Article II: The Notion and Obligation of Restitution

I. Notion. To restore, in this place, is to set someone again in the possession or dominion of his thing (2, 2, q. 62, art. 1). This restitution differs from restitution in integrum, which is a remedy of law by which someone recovers a lost condition or juridical faculty: as when, after the useful space of time has elapsed, one is permitted to appeal.

II. Remote Cause of Restitution. Damnose injury, and it alone, induces the positive obligation of restitution. Injury is to be understood whether formal or material, whether it has already been committed or would be committed unless restitution were made, as when someone from contract must return or furnish a thing. Moreover, it is damnose whenever it itself causes that someone has less than he ought to have from right. In that diminution damage properly consists. For if, by that injury, a thing which subsists has been taken away from someone, it remains in the dominion of the despoiled man and therefore must be returned to him. If this does not exist, or if the injury was damnose in another way, justice obligates us that by our action we impede no one from having his things completely. How shall we satisfy this debt according to our powers, except by rendering what morally is equivalent to the thing which he lost through us? But this is to restore.

Damnose injury alone induces this obligation. For if the injury was not damnose, what shall I render to him who has lost nothing? But if no injury has been committed, no one is deprived of his own thing. Cf. more, Quaestiones de iustitia.

III. Proximate Roots of Restitution. The obligation of restoring, which remotely arises from unjust damage, has two proximate roots: another's thing accepted, and the injurious acceptance of it. For by two reasons, that is, both because one's own thing has come to another, and because someone suffers damage from the injury of another, an undue inequality is introduced.

In the former case, the quantity to be restored is defined by the quantity of another's thing which someone retains in its proper species or in an equivalent: that is, as much as he has of another's, so much he must render. In the latter case, his obligation is measured by the quantity of damage which he voluntarily inflicted and therefore foresaw.

Each root can exist separately or concur. The former exists separately in him who possesses another's thing in good faith; but the latter in him who blameworthily destroyed another's house by fire. But they concur in the thief who retains in bad faith the thing taken by theft.

IV. Required Connection. Unjust damnification does not occur through every action, even an unjust one, but there must exist between the action and the damage which followed a sufficient nexus of causality. That is, the action must have true efficacy, physical or moral, upon the effect, and that by its nature. It is also required that, according to the gravity of the matter, the effect follow closely enough that it was to be avoided by moral and human precaution. This they are accustomed to express by saying: the effect must follow per se.

When the effect follows per accidens, but the action was done from an intention of harming, it is probably disputed on either side whether unjust damnification is had. And where there has been true influence, this seems to have to be affirmed. For the excuse of excessive difficulty in attending to the remote effects of one's own action does not profit him who does the action in order to harm.

V. Required Fault. We have already examined that nothing is owed on account of juridical fault alone. But what does he owe who has inflicted damage objectively grave with subjectively light fault? Various cases must be distinguished: a) Venial fault because of imperfect deliberation, or because of negligence lightly blameworthy, is not proportionate for begetting a grave obligation which the nature of the matter would otherwise demand. Therefore no obligation then seems to be present, not even a venial one. Cf. Lugo, De iust., d. 16, n. 50. - b) If the fault was venial because the invincible error concerned the quantity of the damage materially taken, the greater amount is judged to have been inflicted involuntarily. And therefore there will be a light obligation of restoring the value at which he estimated the thing, for example a pearl thrown away. - c) If, although the price of the thing was known, for example 200 francs, he thought this to be light matter by invincible error, he seems to be held to restoring that quantity under grave obligation. For he voluntarily obligated himself to restoring that sum; but the quantity of the obligation is to be estimated objectively rather than subjectively. Except if he thought the thing light merely relatively to the very rich possessor, but by no means according to his own means. Cf. Lehmkuhl, I, 1154. Then he will be held by the light obligation which he accepted. - d) If through several light damages, from forgetfulness, which is not easily to be admitted, he has arrived at grave matter without mortal guilt, he is not held by a grave obligation, although most answer more severely; yet he contracted and retains under light obligation the duty of restoring for the individual damages. On account of the diverse root of restitution, something else must be said of him who through several small thefts, without grave guilt, has completed grave matter: under grave obligation he must despoil himself of the grave matter which he retains in its proper species or in an equivalent.

Force of Error. What if he erred about the body of the damage? The matter can happen in two ways. Either, wishing to kill Titius, well known to him, by chance he kills Sempronius passing by. He must restore nothing: nothing to Titius, whom he did not kill; nothing to Sempronius, whom he damnified by mere chance. - Or, wishing to kill Titius, he directs a gun at this man, whom he thought to be Titius, and kills him. In this case, common sense itself with most theologians today says that the damage must be repaired, because the error can remove the personal injury, indeed, but not the unjust damnification which he consciously made. But the obligation of restitution does not extend beyond that which would be owed to the heirs of Titius: for that damage alone was voluntary. And there are approved authors who, at least if the error gave cause to the fact, with Lugo, d. 17, n. 75-77, and St. Alphonsus, l. 3, n. 629, exempt the same man from every obligation of restoring; and we cannot deny extrinsic probability to this opinion. Cf. Quaestiones de Iustitia.

Force of Doubts. A positive and probable doubt concerning the justice of an action is a doubt of law, to which the system of probabilism can strictly be applied. But a doubt concerning damage inflicted, or concerning the causality of one's own action, is a doubt of fact. Yet if after sufficient investigation the doubt perseveres, the obligation becomes uncertain, on account of which no one is to be despoiled of his own things.

But doubt concerning payment or restitution made is per se to be solved differently. For the value at issue is, as it were, a good uncertain among a few persons and in the possession of no one, which must be divided according to proportion. Wherefore the common opinion obligates to paying or restoring at least according to proportion, unless the probability of payment is much greater. More easily it can be permitted to a doubting debtor that he wait for the petition of the creditor, if from his silence the probability of payment is confirmed. Yet some think it sufficiently safe that he pay nothing, because his obligation is uncertain. "This," says Lehmkuhl, I, 1147, "although it does not seem able to be sustained by solid reason, and therefore I cannot positively counsel the debtor, is nevertheless useful for the confessor to know, insofar as in a difficult case the good faith of the debtor can more easily be supposed and left intact."

You Ask. When restitution cannot be made in a thing of the same order, must it be made in a thing of a different order? For example, must money be attributed for an irreparable damage of the body as such, that is, not considering the patrimonial detriment which followed from it?

Some affirm this with St. Thomas, 2, 2, q. 62, art. 2, ad 1, because there is some compensation, although imperfect; and restitution is imposed in the way in which it can be made. Others deny it, since there is no equation between goods of diverse orders, so that restitution must be called impossible. This reason seems to be preferred. Yet the sentence which condemns the guilty party to a monetary fine is just; wherefore all concede that money is owed after the sentence of the judge.

The furnishing of a thing of an inferior order cannot be compared with partial restitution in the same order, for example with partial payment of money owed. Yet another more specious reason is brought forward for the necessity of that imperfect compensation in another order: goods of a superior order, for example the integrity of the body, bring some convenience of human intercourse of which a man is deprived by mutilation; but when a sum of money has been obtained, that pleasantness of life is restored in part. But is there an obligation of justice to compensate subjective affections which follow damage? Then he who made someone sad would have to restore joy to him from justice. Yet several today, for example Tanquerey, III, 565, hold the opinion of St. Thomas as more probable. Prummer, II, 204; Piscetta-Gennaro, III, 485, 486, treat the matter sufficiently at length.

Kind of the Obligation of Restoring. Although the obligation of restoring is founded in the negative duty of not violating the right to preserve one's own things, nevertheless it commands the positive act of rendering, and therefore is to be held as affirmative. Thus we say with Lessius, Iust., c. 7, n. 49; Palmieri, Opus theol., III, 335, against Lugo, Iust., d. 8, n. 8. Cf. Quaestiones de iustitia, n. 170.

But because the obligation is positive, it admits just causes of excuse or delay, to be examined later.

On Injury. 1. What and of How Many Kinds Injury Is. Injury is violation of commutative justice. According to the goods harmed it is distinguished as personal, which regards goods of soul or body, and real, which regards extrinsic goods. Material injury is committed whenever an action or omission objectively violates a right; formal injury, however, when one acts with an intention lesive of right. It can be damnose, or leave goods intact.

2. Conditions of Injury. a) That a right be violated; b) of one not consenting. - Moreover unjust arts are violence and frauds, at least when by positive deception they remove another's free action or option.

No one is injurious by omission of an action which is not owed to another from justice.

3. Applications. a) He is injurious who impedes another from attaining a good to which that person has a right; or even from a hoped-for good, if the one hoping has been prohibited by unjust arts.

b) He is also injurious who has not impeded the damnose effects of his own action, unless he is excused by a relatively grave inconvenience. For then the action, previously involuntary, is judged to be voluntarily continued.

II. On Restitution. 1. To restore is to set someone again in the possession or dominion of his thing.

2. Damnose injury, and it alone, begets the obligation of restoring as a remote cause. For unless the author of a damnose injury has restored the harmed person into his right, this person will have less than he ought to have from justice, and this on account of the voluntary fact of another, which is contrary to the equality of justice. Again, nothing is to be rendered to him who, in a way at least imputable to another, has lost nothing.

3. The proximate roots of restitution are two: another's thing accepted, which, wherever it is found in its proper species or in an equivalent, is judged to cry out to its owner; and injurious acceptance of it, under which name comes every formal nature of damnose injury. That damage be imputed, it is necessary that it follow from an action which is not so remote a cause that it escapes human precaution.

4. A condition of the obligation is a) theological fault, since otherwise the necessary voluntariness is lacking. But the fault of light negligence or not fully deliberated negligence is not proportionate for restitution of grave matter. Under grave obligation, however, the deliberately unjust man will have to restore matter whose price he did not ignore, but which he thought morally light. Except if the error was founded in the riches of the harmed person: then he will be held under light obligation. He who through several light thefts has arrived at grave matter without grave guilt will have to despoil himself of grave matter under mortal fault; but he who has inflicted several damages without grave guilt will be held by a light obligation of restoring for each.

b) A sufficient nexus of causality between the unjust action and the damage; and one not too remote.

5. The obligation of restoring cannot be urged when there is a positive and probable doubt concerning the justice of the action, or concerning the damage brought about, or concerning the causality of the action. But if payment or restitution certainly owed is doubtful, the law of the equality of justice begets a certain obligation of restoring according to the proportion of the doubt, yet in such a way that restitution is not to be imposed on a debtor who wishes to follow the more benign opinion.

But error concerning the person voluntarily damnified seems by no means to impede the obligation of restoring.

6. Standing by natural law, an obligation of compensation in a thing of an order different from the damage inflicted is not demonstrated.

7. The obligation of restitution is positive. Wherefore it admits causes of excuse and delay.