Chapter IV: General Circumstances and Excuses of Restitution

I. To whom restitution must be made. 1. These are the principles: Restitution must be made to the certain and known owner of the thing, unless excessive difficulty or another cause excuses. - Yet restitution must be made to the possessor of the thing from whom the thing has been unjustly taken away, rather than to the owner, unless on account of special circumstances something else is advised.

2. When a society has been injured, restitution must be made to it, at least if it is a true juridic person, such as a state, a monastery, and not a mere condominium of several persons, as are societies constituted for the sake of profit. But even then restitution must be made to the society rather than by a proportionate part to the individual associates.¹ For if not merely the profit to be divided but the social capital itself has been injured, unless it is returned to the society, creditors in their common pledge, and also associates in their right of prosecuting the business by means of that capital, can be damaged. Therefore one must consider whether or not the social "capital" itself has been gravely affected by injustice. If the society was illegitimate, as a society of Freemasons or socialists, restitution is to be made not to the society but to the associates. Indeed, when there is question of a society of this kind, there is not per se a grave obligation of returning to the shareholders themselves, because the individuals suffer only light damage, unless the enormity of the damage and the number of shares possessed by the same persons bring it about that at least some are gravely injured.

Restitution is made to the treasury either by sending money to the minister who is over the public treasury (delle finanze), or by destroying a passive obligation of the State; but by no means by tearing up banknotes (biglietti di banca), since those banks are indeed protected by the State but cannot be confused with the State.

3. He who by many small thefts has inflicted damage on many citizens will better make restitution by thereafter selling for less to the same morally identical buyers, until equality is restored. Yet this is not prescribed under grave obligation, unless toward those who have suffered notable damage. Indeed, the others are rather easily presumed to consent that restitution be made to the poor.

4. If it is unknown to whom the thing to be restored belongs, and by sufficient inquiry the doubt is not dispelled: a) if the doubt is restricted among a few, personal equality commands that the thing be divided among them; - b) if the doubt is among many, or, because the owner is wholly unknown, the thing is of uncertain owner, nature cannot ratify the possession which the thief would wish to keep under this title. Wherefore he must despoil himself of it and devote it to the poor or to a pious work. The conclusion is admitted by all. Not a few confess that the proof is difficult. We prefer this proof. He who has possessed a thing from injustice must, in the only way in which he can, render the other unharmed. The only way is that he make that use of the thing badly usurped, or of its value, which the injured person reasonably ought to ratify. What other use can be indicated except a pious use, by which the common good is procured and at the same time the soul of the injured person is consulted! Cf. St. Thomas, 2, 2, q. 62, art. 5, ad 2.

But if there is question of unjust damnification by which the evildoer acquired nothing, the common sentence obligates him also to give to the poor the value which he cannot return to the unknown owner. Yet there are some who do not urge this obligation.

An unjust possessor who is himself poor is not prohibited from assigning to himself as a poor person a thing of uncertain owner.

But what if, after the thing has been given to the poor, the injured owner is found? If he had previously been sought with sufficient diligence, nothing is to be restored to him; but if, without the diligence of inquiry having first been applied, the poor were substituted, satisfaction will have to be made to the owner when he appears.

5. What has been taken from a depositary, lessee, or administrator must be restored to these legitimate possessors rather than to the owner. Yet make exception if it is of no interest to them, or they are probably judged likely to consume the thing with injury to the owner. Wherefore restitution will have to be made not to a dissipating Prelate but rather to the Chapter; not to the religious subject from whom the thing had been received, but to the Prelate.

¹ Cf. the solution of the Sacred Penitentiary related at n. 494, toward the end.

II. Manner, place, time of restitution.

Restitution must be made as soon as possible, and in that manner and place which the right and interest of the injured person require, and as it can conveniently and morally be done, without grave inconvenience which one would suffer in his own thing, beyond the debt.

1. As soon as possible. He who delays restitution without cause sins against commutative justice by a sin whose gravity is to be estimated per se from the damage of the omission itself. In number, moreover, it will be one sin as long as he perseveres in the same will. And the same will can persevere for a long time, even for a year. Indeed, it can be one sin with the theft itself.

Therefore it is not lawful per se to defer restitution until death, or to commit it to heirs to be executed. Yet a penitent can be left in good faith where the admonition is foreseen as not going to be profitable. Again, however, if it is prudently judged that this will turn to the good of the penitent, since thus he is more efficaciously stirred to execute the present obligation, it will be expedient to impose restitution before absolution on a penitent who can easily return.

But one must act cautiously with the dying who are bound to restitution. A dying penitent must be absolved who at the same time is in good faith, and does not seem so disposed that he would easily admit and execute the obligation. If there is a slight danger of bad will, or the penitent is not in good faith, he will have to be made certain of his obligation strongly and sweetly, and assisted to accomplish it immediately. Is the obligation hidden, the execution of which cannot be done immediately? The sick man should be induced to entrust a sum of money to the confessor, or rather, if there is opportunity, to a faithful man, so that afterwards it may be secretly paid to the creditor; or to leave that sum in his testament to the same person, with mention of restitution omitted. This mode supposes that the mention in the testament brings with it a likely explanation. If the obligation is not hidden but cannot be fulfilled immediately, let the confessor bring it about that it is certainly taken care of by the heirs, for example by leaving in the hands of the creditor a bond by which the debt is acknowledged. But it happens that a sick man, in possession of himself, is prevented from making any sign. If he is such a man who can easily be presumed to have obligations to be fulfilled, then, lest he perish from a false conscience, he should be warned that he is excused by impossibility from every obligation, provided he sincerely repents of every sin.

2. In manner, this alone is to be considered, that due equality be restored. If therefore it cannot conveniently be done otherwise, it can be done secretly, or under the appearance of a donation, or through an interposed person, or by undertaking undue labor for the advantage of the injured person. But what the creditor, deceived by the apparent gift, repays from gratitude must be restored to him, unless the thing was of small value or such as cannot be returned without offense to the giver.

3. Concerning place, a) A possessor in good faith, provided he acts prudently, sends the thing at the risk of the owner; on the contrary, a possessor in bad faith must go into this hazard. Yet he is freed, even if the thing perishes on the way, if he has followed a mode approved by the owner; if, from the presumed will of the owner, he has chosen a mode prescribed to him by law or by the judge; or, as several wish, if he has used a confessor for returning what he could not return by himself. As to debts from contract, an express or tacit agreement defines at whose risk the thing is to be sent. Per se the risk belongs to the buyer.

b) A possessor in bad faith, for example a thief, must at his own expense carry the thing to that place where the other would have had it, unless it had been taken away, destroyed, or unjustly detained. Make exception if, in the judgment of a prudent man, the expenses to be made would be excessive, when the value of the thing and the faculty of the subject are compared; for then generally either one can wait, or restitution can be made to the poor according to the presumed mind of the owner. Today, however, at least the price of a thing can be sent to foreign regions with almost no difficulty. In things not of great moment, they estimate as excessive per se a damage which exceeds the value by double.

A possessor in good faith sends the thing at the expense of the owner.

Both can deduct expenses which the owner would have had to make in preserving or carrying the thing with himself.

Debts from contract are paid in the mode expressly or tacitly agreed.

4. Per se the whole must be restored as soon as possible. From the probable damage of the owner you will estimate the gravity of restitution delayed or made by parts. It happens, for example, that modest sums of money restored are dissipated, while greater sums would have been preserved.

He who owes from delict seems also bound to make good those damages which arise from delay even when not culpable. Yet the more benign opinion, according to which a just delay purges delay, can be admitted, unless the damage could in some way have been foreseen in the delict itself.

In what order restitution must be made. — Order is especially to be considered when the debtor is unable to pay all. The reason of the order is repeated from this, that the patrimony of the debtor is commonly obligated to all creditors, yet among them there can be found those who by a just title are preferable. Hence:

a) Another's thing itself, because of the bond of ownership, must first be restored to the owner, by whatever title it is possessed. Yet money which has been mixed with one's own is probably to be excepted, on account of confusion.

b) A privileged and hypothecary creditor cannot be prohibited from the use of his rights; and per se the legal order must be observed, if the laws establish one.

c) Those things which are owed by an onerous title must be paid before those which have been promised gratuitously (even piously); for these are subject to the condition: unless something obstructs.

d) More probably, those things whose owners are known must be paid before those which are of uncertain owner. For they are owed by a greater and more certain title.

e) But it is not established that debts from delict must be paid before debts from contract.

f) If the debts are of the same character, he cannot be reproved who first satisfies the prior creditor, because he precedes in time; or the poorer creditor, from piety; or the one asking first, as being more diligent; indeed even the greater friend, because each has a right to the whole. Yet this last thing is denied by several. He satisfies the mind of our law more who pays each one by a proportionate part.

g) But if, because he had to cede his goods or make cession in court, the debtor has lost the free administration of his goods, then the legal order must be strictly observed. But acts done even before in fraud of creditors, and sometimes payments themselves (especially those which are made in merchandise and not in counted money), can be revoked by the action which from the Roman praetor, its author, is called Paulian. That sentence of the judge will have to be executed, at least after juridical intimation, unless it rests on a false presumption of fraud.

N. B. He who is insolvent cannot by notable donations harm creditors; and those participate in injustice who knowingly would impel the debtor to them. But those who, conscious of his inability, merely accept a notable gift certainly cannot be condemned, since they merely use another's sin for a gain which, if you abstract from the subjective intention and condition of the giver, is honorable. Nor does this strictly oppose charity per se, since charity does not oblige with grave inconvenience. Yet the same persons seem little to be commended.

Excuses can take their origin from the part of the debtor or from the part of the creditor; some remove the obligation, others permit only delay of payment. Therefore:

I. On the part of the debtor.

1. The following show or make the debt to be nothing:

a) Defect of proportionate theological fault.

b) Composition entered into with the Holy See. This can be conceded as to ecclesiastical goods, and also as to uncertain debts, when restitution is permitted to be made to a pious work or to the poor. Compositions are conceded by the Sacred Congregation of the Council, and, if the case was occult, by the Sacred Penitentiary. In conceding composition concerning uncertain debts, the Holy See seems to have unfolded a certain high indirect dominion over temporal things, so that not even when the owner appears does anything seem to be owed.

c) Conversion of title: the debtor gives to himself as a poor person what he could have bestowed on the poor.

d) Prescription; and, for the possessor in good faith, destruction of the thing.

e) Payment made to the creditor of the creditor, at least when justice permits that payment be made to him. Yet since it removes some option from the later creditor, this exchange is illicit without a reasonable cause, although per se in the internal forum it frees perfectly.

f) Compensation with an equal and certain debt by which the creditor, from commutative justice, is obligated to the debtor. And he who, forgetful of the debt, has affected the creditor with a gratuitous gift, unless the circumstances demonstrate otherwise, is probably judged to have wished first to satisfy his own obligation of justice. Wherefore what one, after the obligation of restitution has arisen, has bestowed upon the poor can be deducted from the restitution which is permitted to be made to the poor.

g) In a doubtful cause of law or fact, a sentence of the judge obtained in good faith.

2. Those things excuse for a time, or permit delay, which bring it about that the creditor would oppose himself irrationally to the delay. And the cases are generally reduced to inability, whether physical or moral, i. e. excessive difficulty, yet extrinsic to the cause of the debt. Wherefore damage which consists in this, that you despoil yourself of goods unjustly acquired, will not excuse, unless the reason of positive infamy is added. Moreover, the excuses are common to an obligation from contract and from delict.

Furthermore, the excusing damage, if you except only extreme necessity, in which all things become common, must truly be graver than the damage of the creditor. But it can be one's own damage, or that of others, or that of the commonwealth.

What if both creditor and debtor are found in grave necessity? The probable controversy concerning this matter can be solved practically as follows: he who is in grave necessity would, from restitution, fall into almost extreme necessity, and thus would suffer a greater damage. Therefore no one per se is compelled to lose his justly acquired state in order to restore. But he can live sparingly according to his condition. Sparingly, I say, and by trying gradually to restore.

Standing on natural law, one burdened with debts who shortly, say after one or two years, hopes that he will be able to pay, must defer entrance into religion, unless he rightly fears graver damage to himself from the delay, or can pay equally well in religion. But in religion itself, both from goods which he legitimately acquires, and by labor congruent with his state, the permission of the Prelate having been obtained, he must satisfy creditors. By the positive law of canon 542, 2°, however, "those burdened with debt who are not able to pay are illicitly admitted."

N. B. 1. A temporary excuse can become perpetual by accident, if the impediment perseveres. But usually partial restitution becomes possible; nor should it easily be conceded that no mode is available which is not joined with infamy.

2. He who is a debtor from delict, contrary to him who is obligated by contract, must furnish the damages of delayed payment, if there are any which could have been foreseen.

II. On the part of the creditor, the following frees:.

a) Express or tacit condonation, for example, if he tore up the bond. Condonation can besides be presumed in thefts of lesser moment (of a few coins, of foods) which are done at home by children of the family or by wives, if the things taken away no longer exist; - in foods or things of lesser moment which have been consumed by servants; - or even, in grave matter, when a servant detected by the master is corrected or expelled, with no restitution requested; - or when, in a criminal cause, no compensation of damage was requested.

b) In small things which workers laboring in forests, vineyards, and workshops sometimes carry away, when they are things which the owner cares little about or, if asked, would easily grant.

c) In small thefts of the poor which are made against diverse owners. If against the same owner, let them restore at least a part, and propose amendment concerning the rest. Cf. Noldin, II, 515, d.

d) Concordats or other agreements, to be executed honorably, permit the debtor at least delay. Concerning those agreements we treated at n. 501, where we also spoke of the fuller liberation which the debtor obtains through them.

e) A broader promise being excluded, the debtor who retains as much as is enough for him to live sparingly according to his legitimately acquired state will not have sinned against justice.

But today less must be indulged to the debtor, since by the agreement itself or by the authority of the judge he is permitted to keep some things. Yet it can be tolerated that those ceding their goods hide certain things which they themselves hold in great value (for example on account of the memory of parents), but which are less precious to others. But it is necessary that they probably be able to refund the price of those things to the creditors. If an honest debtor wishes to keep something more for himself by whose aid he has greater hope of satisfying creditors fully, these can sometimes be judged to consent. But whatever has been retained beyond the law is excluded by the favor of the law, and therefore must be restored as soon as means are given. - But we shall never excuse those who rashly risk another's money, prepared, after cession of goods, to try fortune again.

I. Circumstances of restitution. — 1. 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, or concerning the causality of the action. But if a certainly owed payment is doubtful, the law of the equality of justice begets a certain obligation of restoring for the proportion of the doubt, yet so that restitution is not to be imposed on a debtor who wishes to follow the more benign opinion.

2. Restitution must per se be made immediately; so that an unexcused delay is a new injustice, to be estimated according to the general norms. Inculpable delay is in no way imputed to him who owes from contract; but it seems to impose on him who owes from delict the burden of bearing the damage, at least if it could have been foreseen in a confused way.

3. The mode of restitution must be such that due equality is repaired without damage or inconvenience of the creditor: as if by too many tiny restitutions you restore grave matter.

4. Restitution must be made in that place where the creditor has a right. But a possessor in good faith, at the risk and expenses of the creditor, and a holder in bad faith, at his own risk and expenses, both prudently send the thing. Each can deduct useful expenses from the quantity to be restored.

5. To whom restitution must be made. 1. Per se to the certain and known owner of the thing; yet rather to the despoiled possessor. - 2. To the society which has been injured or has the right, not to the individual associates, unless the society was illegitimate; and then often the grave obligation will be only that of giving to the poor or to a pious work. - 3. Restitution must be made to the treasury in such a way that the State itself recovers its good. - 4. If by many small thefts damage has been brought to many, it will be better to procure the badly acquired good morally for the same persons. If no one among the many has been gravely injured, they are rather easily presumed to consent that restitution be made to the poor. - 5. If it is unknown to whom the thing pertains, the thing must be divided among the few concerning whom there is doubt; if there are many, or the thing is of uncertain owner, nature nevertheless cannot ratify the possession of an unjust man. Wherefore the thing must be devoted to the common good of the poor or of pious works. The common opinion imposes the same substitution on the damager.

6. Order among creditors. The patrimony of the debtor is commonly obligated to all creditors. Nevertheless, another's thing, at least one defined in body, must per se be returned first to its owner; - privileged and hypothecary creditors cannot be prohibited from exercising their rights; - those things which are owed by an onerous title must be paid before those which have been gratuitously promised; - more probably a known owner is to be preferred to an unknown one. Nor is he to be reproved who, while creditors are of equal right, has paid first the more diligent, or the older, or the poorer, or indeed the greater friend.

But if, on account of cession in court, the debtor has lost the free administration of his goods, the strictly legal order will now have to be followed.

But acts previously done in fraud of creditors, and sometimes even payments already made, can be revoked by the Paulian action.

They seem immune from injustice who have merely accepted a notable gift from a debtor who is insolvent, but has preserved the administration of his goods.

II. Causes excusing from restitution. 1. On the part of the debtor, the following fully excuse: defect of theological fault, when there is question of delict or quasi-delict; - composition with the Holy See concerning ecclesiastical goods or uncertain debts; - conversion of title; - prescription; - destruction of the thing, if the possessor was in good faith; - payment to the creditor of the creditor; - compensation; - sentence of the judge in a doubtful cause of law or fact.

Those things excuse for a time which bring it about that the creditor would oppose himself irrationally to the delay. The cases are generally reduced to physical or moral inability, yet extrinsic to the cause of the debt. - Extreme necessity excepted, the excusing damage, whether one's own, or that of others, or that of the commonwealth, must be graver than the damage of the creditor. Foreseen damages of delayed payment must be furnished by him who owes from delict.

A broader faculty legitimately obtained being excluded, the debtor who retains as much as is enough that he may live sparingly according to his legitimately acquired state does not sin against justice.

2. On the part of the creditor, express or tacit condonation frees, which in thefts of lesser moment can sometimes be presumed; - a concordat or agreement with creditors, insofar as it has this force.