it as affirmative. For in order that it be fulfilled, it of itself requires a positive act of rendering; and this plainly accords with the notion of an affirmative precept handed down by Suárez.¹⁸ But C. de Lugo himself must pass over to our camp sufficiently openly in order to escape various difficulties, for example, that you are excused more easily from restitution than from a negative precept. Cf. C. de Lugo, disp. 13, nos. 49, 50.

¹⁴ St. Thomas, art. 8, reply to obj. 1; Molina, disp. 716, no. 4; Lehmkuhl, vol. 1, no. 941.

¹⁵ Diss. 8, no. 8.

¹⁶ Chap. 7, no. 49.

¹⁷ Opus morale [Moral Work], treatise 8, part 2, chap. 2, no. 108.

¹⁸ De legibus [On Laws], bk. 2, chap. 10, no. 1.

171. You will ask what obligation of restoring is produced by grave damage unjustly inflicted upon another, but with theologically light fault.

Some, with Molina,¹⁹ oblige one to repair a part proportionate to the fault; others, such as certain more recent authors, oblige one to repair the entire damage under grave obligation; Vásquez²⁰ also defends the obligation of compensating the whole, but is silent as to whether it binds under grave obligation; the most common position denies that there is a grave obligation.

¹⁹ Diss. 698, no. 7.

²⁰ De restitutione [On Restitution], chap. 2.

But the position of Lessius²¹ and C. de Lugo,²² who deny even a light obligation, is more pleasing. The rationale is that nature, where it itself defines the whole and nothing is changed by the free will of a legislator or of those making a compact, wills an obligation which is accommodated to the matter; and, from another consideration, venial fault is unequal to producing a grave obligation. Imperfect deliberation or lesser advertence, just as it removes the voluntariness required for a grave vow or contract and does not produce a light obligation of fulfilling it, is likewise practically nothing in relation to inducing the grave burden of restitution.

²¹ Chap. 7, no. 28.

²² Diss. 8, no. 50.

And would it not, as Lessius says, be very pitiable for a man to be obligated throughout his whole life, for example, to a thousand thousand francs, unless he should prefer to remain guilty of venial sin?

171bis. You will also ask whether or not the power of an intention to inflict damage can be so great that, on account of it, an action becomes unjust and introduces a debt of restoring.

This is a celebrated question, to which many respond by denying that efficacy of the intention. Indeed, it is more commonly thought that no obligation of restoring arises from the intention of inflicting damage which would not otherwise have existed. Yet at the same time, most authors, when they inquire concerning the obligation by which the losses that creditors suffer from the killing of a debtor must be repaired, command him who killed with the intention of harming them to restore, but by no means him who, led by another intention, committed the homicide even though the damage to the creditors was foreseen.²³ St. Alphonsus, bk. 3 (4), no. 633, thinks entirely in this manner.

²³ Cf. Lehmkuhl, Theologia moralis [Moral Theology], vol. 1, no. 901. Yet he himself is consistent with himself.

With C. de Lugo, De Iustitia et Iure [On Justice and Right], disp. 8, sect. 6, and disp. 18, nos. 98–101, we hold the position of those affirming, yet employing a certain distinction by which our position is at once tempered and illustrated.

For among actions, some merely contain the exercise of a right or have within them no true power of effecting damage; through others, by contrast, true efficacy toward another’s damage is exercised.

Therefore, an action by which you exercise your right cannot be rendered objectively injurious by a perverse intention. Hence he is not guilty of injury who, from hatred, brings a just lawsuit against someone, or from hatred pronounces a just sentence against him. Nor can an evil will take the place of causality.²⁴ Hence, he who has merely given an example of inflicting damage, which others imitated and thereby also inflicted damages, will not have to repair those damages, although he knew and willed the efficacy of his example. For by the example alone you cannot be either physically or morally the author of such damage. But where you exercise physical causality toward another’s damage, that is, where the physical efficacy of your action, sufficient from the circumstances, deprives another of his right or his thing, or brings detriment upon another’s things, it can occur that, according to the varying intention, an obligation of restitution is or is not produced.

²⁴ Cf. St. Alphonsus, bk. 3 (4), no. 584.

For, as we said in the first part of the Questions,²⁵ per se, as widely as the foreseen efficacy of my causality extends “in the concrete,” so widely does the moral imputability of the effects extend. This imputability, indeed, in order that it be human, is circumscribed by effects which are not too remote, and is also removed on account of the excellence of the good intended, as was explained in the same place. But it is not inhuman to prohibit me from willing, from an intention to inflict damage, even a remote effect; and it is no less evident that, where the intention was to inflict damage, an excuse sought from one’s own good wholly fails. Therefore there is then no rationale why an effect which is truly mine should not be imputed to me. Nor should you say that, on account of my intention, a closer connection between the effect and the action is not introduced. For a connection sufficient of itself for the effect to be imputed is present, provided that it does not bind men with excessive solicitude. Nor should you add that, without a violated right, there is no root of restitution. For from what has been said, it is sufficiently evident that there are rights which can be expressed thus: There is a right that such a thing not be done from an intention to inflict damage. Nor, finally, should you object that external juridical relations cannot be affected by internal intentions. For intentions which inform external actions must not rarely be inferred in the external forum. And, aptly for our matter, in Roman Law, Digest, law 2, De aqua et aquae pluviae arcenda [On Water and the Warding Off of Rainwater] (XXXIX, 3), this is adduced from Paul: “The same Labeo says that if a neighbor diverted a river or torrent so that water would not reach him, and in this manner it came about that harm was done to his neighbor, an action for the warding off of rainwater cannot be brought against him.... This opinion is the truer one, provided that he did not do it with this intention, that he should harm his neighbor, but lest he should be harmed himself.”²⁶

²⁵ Questions on Human Acts, where the double effect is treated.

²⁶ It is evident that this example is adduced by us for the purpose of showing that the efficacy of intention is acknowledged, and not as though we approved the example itself.

Moreover, unless you concede our position, you will arrive at these remarkable consequences. Caius wills to confer a benefit upon Titus in a certain place. Indeed, being hostile to Titus, I determine to prevent it. It suffices if, by force or fraud, I prevent Caius from being in that place in the presence of Titus. I will accomplish this equally whether I prevent Caius or Titus from going to that place. What moral difference is there if, with the intention of harming Titus, I deceive Caius by fraud rather than Titus? Yet, in order to speak consistently, those who deny to intention the power of inducing an obligation of restitution will have to distinguish thus: if by force or fraud you have impeded Titus, he will be able to proceed against you concerning the lost benefit; but by no means if you have impeded Caius. For certainly, if the intention of depriving Titus of the right of enjoying Caius’s benevolence is excluded, you can block the road even by force against Caius, without any obligation toward Titus.

We confirm the same thing from the fact that a formal cooperator is condemned by all to restitution, even if he furnished only that assistance which, if the cooperation had been material, would have introduced no obligation. Yet do not a formal and a material cooperator differ from each other by intention alone?

Besides, our position appears also to have pleased Vásquez on account of the things which he writes in De Restitutione [On Restitution], chap. 2, §2, doubt 4: “But if [the damage] is not probable,²⁷ if he intends it, he will be bound, because he gave an efficacious cause of it, because it followed from his deed voluntarily, intended per se, and thus that external damaging of one’s neighbor was willed, and hence unjust.”

²⁷ Probable, that is, unless we are mistaken, so connected that, with every depraved intention excluded, it is imputable per se.

We shall therefore say: whenever true causality, at least probable, of my action toward another’s detriment strictly taken is foreseen, an intention to inflict damage removes the rationale of accidental damage and introduces a debt of repairing the damage.

We require true causality, from physical or moral efficacy, so that we exclude the power which cannot be present in an example except per accidens. Hence we can, not without reason, refer the causality which we require to the genus of causality per se, provided that it is taken together with all the circumstances.

We posit causality which is at least probable, and not merely possible, so that someone can seriously intend another’s damage through it. Thus, in a place where it is not likely that an enemy will pass through, I cannot seriously intend his death by discharging a weapon. A homicide of this kind will therefore always be accidental.

We add, detriment strictly taken, by which someone’s thing or the utility of his right is diminished. Thus, a poor man has no right to the benevolence of a rich man; nevertheless, he possesses the right of gaining this benevolence for himself or of enjoying it. Hence he cannot be cast down from this right by fraud or force. But where someone exercises his own right, he cannot bring upon another a detriment that is strictly such; hence he will never be injurious.

172. Finally, you will ask, by occasion of those things which were said at the end

of the proof, what the difference is between a right to a thing (ius ad rem) such as proceeds from a compact and the right which a citizen has to common goods. For in both cases the thing under discussion is not yet one’s own, and in both cases there is a certain right of having the thing, by means of a prestation which is to be made either by the one making the compact or by the distributor. But in the former case the obligation of commutative justice is the intermediary; in the other case, only that of distributive justice. He who relies upon a stipulation can already call his own or proper, not indeed the thing, but the prestation by which the debtor is bound and the thing will become the creditor’s; but he who relies upon a right of distributive justice has nothing immediately proper to himself under this title.