Article First. To Whom Restitution Must Be Made

In order that the proposed question may be answered suitably, a threefold case must be distinguished: a. the owner is certain and known; b. the owner is plainly unknown or, though known, cannot be reached; c. the owner is uncertain. The owner is said to be uncertain when among several it is doubtful whether this one or that one is owner.

502. 1. If the owner is certain and known, restitution of itself must be made to the owner himself or to the just possessor from whom the thing was taken away, whenever this can be done without injury to another and without great difficulty for the debtor, because on the one hand the thing cries out for its owner, and on the other the affirmative law does not urge with proportionately grave inconvenience.

a. Therefore if damage has been inflicted on the republic or community, restitution must be made to the republic or the community itself, if this can be done without great difficulty. Yet in this case, more easily than if there were question of restitution to be made to private persons, it can be conceded that restitution be made to the poor, whose care rests upon the republic or community.¹

b. If damage has been inflicted on a community whose goods serve for pursuing an evil end, one must distinguish: if the community itself has no right of existing nor of possessing legitimately in the forum of conscience, because its end is evil, as the sect of Freemasons or a society of socialists, restitution is not to be made to the community, but to its members; but if the community itself has the right of existing and therefore the right of possessing, as a religious sect, restitution must be made to it, even if certain goods are applied to an evil use: for the evil use of goods does not prevent the sect itself from retaining ownership in these goods.² But even in this case a reason can more easily be admitted for restitution to be made to the poor, for example, because the damage inflicted on each person is slight, because there is great difficulty of restoring to each person.

c. If a thing has been taken away which had been deposited, leased, or lent with another, it must be restored not to the owner but to the possessor, otherwise an injury is done to the possessor holding the thing by a just title, unless either he himself consents to restitution being made to the owner, or it is rightly and deservedly feared that he will consume the thing with detriment to the owner. Hence he who takes away linens from a washerman must return the linens taken away not to the owner but to the washerman, because otherwise this one would suffer grave damage.

d. He who culpably burns an insured house of itself must restore to the insurance society only as much as it pays to the owner, and in addition to the owner that part of the damage which the society does not repair. Yet sometimes restitution can be made to the poor, as will be said below.

e. Although restitution of itself must be made to the owner, not to his creditor, nevertheless restitution made to the creditor is valid, because indirectly restitution is made to the owner himself; and if there is a reasonable cause of restoring to the creditor, the owner is considered to consent to this mode of restitution. But if there is no cause of restoring to the creditor of the owner, the restitution in the external forum is invalid, when the law so establishes; but in the internal forum it is valid, because in this way equality between debtor and creditor has been restored.

f. Although restitution of itself must be made to the owner, not to his creditors, yet if the owner was forced to make cession of goods, restitution or payment of debts must be made not to the owner but to the administrator of goods constituted by public authority: for the creditors of the owner have a right that from his goods they be preserved unharmed. Yet if the owner is found in grave necessity, restitution can be made to him, because in grave necessity he can subtract from his goods those things which are necessary for sustaining the life of himself and his family.

g. When the owner has died, restitution must be made to his heirs, and only if these are lacking can it be made to the poor: for all the rights of the deceased pass to his heirs. Nor is it permitted to expend the thing to be restored for the repose of the soul of the deceased owner, unless from the reasonably presumed will not of the deceased but of the heirs, because the deceased now has no ownership.³

h. If the deceased owner had several heirs, whether necessary or by testament, the thing to be restored must be divided among them with the proportion of the inheritance preserved. The same must be said if the owner distributed all his goods among several legatees, namely the thing to be restored must be divided among the legatees with the proportion of the legacies preserved, unless another disposition which the owner would have made about this matter is certainly established.

2. He who restores to the poor or to pious causes, as long as the owner or his heirs are known and can be reached, does not satisfy his obligation and must restore again, because restitution must altogether be made to the owner himself. Yet sometimes prudence will advise the confessor to pass over this obligation in silence.

In order that a debtor may be excused from making restitution to the owner himself, so that in place of him restitution may be made to the poor, it is required that the damage of the debtor exceed by more than double the value of the debt or the damage of the injured owner.⁴

¹ Cf. Lehmkuhl I, n. 1020.

² Holy Office, Sept. 21, 1842.

³ Sacred Penitentiary, Feb. 7, 1899.

⁴ Cf. St. Alphonsus, n. 598.

503. If the owner is unknown, or indeed known but cannot be reached, one must distinguish thus:

1. If the possessor of another's thing is in good faith, he can retain it for himself; for the thing is held as abandoned, and therefore by right of occupation it passes into the ownership of the possessor.

The contrary opinion of St. Thomas,¹ according to which restitution must be made to the poor or to pious causes even by him who possesses another's thing in good faith, can indeed be advised in practice, but cannot be imposed by a strict obligation, especially since even St. Alphonsus (n. 589) holds the opinion of St. Thomas only as probable.

2. If the possessor of another's thing is in bad faith, he must expend it for the poor; and in like manner an unjust damager who does not receive profit from the damaging is bound to restore to the poor or to pious causes if the owner to whom he inflicted damage is altogether unknown.

a. He must expend the thing. Although all authors agree in establishing the obligation of returning another's thing and of repairing damage inflicted in this case, yet some derive the obligation both from natural law (because of the common good) and from positive law, while others derive it from positive law alone, whose foundation is the reason of the common good.²

b. But he must expend it for the poor or pious causes, both because in this way the common good is procured, and because this is rightly presumed to be the will of the owner, that his goods be expended in such a way that they redound to his own utility.

c. Yet since this obligation, as one that seems to have arisen from positive law, is generally unknown to the faithful, who moreover, if warned about it, obey with difficulty, the confessor will prudently abstain from making a warning if he foresees that it will be harmful.

3. If he who must restore to an unknown or uncertain owner is himself truly poor, according to the opinion of several authors he can retain the thing or part of it for himself as alms: for as poor he must not be of worse condition than other poor persons, even if he possesses the thing in bad faith.³

From these things it is now clear what must be established concerning uncertain goods and in like manner concerning uncertain debts. Uncertain goods are those which are certainly another's, but whose owner is plainly unknown or cannot be reached. Uncertain debts are debts certainly owed, when however the owner to whom they are owed is plainly unknown or cannot be reached. Namely, not only uncertain goods must be restored by a possessor in bad faith, but uncertain debts too must be paid to the poor or to pious causes.⁴

¹ Summa II-II, q. 62, a. 5, ad 2.

² C. Quum tu 5, De usuris (V. 19). C. Quum sit 16, De iudaeis, sarracenis, etc. (V. 6). These laws, which immediately refer only to usurious price and to profit from an office illegitimately undertaken, are extended by universal custom to all debts from offense. Cf. Laymann, De restit., c. 9, n. 2; Lessius, l. 2, c. 14, n. 33 ss.

³ Cf. Lessius, l. 2, c. 14, n. 41; Lugo, disp. 6, n. 148.

⁴ Cf. Sporer-Bierbaum II, tract. 4, n. 386 ss.

504. If the owner is uncertain, but the thing is certainly another's, first of all the true owner must be investigated; but if, after diligent investigation has been instituted, the doubt perseveres, restitution, as far as is permitted from the circumstances, must be made to the probable owner himself; but if it cannot be made to the owner, it must be made according to the presumed will of the owner. From these things, for three diverse sets of circumstances, these things can be established.

1. If the true owner is found among a few (three or four), about whom it is doubtful who is the true owner of the thing, the thing or its price must be divided among them, or, if this can be done, they are to be induced to make a composition.

2. If the true owner, or a few true owners, are found among the inhabitants of a place, among whom they cannot be discerned, restitution does not necessarily have to be made to the inhabitants of the place, but can be made to the poor, and indeed of any place whatever.

3. If the true owners are many and cannot be discerned among the inhabitants of a place, restitution must be made to the inhabitants of the place, so that restitution, as far as can be done, may be made to those very persons who suffered the damage. Yet if the damage inflicted on each was light, restitution can more easily be made to the poor, but of the same place.

If a merchant inflicted damage on several buyers by adulterating goods or by diminishing weights or measures, he must restore by increasing weight or measure or by diminishing price, if the ordinary buyers are the same as those who suffered the damage; but if the buyers now are others and restitution cannot be made to those damaged, restitution must be made to the poor of the place.

In this chapter we will treat of certain questions concerning the circumstances of restitution, as, to whom restitution is to be made, how much, in what order, in what manner, at what time and place.

Restitution is compensation for an injury inflicted, and so in general it must be made to him who suffered the injury. This will in general be the lawful possessor of the property taken or damaged, to whom, therefore, restitution must be made if he is known for certain. If the property was taken from a child, or from a servant who merely held it for his master, it may be restored to the father of the child or to the master. If it belonged to a corporation, it should be restored to those who administer its affairs.

Incase of doubt as to whom the property belongs, diligent inquiry should be made, and if the doubt cannot be resolved, the property should be divided among those who are the probable owners if they are few in number. If they are many and uncertain, restitution may be made to the poor or to religious purposes of the place where the injury was committed, for the true owners may in the circumstances be presumed to wish that this should be done. If the property cannot well be devoted to local charitable or religious purposes, it may be spent elsewhere on such causes. When shopkeepers and others are bound to restitution for defrauding their customers, the persons injured are not altogether unknown, and restitution can best be made by restoring to future customers what has been unjustly taken away.

If the true owner is altogether unknown and cannot be discovered, property which has been obtained without injustice may be retained and treated as property found, in which the finder has a qualified ownership.

If the property was obtained through wrongdoing, it must be surrendered, the common good requiring that nobody should benefit by his own theft or fraud. Theologians are practically agreed on this, and that restitution must be made to the poor or to religious purposes; but when they inquire further into the reason for the doctrine they are divided in opinion. Some maintain that it is grounded on the positive law of the Church which expressly provided that what has been unjustly obtained by usury or simony must be given to the poor or to pious causes, and the same decision has been extended to similar cases. On this ground they explain the action of the Church, which sometimes grants compositions for just cause to debtors whose creditors are uncertain. Other theologians with greater probability teach that the doctrine rests on natural law, which the Popes interpreted and applied to gains made by usury and simony. For natural law requires that nobody should benefit by his own wrongdoing, so that restitution must always he made of ill-gotten goods. If restitution cannot be made to the individual owners, partly by interpreting their personal wish, partly because if the property is usefully expended on the poor in their behalf they will benefit spiritually by it, partly because inasmuch as the community is wronged by theft, restitution must be made to the community, and this is done by choosing the poor or religious objects; the obligation is satisfied by restoring to these, SEcTION How Much is to be Restored

We have already seen what must be restored in the case of one who is in possession of another’s property, or in case of unjust damnification to another. In general, the damage inflicted is the measure of the restitution to be made, for justice requires that the owner should have back his own. When there were several who co-operated in injustice a special difficulty arises as to whether each and all are jointly or severally bound to make restitution. If two thieves assist each other to break into and rob a house, what are the obligations of each of them with respect to the restitution to be made ?

In such cases as this each must, of course, make restitution for the harm which he personally and immediately caused. If each one takes his share and makes reparation for that portion of the injustice which he committed, the whole damage will be repaired. But sometimes some of the partners of injustice are unable or unwilling to make restitution for their share in the unjust act; the question then arises whether the rest are bound to make good the whole damage inflicted.

Each and all will jointly and severally be bound to make reparation for the whole damage, or in solidum, as divines say, when each and all were jointly and severally the efficacious moral or physical cause of the whole damage; for we are bound to make reparation for the damage which we have caused, and for that alone. This will be the case under the - following circumstances: (az) When the action of each and all is the necessary and sufficient cause of the whole damage. This condition is fulfilled when one commands or counsels an unjust act and another in consequence performs it.

(6) When the action of each is sufficient to cause the damage, and it has an actual effect in producing it, though the effect would have been produced without it. Thus if two men inflict fatal wounds on another, each is responsible for his death and all losses necessarily connected with it. In the same way, when several conspire together to commit an injury, and mutually encourage and assist each other to inflict it, all are bound jointly and severally to make restitution, (c) When the action of each is necessary for the production of the effect, so that it could not be produced without it, though the action of each would not be sufficient by itself, all are bound jointly and severally to repair the injury. Thus if two thieves carry off a safe which they could not carry alone, each in the other’s default must make good the whole damage.

When several acting together, but without mutual conspiracy in the strict sense, inflict injury on another, divines are not agreed as to whether each and all are bound to make reparation for the whole damage. Each is certainly bound to repair the damage due to his personal action, but probably be may be excused from restoring more than is equivalent to the damage which he actually caused. Thus, though those responsible for an unjust war are bound to make compensation for all the unjust damage which it causes, yet the private soldiers are only bound to make restitution for the damage which they personally cause. In the same way, if a crowd damage the property of an obnoxious political opponent, individuals who formed the crowd will only be obliged to make good the damage which they severally caused. Similarly, if injustice be done by picketing in a strike, the leaders will be bound to make reparation for all the injuries inflicted; the men who take part in it may be excused if they contribute their quota.

When several have co-operated in some act of injustice for which they are bound to make restitution there may be question as to who is primarily bound, and whether the others are excused if he repairs the damage. The answer to such questions will be clear from what follows.

When those who co-operated in injustice are only bound to restore ratably, no order need be observed among them. Each must fulfil his obligation independently of the others and restore his share. Even if they are bound jointly and severally to make restitution, but all co-operated in the unjust act in the same way—as, e.g., by conspiracy and mutual help— the question of order will not arise. Each and all are bound to restore their quota, and in default of any, the rest are equally bound to indemnify the injured person. If this has been done, those who indemnified the injured party will have a claim against the defaulters.

If, however, those who are guilty of an injustice in common co-operated in it in different ways and degrees, so that, for example, one gave the command, others executed it, and others who were bound to prevent it neglected to do so, then it is plain that all are not equally primary causes of the injustice, nor are all equally bound to make restitution. In such cases the co-operators are bound to make restitution in the following order: (a) If anyone has the property of the injured person he must restore it, for res clamat domino.

(b) One who co-operates by command is the principal cause of the injury; the rest merely act in his name and for his advantage, so that he is primarily bound to make good the damage done.

(c) Thirdly, those who inflicted the damage will be bound to make it good. (d) Then others who co-operated positively by advice, consent, or flattery, will be bound. (e) Finally, those who co-operated negatively.

If the primary causes of the injustice make restitution, the rest will be free, whereas if the secondary causes who merely acted for others restore to the injured party, the primary causes will thereafter be bound to make restitution to them.

The question of order of payment among creditors also arises when a debtor is insolvent and cannot pay all in full, for if he can pay all in full, order of payment is not of consequence. If a man cannot pay his debts as they become due, he will be adjudicated a bankrupt, and his property will in general be divided ratably among his creditors. Some debts, however, have priority according to English law, and must be paid in full if the assets are sufficient for the purpose; otherwise they will abate equally among themselves. These are (1) Rates and taxes. . . . (2) The wages or salary of any clerk or servant, not exceeding £50, in respect of services rendered during four months prior to the receiving order. (3) Wages of any labourer or workman, not exceeding £25, for services, whether time or piece work, rendered during two months prior to the date of the receiving order.”’¹

“A secured creditor has four courses open to him: (1) He may rest on his security and not prove. (2) He may realize his security and prove for the deficiency. (3) He may value his security and prove for the deficiency, after deduction of the assessed value. (4) He may surrender his security and prove for the whole debt.”’” The debts of a person lately deceased must be paid by the executor or administrator in the following order: ‘‘ First, the funeral expenses; next, the expenses of probate or taking out administration, including the costs of an administration action and other executorship expenses; and then the debts of the deceased are payable out of legal assets in the following order:

(a) Crown debts due by matter of record, a surety to the Crown having the like priority; (b) debts having priority by statute—e.g., under the Friendly Societies Act, 1896, sec. 35; (c) debts of record consisting of judgements in courts of record and recognizances; (d) debts by specialty and simple contract.”²

If, however, the deceased died insolvent, on the petition of one or more of his creditors, whose debt would have been sufficient to support a bankruptcy petition against him if he 2 bid. had been alive, his property will be administered as in bankruptcy according to English law.

If a debtor makes a payment of money or a delivery of property to a creditor not in the ordinary way of business and without any pressure or demand on the part of the creditor, knowing that his circumstances are such that bankruptcy will be the probable result, he is guilty of a fraudulent preference in English law. Such fraudulent preference is void against the trustee in bankruptcy, if made within three months before the bankruptcy petition is presented. There is a similar provision in American bankruptcy law, but the period is four months instead of three.

Those who are on the verge of bankruptcy should not, of course, give such preferences to any of their creditors merely with the intention of favouring them at the expense of other creditors. If they cannot pay their debts in full, the claims of justice are the same for all, and all creditors should share alike. If such a preference has been given, the property must, of course, be surrendered to the official receiver or trustee on his demand, But supposing that he does not come to the knowledge of it, and makes no demand for it, is the preferred creditor bound to surrender the property of his own accord ? There would seem to be no obligation in conscience to do so. He has only received payment of what was due to him, as we suppose; he might have demanded payment, and then the insolvent debtor might lawfully have paid it. No valid reason can be urged to show that in accepting full payment of his debt before the debtor’s bankruptcy the preferred creditor commits an act of injustice against the other creditors. If he does not commit an act of injustice against them, he is not bound to make restitution to them, At least, this opinion would seem not to be destitute of all probability in its favour.

¹ Encyclopedia of Laws, s.v. Bankruptcy.

² [bid., s.v. Executors and Administrators.

In the internal forum of conscience it is sufficient to indemnify the injured person for the injury which he has suffered, and in whatever way this is done conscience will be satisfied. Restitution, then, may be made by one’s self or through another, with or without the knowledge of the injured party, under the guise of a gift, or by extra work in the case of a servant, or greater diligence than is otherwise of strict obligation. If the form of a gift or present is chosen, and the donee makes a present in return, this may not be accepted if the principal motive for making it was to make a return for the present received, otherwise it may be retained when the receiving of the present was rather the occasion than the cause of the return being made.

In English law payment through the post is not a valid discharge of a debt unless the creditor expressly or by implication designated that method of payment. However, in conscience, it would seem that a possessor in good faith of another’s property is released from all further obligation if he choose means for making restitution which are ordinarily safe and secure. He is only bound to use ordinary care and diligence in restoring the property, nor is he bound to do this at his own expense.

According to the common opinion of theologians, one who possesses another’s property in bad faith must see that the property is again put into the possession of its true owner, so that if he send it by post and it is lost, he is still bound to make restitution, unless the means chosen were expressly designated by the owner. However, there is a good opinion which excuses even the possessor in bad faith from further obligation if he took ordinarily secure means to restore the property to its rightful owner. The creditor may be presumed to consent that such means as the post or the confessor should be chosen for making restitution, and if the property is lost, perit domino.

The possessor of another man’s property in bad faith must restore it to the owner at his own expense. If the individual property cannot be restored without very great expense, restitution may be made in money with the presumed consent of the owner.

When an obligation of making restitution arises from contract, the terms of the contract must be observed with regard to time and place. Otherwise, in general, restitution must be made as soon as possible, and the unjust possessor of another’s property will be responsible for all loss arising from even inculpable delay, as far as such loss could be foreseen. He became responsible for such loss when he took unjust possession of his neighbour’s property. He must, moreover, at his own expense, as we have seen, take means to put the owner in possession of his property again. The possessor of another’s property in good faith must not delay restitution unreasonably, but he is not responsible for unavoidable delay, nor is he bound to bear the expenses of making restitution.

I. Restitution per se must be made to the injured person, or to him who has succeeded to his rights, whether as owner, or as administrator or possessor (St. Alphonsus, III, 596). I have said per se, because sometimes, from the presumed will of the owner, it can be assigned to the poor; thus, for example, alms received under the fictitious title of poverty can be granted to the true poor. For the rest, you should especially conclude and note:

1. If a moral person has been injured, whether it is a universitas of things or a universitas of persons, restitution is to be made to it. But if a society pursues only a dishonest end, and therefore lacks the right of existing, possessing, etc., restitution per se and pro rata is to be made to the individual members. Since this can scarcely be done in practice, there will easily be reason to spend the sum to be restored, for example, on the poor or on a pious cause; all the more because the individual members, for the most part, do not suffer grave damage. I have said "only a dishonest end"; for otherwise the answer must be different, if the society also pursues a legitimate end.

2. What has been said, which it is especially useful to note, is also to be applied to an insurance society; and this holds even if that society has shareholders, or has reinsured its damages with another society. For it, as voluntarily injured by you, has a strict right to restitution; all the more because a contract has often also been added, which you would not call unjust.

Objection. In determining the price to be paid annually, the society also takes account of damages voluntarily to be inflicted, so that it has already provided for itself.

Response. That, considering both the latitude admitted in prices and the aleatory character annexed to the contract, does not prevent the price from being called just.

3. Damages unjustly inflicted on the republic can be restored to causes, for example Catholic schools, etc., which receive or have received subsidies less than just.

II. In doubt as to whom restitution ought to be made, the following rules hold:

1. If it is unknown to which one out of a few the thing belongs, let it be handed over to those few, who may divide it among themselves according to the proportion of the doubt. If something prevents it from being handed over in that way, let the possessor himself divide it among those few. The reason is that each one has a truly probable right in the thing (St. Alphonsus, III, 589).

2. If it is unknown to which one out of many the thing belongs, the possessor can retain it. For since, in the case supposed, no determinate person has a truly probable right in the thing, and since, as is supposed, there is no hope of acquiring further knowledge, that thing can be held as a thing belonging to no one, or at least be treated as such (n. 798). And this is so not only by a possessor in good faith, which all concede, but, as it seems, also by a possessor in bad faith; for no reason appears why he should seem to be excluded. Nevertheless it is praiseworthily advised that a possessor of this sort spend the thing so possessed on pious causes.

Objection 1. Let no one take advantage from a possession formally unjust.

Response. From a possession formally unjust as such, I concede; from the fact that, on the occasion of such a possession, the thing has now been placed in that condition in which it has become no one's, or in which it can be treated as no one's thing, I deny.

Objection 2. Canon Law¹ prescribes that things accepted through usury or simony be spent on pious causes; and this by custom has been extended to all things accepted from delict.

Response. The new Law is silent about that disposition; this being so, even the custom which extended the disposition of the law, granting that it truly had place, now no longer seems to be binding.

What the law is if the injured owner later appears, see n. 798.

3. If it is unknown precisely to whom, out of many, restitution is to be made, or if many of some commune have been defrauded, for example by a merchant, innkeeper, or baker who sold adulterated merchandise or diminished measures or weights, and it is not known precisely to whom damage was inflicted, restitution per se ought to be made to the ordinary buyers, not to the poor. And restitution can be made, for example, by selling better merchandise or by increasing measures or weights. But if the buyers are not judged to have been gravely injured, the seller is not held under grave sin to restore to the ordinary buyers, but satisfies the grave obligation by restoring to the poor of the place; and he is even excused from venial sin if there is a reasonable cause for restoring to the poor, for example because he cannot restore to the ordinary buyers without suspicion arising about past frauds, or because some poor are in great need, in which case it is licit to presume that the owners are not unwilling. But if the ordinary buyers are judged to have been gravely injured, restitution must be made to them under grave sin, unless again either a proportionate cause is present for restoring to the poor, or the owners, even in the case, are reasonably presumed not to be unwilling (St. Alphonsus, III, 589, 595, with 534, question 2).

4. If it is entirely unknown to whom the thing belongs, the possessor, even in bad faith, can retain it, as was said about the case in which it is unknown to whom out of many the thing belongs.

Corollary I. What was said under 1, 2, and 4 about the possessor is also to be applied to a mere damager. Therefore: 1° if it is unknown to which one out of a few damage was inflicted, restitution is to be made to each according to proportion; 2° if it is unknown to which one out of many, and likewise if it is entirely unknown to whom damage was caused, there is no obligation of restoring.

Corollary II. In the case in which restitution can or must be made to the poor, the debtor himself, if he is poor, can prefer himself (St. Alphonsus, Praxis confessarii, n. 24).

¹ Alexander III, cap. V, De usuris.

Preliminary Note. We suppose that the debtor has not yet made cession of goods or cession in court. Now:

I. With regard to natural law:

1. Another's thing existing in itself must be returned to the owner (St. Alphonsus, III, 690).

2. Those who enjoy a hypothec or pledge have preference with respect to the thing obligated to them, unless and insofar as law establishes the contrary.

3. There follow creditors endowed by law with a privilege in certain determinate goods, namely insofar as the law truly grants the privilege.

4. Then come creditors endowed with a privilege in all the goods of the debtor, namely again insofar as the law truly assigns the privilege.

5. Then follow common creditors, to whom, as regards the debtor's obligation, privileged creditors are equated so long as the privilege has not yet become available for execution. Now the debtor, with regard to them, can either satisfy each according to proportion, or make full payment either to the creditor who was earlier in time, or to the creditor asking for full payment, or to both; and divide what remains according to proportion (St. Alphonsus, III, 688, 690-693). Thus we resolve practically; but theoretically:

Disputation 1. Whether the creditor who is earlier in time must be preferred. Some affirm it, because the earlier creditor, although he directly has the person of the debtor obligated, nevertheless indirectly has also the debtor's goods obligated, in which he ought not to be prejudiced by a subsequent creditor. There is added the ancient Rule of Law 54 in the Sext: he who is prior in time is stronger in right. But this is denied sufficiently probably, because not the debtor's goods, but only his person, is obligated to the creditors, and equally to all. Nevertheless, the creditor who is earlier in time can sufficiently probably be preferred, namely with regard to the argument alleged above, which indeed does not prove an obligation of preferring him, but nevertheless argues so strongly on its behalf that one may conclude to liceity (St. Alphonsus, III, 690; cf. St. Thomas, Opusc. 73, chap. 18, at the end).

Disputation 2. Whether the creditor asking for payment can be preferred. Per se it seems this must be denied, because on the one hand the said creditor has only an equal right with the others, and on the other hand, for him as such there is not present, as there is for the earlier creditor, a special title not altogether to be rejected. Appeal is indeed made to ecclesiastical positive law;¹ but that law, even if perhaps formerly it favored the opposite opinion, after the Code of Canon Law can no longer be urged. Nevertheless per accidens the creditor asking for payment seems able to be preferred, because approved custom in commerce so holds. For the same reason it is licit for the creditor to ask for full payment; but the debtor cannot warn some creditor to ask, because on his part he cannot bring it about that the other creditors, who have a right equal to that of the one to be warned, become of worse condition; nor do men who admit payment to one asking approve that someone be warned to ask.

Disputation 3. Whether a poor creditor can be preferred to a rich one; likewise, whether a creditor by reason, for example, of theft committed by the debtor, can be preferred to a creditor from contract.

Response. It seems this must be denied, because the said creditors have only an equal right with the others, nor is there present for them as such, as for the creditor earlier in time, some special title not altogether to be rejected (cf. St. Alphonsus, III, 691). Make exception if the poor man is in grave necessity, because then the consent of the other creditors seems able to be presumed (cf. St. Alphonsus, III, 691).

Objection 1. A poor man suffers greater damage than a rich man. But restitution is ordered to repairing damage.

Response. I distinguish the major: he suffers greater damage subjectively, because he is poor, I concede; but this is per accidens to restitution. For just as on that account you are not held to restore more to him, so neither are you held to restore sooner to him than to others enjoying an equal right. He suffers greater damage objectively, that is, a violation of a greater and stronger right, I deny. But restitution is ordered to repairing the violated right, or the damage inflicted, objectively.

Objection 2. The owner suffers a greater injury (and therefore has a greater right to restitution) from theft or robbery than from an unobserved contract.

Response. The obligation of restoring does not arise from the personal injury, but from the unjust detention of the thing; and the detention in a contract, once the term of payment has elapsed, is equal and equally unjust as in theft or robbery.

Disputation 4. Whether certain creditors must be preferred to uncertain or unknown creditors, that is, to the poor, etc., who come in place of the uncertain creditors.

Response. Many affirm it, because certain creditors have an immediate right, whereas uncertain creditors have only a remote right, namely insofar as they succeed to unknown creditors. Others deny it, because, as succeeding to unknown creditors, they have a right equal to that of certain creditors. Thus the authors; but we have denied the very obligation of restoring if the creditors are unknown (n. 1011).

Disputation 5. Whether a creditor to whom the debtor has unjustly made full payment is held to restitution.

Response 1. Theoretically it must be affirmed, if the creditor accepted the restitution in bad faith, because he culpably cooperated in an unjust action. Likewise it seems theoretically to be affirmed if he accepted the restitution in good faith, because by retaining the things restored he continues or confirms the unjust act (although not culpable) of accepting full payment (St. Alphonsus, III, 693).

Response 2. Practically he is not held to restitution, because he can ask for the full payment already made; this being posited, he can retain what he received.

6. Finally come creditors by gratuitous title, or, "debts from onerous title must be paid before those which are owed gratuitously, for example from a promise; because these include a tacit condition, unless something stands in the way. Hence the debts of the deceased must be paid before all legacies, even pious ones" (St. Alphonsus, III, 689, 4°).

¹ Pupillus; l. Si non, 6, § 2, ff. de bonis auctoritate iudicis possidendis.

II. Whether and how far civil law tempers natural law, see in the Code of the country. Yet note this: 1° another's thing existing in species is to be returned to the owner; 2° debts from onerous title are to be preferred to debts from gratuitous title.

I. Restitution is to be made as soon as it can morally be made. He who cannot restore the entire damage should restore a part, if he can, and should strive according to his powers that he may be able to restore the remaining part. Delay of restitution, if there is question of a grave thing, is a grave sin from its genus, that is, he sins gravely who postpones the restitution of a grave thing for a long time, and he sins lightly who postpones it for a short time, unless grave damage to the owner would follow from the short delay (St. Alphonsus, III, 676, 679; Praxis confessarii, n. 43). A delay, for example, of three weeks is certainly brief (St. Alphonsus, loc. cit.).

II. He who has delayed restitution (or payment) is held to repair the emergent damage and ceasing profit which have followed from the delay and were foreseen at least confusedly, as follows:

1. He is held if he delayed without a legitimate cause, because by illegitimately delaying he placed or continued an unjust cause of damages.

2. He is not held if he delayed from a just cause, with the exception, more probably, of a debtor from delict; because although in the case the delay is not the unjust cause of damages, nevertheless the unjust cause was and remains the delict itself (St. Alphonsus, III, 680, 703, doubt 2).

Corollary. A dying person who is held to restitution (or payment) must be treated in this way:

1. If the dying person is in good faith, he must be warned, unless there is no time for warning, or it is feared that the warning will not be useful.

2. If the dying person was not in good faith, or has been deprived of it by the warning, let him wisely be induced to fulfill the obligation, and indeed immediately, if this can conveniently be done.

3. If the obligation cannot conveniently be fulfilled immediately, then:

a) If the obligation is public, let the dying person take care that it be fulfilled by the heirs, for example by handing over to the creditor a private written instrument completed in legitimate form.

b) If the obligation is hidden, let the sick person either hand over the sum owed to a prudent man, who may remit it to the creditor; or let him bequeath it to the creditor in his testament, if this can be done under some plausible pretext.

I. He who possesses another's thing in good faith satisfies by returning it where it is; a fortiori he is not held to transmit it elsewhere at his own expense.

II. He who possesses another's thing in bad faith is held to restore it where the owner would have it if it had not been possessed in bad faith; for he must preserve the owner entirely unharmed. Moreover, he is held to transmit it at his own expense, although he can deduct those expenses which the owner also would have made. If the expenses of transmission would be great, the price of the thing can be transmitted from the presumed consent of the owner; indeed they can be so great that transmission of the thing would be demanded irrationally by the owner (St. Alphonsus, III, 598).

III. If another's thing, or its price sent, does not reach the owner, whether because it has perished or for another reason, the following must be said:

1. A possessor in good faith, provided he has used due diligence, is freed; for he is no longer bound either by reason of the thing, which he no longer possesses, or by reason of the transmission, which was owed and, as is supposed, was duly carried out.

2. A possessor from delict per se is not freed, because by force of the delict he is held to render the owner unharmed. Per accidens he is freed if he transmitted the thing in the mode assigned by law or by the judge; likewise if the owner took the danger of the thing upon himself, which happens if he himself received the thing through an intermediary person; if he indicated the mode of transmitting; if he approved the mode proposed by the debtor or prudently to be chosen (St. Alphonsus, III, 704).

Question 1. Whether a debtor from delict is freed who entrusts the things to be restored to the confessor, even if they do not reach the owner.

Response. Many affirm it, because in law the confessor is held as quasi-mandatary of the creditor and therefore can accept the thing in the creditor's name. But St. Alphonsus (III, 704) deservedly prefers the contrary opinion, because the confessor, just as another person, cannot accept the thing in the creditor's name unless the creditor has granted that faculty to him. That he would grant it if asked does not suffice for him to enjoy it here and now.

Question 2. Whether a debtor from delict is freed who, by the counsel or precept of the confessor, has spent the thing to be restored to the owner on the poor or on pious causes.

Response. Negatively, because he has not preserved the creditor unharmed, to which he is held by force of the delict (St. Alphonsus, loc. cit.). This nevertheless does not prevent that sometimes, on account of the known liberal disposition of the creditor, his consent or condonation can be presumed.

Restitution.—Justice not only commands that one pay or give back what is due in voluntary transactions, but also that one repair injury which one has caused in involuntary transactions. But the four acts of payment, restoration, satisfaction, and restitution must not be confused.

(a) Thus, payment is the lawful bestowal by one person on another person of something of value in return for some other thing of value. It is clear that payment differs from satisfaction and restitution, since it supposes no act of injustice done.

(b) Restoration is the return to another of his property of which one had just possession, as when a borrower gives back to the lender, or a depositee to the depositor. This also differs from satisfaction and restitution, since it is a voluntary transaction (see 1792, 1796).

Differences between Satisfaction and Restitution.—(a) They differ as to their principle or cause, since satisfaction is due for injury to honor, restitution for injury to goods by unjust detention or unjust damage. Hence, a person who has dishonored another (e.g., by disrespect) is bound to satisfaction; a person who has injured another (e.g., by destroying his goods) is bound to restitution; a person who has both injured and dishonored another (e.g., by adding insults to robbery) is bound to restitution and satisfaction.

(b) Satisfaction and restitution differ as to their term or object, since satisfaction is chiefly concerned with the person to whom amends must be made (as by apology), while restitution is chiefly concerned with the thing which must be given back in itself or in its equivalent.

When Restitution Is Due.—Restitution is the act by which one places another in renewed possession or ownership or chance of ownership of that which is owed to him because it is his by reason of a strict right in re or ad rem; in other words, it restores the equality that existed before an injury was done to the goods of another.

(a) Thus, restitution is not due for violation of virtues other than justice, because these virtues are not concerned with strict obligations and rights. Repentance and satisfaction are due for all sins, but they are not the same thing as restitution. Hence, one is not bound to restitution if one refused to help with alms a person in extreme need, or if, not being obliged to it by office, one neglected to extinguish a fire or to prevent a robbery. These are sins against charity, not against justice.

(b) Restitution is not due for violations of virtues that pertain to justice but do not confer strict rights, and hence it is only a violation of commutative justice that entails the obligation of restitution. Thus, if one has been surly or ungrateful, no legal right has been violated and no restitution is due.

Does Distributive Injustice Oblige to Restitution?—(a) If only distributive injustice is committed (e. g., if a parent gives his children all necessaries but shows special favor to those that are less deserving), there is no duty of restitution, for there is no strict claim to special favors. (b) If commutative injustice accompanies the distributive injustice (e.g., if a ruler acts against his agreement to give the best position to the person who passes the best examination), there is a duty of restitution, for there is a strict claim to rights under contract.

Distributive Justice and the Violation of Strict Rights.—Injustice in distribution is frequently accompanied by injustice in transaction on account of some strict right violated, and hence by reason of the latter injustice there will be a duty of restitution (see 1708, 1808).

(a) Thus, distributive injustice is accompanied by violation of a strict right of society when an unfair distribution is contrary to agreement made with the community (e.g., when one is appointed or paid especially to make fair distributions, or the law or contract expressly imposes this obligation), or when it causes harm to the community which one is bound ex officio to prevent (e.g., when one appoints as public physician or surgeon a person who is entirely unfitted for the post).

(b) Distributive injustice is accompanied by violation of a strict right of an individual when it is against contract (e.g., when a person undertakes to select the best statue or portrait presented in a contest, but chooses one that is inferior), or when it inflicts loss on a private person (e.g., when a tax assessor requires more than is due from some persons, or an examiner admits to a school which receives only a limited number an unworthy candidate and thus excludes a worthy one, or a board rejects a worthy candidate as unworthy).

Commutative Justice and Unfair Awards of Prizes.—Unfair awards of prizes in competitions are not violations of commutative justice unless the following conditions are present:

(a) the promise of award must be given as a contract binding in justice, for if the promisor intends only to bind himself in fidelity, the promisee obtains no strict right. Hence, an unfair distribution is not against commutative justice if a competition has not the character of a real contest or of an onerous compact to reward the person who surpasses his rivals, but is rather an opportunity to compete for the free bounty of the promisor (e.g., if the organizer of an entertainment offers a prize for the prettiest baby), or an encouragement to useful industry (e.g., a first prize for the best garden in a neighborhood). On the contrary, if the promise is part of an onerous contract, the promisor is bound in justice and the promisee obtains a strict right. This is the case when the competition has the character of a real contest, in which the contestants must undergo special labor, preparation, expense or trouble, etc., in order that the award be given to the most meritorious;

(b) the thing promised as subject of award must be the prize, and not merely a claim or right to be considered for the prize. Hence, if an examination is held in order that a number of worthy persons may be listed for future vacancies in offices or dignities, the person who passes as most worthy has no strict right to be given an office or dignity, but only to be considered for it.

Has a person who passes as most worthy in an examination held in order to fill a vacant post a strict right to receive the post?

(a) According to the common opinion he has a strict right, because there is at least an implicit contract to the effect that the position will be given to the most worthy, since the examination is competitive.

(b) According to some authorities he has no strict right, because public positions are not to be regarded as rewards of merit, and the examination is not part of a contract but is only a means used by a superior to assist him in acting according to distributive justice. Nevertheless, even in this opinion an unjust award is a sin, and at times a grave sin, against distributive justice, and may accidentally be joined with commutative injustice (see 1755).

(c) Under the civil service method, or merit system, of appointment, the appointing official is bound by law to observe the rules of the civil service commission. The usual procedure is for the commission to submit the names of the three persons highest on the examination list. Position on the list is determined by competitive examination plus preferential points for veterans, experience in jobs, etc. (On the whole the preferential system does not seem to involve any injustice to those who do not receive the preference.) One of the three must be chosen for the first vacancy; for the second vacancy the remaining two, together with the next highest eligible, are proposed. Grave injustice against distributive justice would be done in not proceeding according to the legal method, and some degree of injustice might be done to an eligible who is illegally removed from a list, passed over, etc. Of the three highest eligibles no one has a strict right to the vacant post, but solely the right to be seriously considered.

What should be said of a superior who would promote undeserving persons to ecclesiastical benefices?

(a) As regards guilt, it is a mortal sin to confer a benefice on one who is unworthy, or even (when there is question of a benefice to which the care of souls is attached) on one who is less worthy (see Canon 459, Sec. 1).

(b) As regards restitution, there is an obligation of reparation to the community, when it is made to suffer loss, and of compensation to an individual who is passed over in spite of his strict right (see three preceding paragraphs).

The Obligation of Restitution.—(a) The obligation is both of natural and divine law. Reason itself dictates that everyone should receive his due, and revelation expressly commands restitution, as when it declares that he who has injured his neighbor’s field or vineyard must restore according to the damage done (Exod., xxii. 5).

(b) The obligation is both of means and of precept, for without restitution the offender does not obtain pardon from God (Ezech., xxxiii. 13 sqq,; Tob., ii. 20 sqq.). Hence, one who has seriously injured his neighbor cannot be saved unless he actually makes restitution, if he is able, or intends to make restitution when possible, if here and now he is not able to do so. A debtor who makes no effort to make restitution (e.g., one who refuses to deny himself luxuries, to curtail his expenses, to leave restitution money in his will), cannot be said to have a sincere intention of fulfilling his duty. But it is not true that a person who dies in venial sin on account of restitution neglected must remain in Purgatory till all the restitution is made; for this would make the punishment depend on the negligence of the heirs or on accident.

(c) The obligation is grave if the damage (absolute or relative) and the fault were both grave, for restitution is an obligation of strict justice (see 1753); the obligation is light if both the damage and the fault were light, for the injury then is light.

Duties of Confessors about the Obligation of Restitution.—(a) As to confession, the penitent is obliged to mention the number of sins committed against the duty of restitution, if there have been many acts of intention not to pay (see 202 sqq.); but as a rule those who have for a long time continued in sinful neglect of the duty of restitution have committed only one sin thereby, or else they do not apprehend their duty of mentioning the distinct internal acts, and hence confessors are advised not to question overmuch about this.

(b) As to absolution, the penitent lacks true contrition if he is under a serious obligation to make restitution and is wilfully opposed to the performance of this duty at all or at the proper time. Such a one may not be absolved. But the confessor should not admonish a penitent of the duty of restitution, if the penitent is in good faith and the admonition would only do harm. If the obligation of restitution is only light, absolution may not be refused, and prudence will often advise that no admonition about the obligation be given.

There are a number of situations possible when damage done is grave and culpability slight.

(a) Thus, the damage may be entirely involuntary, as when the offender could not foresee it and did not wish it (e.g., Sempronius commits a venial sin by speaking harshly to Claudius, whom he likes, but the latter is so depressed at this that he commits suicide). In this case there is clearly no obligation of restitution.

(b) The damage may be voluntary only interpretatively, as when the offender could not foresee it, but would have willed it had he foreseen it (e.g., Sempronius is glad when he learns that Claudius committed suicide, but would be much surprised if he knew that a harsh word of his caused it). In this case according to some there is a grave duty of restitution, because internal guilt and external damage are present; but others, with greater probability, deny the duty of restitution, for the damage was not caused by the internal sin of hate, which is not effective of itself, nor by the external harsh word, which was an occasion rather than a cause (see 1447, 1763).

(c) The damage may be voluntary directly, as when the offender wills it in itself (e.g., Titus steals a considerable sum from Balbus, but he is invincibly ignorant and thinks that the wealth of Balbus makes the sin only venial), or the damage done is voluntary indirectly (e.g., Caius is guilty of slight carelessness in guarding his cattle, and they get into a neighbor’s garden and cause great damage to crops; Caius foresaw some damage, but he could not have foreseen the actual grave damage that was done). About these cases there are various opinions, which will be given in 1765.

The person to whom restitution must be made is the person whose strict right has been violated, or, in his absence, it is society. But the following cases should be distinguished:

(a) when the injured person is known for certain and his right is certain, restitution should be made to the injured person or his representatives or successors, or, if this is not possible, to charitable or pious causes;

(b) when the injured person is entirely unknown, if the one who is the cause of the loss is in good faith, his obligations are those of a possessor in good faith; but if he is in bad faith, the common opinion is that he is bound, at least from customary law, to make restitution by giving to the poor or to religion;

(c) when the injured person is partly unknown, the person who is the cause of the loss should make restitution to the best of his ability. If the doubt extends to only a few persons (say four or five), any one of whom may be the injured person, restitution should be divided in the best way possible among these persons; if the doubt extends to many, but the injured persons were only a few, it seems that restitution may be made by giving to charity or religion either in the place of the injury or elsewhere; if the doubt extends to many, and the injured persons were many inhabitants of the locality, restitution must be made if possible to the injured parties themselves, otherwise to some public cause of the local community.

Order of Preference Among Creditors.—The natural order of preference is to be shown to creditors when the debtor is unable to pay them all.

(a) Those who have a right in re (e.g., those whose property is held by the debtor) have precedence over those who have only a right ad rem (e.g., those who are creditors from contract).

(b) Creditors from onerous contract or delinquency, it is generally admitted, have priority over creditors from gratuitous contract.

(c) Creditors from delinquency and creditors from onerous contract, according to what seems to be the common opinion, are equal in rights and should be settled with pro rata.

(d) Debts that are certain have priority over debts that are uncertain, according to some; others deny this, but admit that the uncertain debts need be paid only in proportion to their probability.

(e) Creditors who are certain are by some preferred to creditors who are uncertain; but others think that payment to the poor, in place of the unknown creditor, is the latter’s presumed will, and that it has an equal standing with debts owed to known creditors.

(f) Poor creditors have no just claim to preference over rich creditors; but charity dictates that, when the poor creditor is in distress, he should be given the preference.

(g) Earlier creditors have a preference over later creditors in a real claim, but it is disputed whether this holds also in a personal claim.

(h) The creditor who asks for a settlement sooner has a preference, if the petition is made juridically, and perhaps also if it is made privately.

The order of preference among creditors according to civil law is generally as follows: (a) proprietary creditors (i.e., those whose property is held by the debtor); (b) privileged creditors (i.e., those whose debts have a special urgency, such as judicial expenses, doctors’ bills, wages for hired help, living costs, etc.); (c) hypothecatory creditors (i.e., those who have claims against the property of the debtor, in the form of liens, mortgages, etc.); (d) common creditors (i.e., all those who are paid after the previous creditors have been satisfied). American law contains provisions in regard to dispositions of property made during the four months before bankruptcy is tiled, so as to protect the creditors of a person who is insolvent. The property of a bankrupt is placed in the hands of an assignee and allowance is made for the debtor’s needs and perfected liens (i.e., charges legally made upon property for debt). The property is then subject to levy by the creditors as follows: maintenance expenses, legal fees, costs of administration, wages of workmen, taxes, debts having priority under Federal or State law.

The “Thing” to Be Restored.—(a) In case of unjust possession, the identical object must be restored, if it has an individual value; otherwise it may be restored in its equivalent. (b) In case of contract, the identical object must be restored, if that is the agreement (e.g., in loan of a chattel, or deposit), otherwise it may be restored in its equivalent (e.g., in loan of money).

The “Amount” of Restitution in Certain Cases.—(a) When an Object Had Various Values During the Time of Its Possession in Bad Faith.—If the change was from an internal cause and was for the better (e.g., the calf stolen by a thief has become a cow), the return must be made in the improved state; if the change was from an internal cause, and was for the worse but would have happened in any case (e.g., the cow taken by the thief has become old), return must be made in the actual state; if the change was from an internal cause and for the worse, which would not have happened had the object remained with the owner (e.g., a cow taken by a thief has become lame on account of the thief’s carelessness), return must be made also for the deterioration. If the change was from an external cause (e.g., the wine taken by a thief has risen and declined in value several times), it seems that practically nothing more can be imposed by way of restitution than the value the object had when taken.

(b) When Unjust Damage has been Done.—If the damage was caused positively, the injured person must be indemnified entirely, if the damage was caused negatively, the injured party should be indemnified more or less according to the reasonable expectation he had of the gain of which he was deprived.

The “Manner” of Making Restitution.—The general rule is that it should be made in such a way that the injury will be repaired and the injured person indemnified for his loss. Generally speaking, there is freedom of choice as to various forms in the modes of restitution. Thus, it may be made publicly or secretly, directly or through an intermediary, positively (by payment) or negatively (by cancellation of a debt). It may even be made without the knowledge and intention of the parties. (a) Thus, the injured party may be compensated, even though he is unaware that he was cheated or that he is being paid back; (b) the offender may restore, even though he does not know he is doing so (e.g., if he pays while intoxicated), and probably even though he has no express intention of doing so (e.g., if he makes a present of $10, and then remembers that he owed damages to the amount of $10).

Second Restitution.—Natural law must be applied to certain cases in which restitution sent through an intermediary perishes on the way through no fault of the debtor. (a) If the debt is owed on account of possession in good faith, the debtor is not bound to a second restitution. (b) If the debt is owed on account of contract, the goods perish to the owner. Thus, if the contract was one of loan, the loss must be borne by the lender; if it was one of sale, by the seller. (e) If the debt is owed on account of delinquency, there is an obligation to a second restitution, unless the injured party assumed the risk of transmission. It is held as probable that the choice of the confessor as intermediary for restitution has the consent of the injured party, and hence that, if the restitution perishes on the way through chance or the fault of a third party, there is no duty of second restitution.

The “Time” When Restitution Must Be Made.—(a) Internal restitution, or the purpose of restoring, must be made at once, that is, as soon as one adverts to the necessity of this resolve. (b) External restitution, or the fulfillment of the resolution, must be made at the first suitable opportunity.

Unjust Refusal to Make Restitution or Pay Bills.—(a) Those who unjustly refuse to make restitution or to pay their bills at the proper time are guilty of mortal or venial sin according to the damage their refusal causes to the creditor. (b) They are not worthy of absolution if there is serious bad faith on their part, as when they have many times broken their promises, or when they refuse to pay even the part or installment which is within their power. (c) They are bound to additional damages for the losses caused by the unjustifiable delay.

The “Place” Where Restitution Must Be Made.—(a) He who is a debtor on account of injury must make restitution at the place where the thing would be were it not for the injury. (b) He who is a debtor on account of possession in good faith should notify the owner where the property is, but he is not obliged to bring it to the owner. (c) He who is a debtor on account of contract must abide by the agreement, or by the statutes that regulate the contract. Thus, in this country the place of delivery in sales is according to law the seller’s place of business or his residence.

Burden of Expense or Loss When Restitution Is Sent to the Place of the Creditor.—(a) If the obligation of restitution arises from injury, the debtor is generally bound to pay the transportation and to stand the loss when the goods perish in transit. (b) If the obligation arises from contract, the expenses and losses must be borne according to the agreement.

If nothing was stipulated, it seems equitable that the expenses of transportation be borne by the party who benefits or who requested the contract. According to the Sales Act in the United States, the seller is the loser when goods perish in transit, if a place of delivery had been agreed on; but the buyer is the loser when in pursuance of the contract the goods had been delivered to a carrier for transmission to the buyer (see 1888 d).

1. Forbinus stole a huge quantity of wine, then of the value of 1000 lire, which its owner was going to keep so that he might sell it in the month of May, hoping to be able to sell it for 1200 lire. Forbinus kept the wine until the month of November, and then, the price of wine having increased, sold it for 1400 lire.

Q. 1. How much must be restored? — 2. How much must Forbinus now restore?

R. To the 1st. Cf. I. M. 1424 seqq. — To the 2nd. Forbinus must now restore 1400 lire. For since he no longer has the wine, he must restore its equivalent, which is the aforesaid price. For then, when he sold the wine, just as the wine, so the price of the wine pertained to the owner of the wine, and Forbinus then had the obligation of restoring the wine, and so of restoring it according to the value which it then had. Because just as the wine, so the wine according to its increased value pertained to its owner. Therefore that obligation, the sale of the wine having been made, did not cease, but remained even after the sale. Therefore Sabinus [printed: Sabinus; sense requires Forbinus] is held to restore the whole price accepted. Besides, if Forbinus in the month of November had restored the wine, as he ought, to its owner, this owner, who wished to sell the wine in the month of May, then hoping for a profit of 1200 lire, would certainly then have sold it, and would then have obtained a profit not of 200 lire, but of 400 lire. Therefore, if Forbinus does not restore 1400 lire, but restores either only 1000 lire, or at least 1200 lire, he does not restore to the owner of the wine the whole of that which is his, nor does he render him unharmed by reason of ceasing profit. I. M. 1346, 1424; G. 616.

Nor is it valid here to object that that excess is the fruit of his own industry, by reason of the sale made. For just as knowingly to accept another’s thing is an injurious action against justice, so also knowingly to detain another’s thing is against justice, and so too knowingly to sell another’s thing is an injurious action against justice. Wherefore in the Case someone would truly become unjustly rich from another’s thing, with the injury of another, by unjustly impeding another’s profit. Therefore that whole price, since in the Case it is nothing except the fruit of a merely unjust sale, is owed to the owner of the thing.

2. Tetradius, Nicodemus, and Carolus stole 6,000 lire from Hector. Tetradius, repenting of the deed, while Nicodemus and Carolus were unwilling to restore, restored the whole sum of 6,000 lire to Hector. Carolus having died, Nicodemus, rather late converted to better fruit, asks his confessor to whom and how much must be restored.

Q. 1. In what order must restitution be made? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1429 seqq. — To the 2nd. Since Tetradius, Nicodemus, and Carolus, by common consent, as is deduced from the Case, stole the aforesaid sum together, they are held to restitution in solidum. I. M. 1425 seqq. Wherefore, Nicodemus and Carolus being unwilling to restore, Tetradius was held to restitution of the whole sum toward Hector; and so he did well by restoring it all to Hector. Complete restitution having been made by Tetradius, Nicodemus and Carolus are no longer held to restore to the same Hector, but they are held to render Tetradius unharmed, by restoring to him what they themselves should have paid to Hector, namely each one of them ought to restore to Tetradius the sum of 2,000 lire. “Because restitution is principally ordained to removing damage from him from whom something has been unjustly taken away, therefore after sufficient restitution has been made to him by one, the others are not held to restore further to him, but rather to make reimbursement to him who restored, who nevertheless can condone.” S. Th. 2.2. q. 62. a. 6 ad 3. “When one restores to him who suffered damage, another is not held to restore to the same one. But those who are principal in the deed, and to whom the thing came, are held to restore to others who restored.” S. Th. 2.2. q. 62. a. 7 ad 2.

Moreover Nicodemus must restore to Tetradius the sum of 3,000 lire. For if the three thieves wished to restore, each would restore his own part, namely the sum of 2,000 lire. But since Carolus previously was unwilling to restore, and now can no longer restore, because he is dead, and from another source each one is held to restitution in solidum, hence it happens that the whole damage inflicted by the three must be compensated by two only, namely by Tetradius and Nicodemus; and so each one is held to half part of the damage, namely to restoring 3,000 lire. But the whole damage was compensated by Tetradius, and therefore he himself suffered damage. Therefore the damage must now be compensated to him, and compensated for the half part of the whole damage previously inflicted, since Carolus was unwilling to restore, and now can no longer restore.

3. A certain unknown pilgrim asked Augustine, a priest, to celebrate 50 Masses according to his intention, at the same time handing to him a folded banknote, saying, behold for you a slight stipend of 100 lire. But after that pilgrim had now departed, Augustine, unfolding the banknote, sees that there is not one note of 100 lire, but two. Since it was impossible for Augustine to find the pilgrim so that he might restore to him one hundred lire, he retained them for himself, and instead of celebrating 50 Masses, he celebrated 100 Masses for the pilgrim.

Q. 1. How must restitution be made? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1447 seqq. — To the 2nd. There does not seem to be doubt that the pilgrim erred by handing over 200 lire for 100 lire, which he offered to the priest for the celebration of Masses. Wherefore the other 100 lire must be restored to the pilgrim. But since it was impossible to find the pilgrim and to make restitution to him of the 100 lire, Augustine seems to have satisfied his obligation altogether sufficiently by celebration of another 50 Masses. For first, those 100 lire could well be held as a lost thing, and Augustine consequently could simply retain them for himself, the impossibility of finding the pilgrim standing. Besides, they could be distributed in alms of the poor and in pious causes. Finally, since in the Case an equivalent cannot be recompensed, it suffices that what is possible be recompensed. Moreover, in the Case compensation is possible by celebration of Masses, which, from the petition made for the other 50 Masses, will certainly be according to the intention of that same pilgrim, reasonably altogether presumed. In truth, when someone has stolen, e.g., a horse, and the horse dies by his fault, since he can no longer restore the horse, it suffices that he restore the price of the horse, or compensate the horse taken away by another equivalent thing. Why therefore in the Case, since restitution of 100 lire is not possible, can that restitution not be made in the one possible mode, namely by the celebration of Masses? I. M. 890, 893, 1447; G. 710, 715; S. Th. 2.2. q. 62. a. 2 ad 1, ad 2; a. 5 ad 3.

4. Octavius received gratuitously and entirely as a loan from Curtius a huge sum of money, to be restored after two years. Meanwhile Curtius dies, and, the two-year period having elapsed, his natural heirs do not demand restitution of the aforesaid sum from Octavius, since they are ignorant of the aforesaid contract of loan. But Octavius has parents placed in grave necessity, whom in the present he could no longer sustain if he restored the aforesaid sum. Wherefore he asks his confessor whether he can defer restitution.

Q. 1. When must restitution be made? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1455 seqq. — To the 2nd. Octavius seems able to defer restitution, by reason of the grave necessity in which his parents are placed, and which, restitution having been made, would be changed into extreme necessity. For this reason is sufficient for delaying restitution. Nor truly from the Case does it appear that the heirs of Curtius are placed in the same necessity, as is drawn from the very fact that Curtius gratuitously and entirely gave that huge sum as a loan to Octavius. I. M. 1464. “When someone cannot restore at once, the very inability absolves him from making restitution at that instant; just as also he is totally absolved from restitution if he is altogether unable.” S. Th. 2.2. q. 63. a. 8 ad 2. “It must be said that someone ought to satisfy, from that which is proper to himself, rather his parents, or those from whom he accepted greater benefits; but one ought not recompense a benefactor from another’s goods; which would happen if what he owes to one he restored to another; unless perhaps in a case of extreme necessity, in which someone could and ought even to take away another’s goods, in order to help his father.” — I. M. 1455, 1459; Lugo d. 20. n. 127, 128.

5. Seius owes to Philippus, from a contract of sale, a huge sum of money. The constituted day of payment has now elapsed, and Seius begins to pay the aforesaid sum by parts, saying to Philippus that he cannot now restore it all at once. But the reason is not that he himself is unable to make full restitution, but because from the aforesaid money he himself perceives an emolument. — Does he act rightly?

R. Negatively, unless the consent of Philippus accedes. For the constituted day of payment having elapsed, the obligation now urges of no longer retaining another’s thing. Nor truly does the reason brought forward help, because he perceives an emolument from the money. For since that money is now owed to another, just as it is no longer lawful to retain it, so neither is it any longer lawful to perceive an emolument from it. Otherwise Seius could for this reason indefinitely defer the payment of the money, and since he now has the thing bought, whose fruits he himself now perceives, he would at the same time retain its price and perceive all its advantage, which certainly is against justice. If this reason of perceiving an emolument sufficed for deferring the restitution of money or of another alien thing, even a thief for the same motive could retain with himself at least for a time a notable sum of money, gradually restoring it by parts; which is altogether foreign to the truth. Casus Consc. Bonon. Dioec. year 1759, month of August, Case 3; I. M. 1132, 1455.

The principal circumstances of restitution are contained in this verse:

How much will you restore? To whom? In what order? In what manner? When?

To whom must restitution be made? Restitution must be made to the certain and known owner whose right has been injured, whenever it can be done without grave difficulty and injury to another, and no other cause excusing from restitution is present. For through restitution all things return to their former state.

Hence he who has taken away a thing deposited with another, or leased or lent, must restore not to the owner but to the possessor himself. For the possessor cannot without injury be deprived of the right of custody, use, or possession, unless he himself consents. L. 596, 599.; H. A. 64.; St. Thomas, 2. 2, q. 62, a. 5.; C. I. 1241.; C. G. 1239.; C. A. 1424. Cf. 1343, 1351.; D'Annib., ed. 3, p. 2, n. 242. From C. I. 1243.; C. G. 1241.; C. H. 1163.; C. A. 1424., payment made to a creditor is not valid if he was incapable, unless it is proved that what was paid fell to his utility. On the contrary, from C. I. 1242.; C. G. 1240.; C. H. 1164., payment made in good faith to him who possesses the title of the credit is valid, even if afterward the possessor of the credit suffers eviction, for the possessor is held as the legitimate owner.

To whom is restitution to be made when it is uncertain, whether unknown or doubtful, to whom the thing owed belongs? "When goods to be restored, or whatever debts, are uncertain, i.e., you do not know him to whom they are owed, or you cannot approach him, or restore to him; then if you have them without delict, as if you found them, or from a merchant, e.g., through error received two ells of cloth for one, and now he has departed, nor do you know where he has gone, you are held to employ some diligence in inquiring; after which, if there is no hope of knowing the owner, it is probable that you are not held to give them to the poor ... but can retain them for yourself," as if found.

L. 580. And this is valid both then when the owner of the thing does not know with whom his thing is found, and then when he himself knows with whom his thing is, as, e.g., if an unknown traveler left a thing in a public inn. For if he in no way claims it, and otherwise it is impossible to know him, the thing is understood as abandoned. But since it has not been lost, it will have to be restored if it is sought again. For the cause of possession cannot be changed.

Without delict; for a possessor in bad faith restores to the poor or to pious causes. For no one can become rich unjustly from another's thing. And if there is question of debt by reason of damage inflicted, restitution is also to be made to the poor or to pious causes. But if the owners are uncertain or doubtful, restitution is to be made to those to whom the thing more probably or probably is owed.

If the owner of the thing is uncertain or doubtful only among a few, e.g., three or four, "then restitution cannot be made to the poor, but the thing is to be divided among those among whom the defrauded person exists." But if the uncertain or doubtful owner is among many, e.g., among the inhabitants of a place, "then restitution must be made to the poor, as is had in C. Cum tu de Usuris.... Moreover it suffices that it be made to the poor of any place whatever. It also suffices that it be made to pious places, as they commonly teach.... But if many and various uncertain owners of some community have been affected by damage, then restitution is altogether to be made to the poor of the same injured community." L. 590, 595, 596.; St. Thomas, 2. 2, q. 62, a. 5 ad 3. "If, in the case in which you are held to restore a thing to the poor, you give it to yourself, truly needy, then indeed, even if afterward you are made richer, you are still not held to restore." L. 696.; Lugo d. 20, n. 8.; L. 580.

Whether, in the case of an unknown owner, restitution is to be made to the poor from natural law, from the presumed will of the owner, or from canon law, is a question among the doctors. From canon law. Namely, the restitution to be made to the poor of gain wrongly received from office, C. Cum sit 16. de Iudaeis etc., and from usuries, C. Cum tu 5. de Usur., is extended to all debts arising from delict. But this same disposition of canon law seems to be sought back from natural law, namely that, by that restitution made to the poor in place of the owner, society itself may be made harmless, and so provision may be made for its security; for theft both injures the peace and concord of private persons among themselves and injures the common good and commerce of society. Moreover, since the thing cannot be restored to its owner, nature itself and the presumed will of the same owner require that it yield to his spiritual utility.

"It is to be noted that concerning these uncertain debts a composition can well be made by the Bull of the Crusade.... This composition can also be made through the Sacred Penitentiary.... This composition is usually also conceded for ecclesiastical fruits wrongly received." L. 591, 593. Uncertain, namely, if the owner is unknown, and it is no longer probable that he will ever appear. Composition; to compound is for the Holy See to remit the debt in part, the other part having been expended for pious causes. In order that the composition be licit and ratified, a just cause is needed as regards uncertain debts; and when it has been duly made, even if the owner appears, no restitution any longer belongs to him. But in order that it be ratified as regards ecclesiastical fruits, when these are exacted from a canonical penalty, no just cause is needed, because it falls into a dispensation of the law. - Lugo d. 21.; E. M.

Resolutions: If someone selling in some city has defrauded many in weight or price, restitution is to be made by increasing in the same way the weight or measure, or by diminishing the price toward ordinary buyers, who are presumed to have been damaged, if this can easily be done; otherwise restitution is to be made to the poor.

Whether, when your creditor was forced to make cession of goods, you ought to restore to him or to his creditors? Generally speaking, you ought not to restore to your creditor, but your debt must be manifested by you to his creditors. The reason is that although the creditors of the one ceding do not have direct dominion over his goods, nevertheless they enjoy a strict right that they be preserved harmless from those goods. Yet sometimes you could restore to your creditor, e.g., if the debt is small, if he is upright, and you believe that he will restore to the creditors; likewise if he is in grave necessity, and greatly needs that debt in order to sustain life, because, as theologians commonly teach, one ceding his goods can withdraw those things which are altogether necessary for living. L. 699.; Gousset 772.; C. H. 1914.

What is the quantity to be restored? - As much must be restored as the other has been injured. The reason is that by force of commutative justice equality must be preserved, and when injured it must be repaired. But it is not repaired unless an equation is made between what was taken away and what is returned. Hence, if someone is damaged because that which he actually had is taken away from him, such damage is always to be restored according to the recompense of an equal thing. But if someone has been damaged by being impeded from acquiring what he was on the way to having, it is not necessary to recompense such damage equally, because it is less to have something virtually than to have it actually; but recompense is to be made according to the condition of persons and affairs. L. 614.; St. Thomas, 2. 2, q. 62, a. 1, 3, 4, 5.; C. A. 1323, 1411, 1412.; C. B. 249 seqq., 272.

What is solidarity? Solidarity, or the obligation of restoring in solidum, is the burden incumbent of repairing the whole damage inflicted. For the reason for restoring, or repairing damage, is because one was the cause of the damage. Therefore he who was only partially the cause of the damage is held only to a partial restitution or reparation of the damage, namely in that part in which he himself was the cause of the damage, whether he himself alone injured, or whether others also partially injured separately from him, and then each one is held for the damage inflicted by himself. But he who was the cause of the whole damage must repair the whole damage. Therefore, in order that one be obliged in solidum to restitution or reparation of damage, he ought to have been the efficacious cause of the whole damage. But if only he himself is the efficacious cause of the whole damage, he indeed is held in solidum or to repairing the whole damage by himself alone, but with no solidarity with others. But if, together with other cooperators, he was the cause of the whole damage, then solidarity with others is present, and together with others he is held in solidum to repairing the whole damage. Together with other cooperators; nevertheless, if several, but separately one from another, were an adequate cause of the whole damage, each is held to repairing the whole damage, which however is to be divided equally among all if all restore; and so also all are held in solidum. But if one placed an inadequate cause of damage, e.g., wounded an ox non-lethally, and another an adequate cause by killing the ox, the former is held concerning the wounded ox, the latter concerning the killed one; the former concerning the damage inflicted by himself, the latter concerning the whole, or in solidum. - C. A. 1391, 1302.; C. B. 840.

When is someone the total cause of damage? - Someone can be the total cause of damage either morally, by moving others to inflict damage, or physically, by inflicting and executing the damage, C. A. 1301. Someone is the physical total cause of damage when he places an action necessary and sufficient for the whole effect, as if someone fires upon another in order to kill him; when he places an action sufficient, although not necessary, actually influencing the whole effect, as when two at once fire upon another and kill him; when he places an action indeed insufficient, but necessary, as if four cannot carry away a beam, a fifth approaches, and they carry it away.

The reason is that in all these cases one influences the whole damage by his action. Someone likewise is the moral cause of the whole damage when by mandate, counsel, etc., he moves by an influence necessary and sufficient for inflicting the whole damage; when, together with another or with others acting morally, he concurs by a moral influence of itself sufficient for the whole effect, although not necessary, yet actually influencing the whole effect, as if several are at once commanding, counseling, etc., and any one of them by his mandate, counsel, etc., suffices for the execution of the whole effect, and actually moves efficaciously to that execution; when he concurs toward the whole effect by an influence necessary, although not sufficient, as if someone shows the sole way of executing the thing.

The reason likewise is that in these cases one morally influences the whole effect. Someone is the cause of the whole damage, whether physical or moral, in the case of a common conspiracy, although he concurs toward the damage by only a partial influence. For with a moral conspiracy and unity of several among themselves standing, each one participates in the influence of the others, and so becomes the cause of the whole.

Someone is not the cause of the whole damage, whether physical or moral, if he is not sufficient for the whole effect, nor is necessary for it, because without him the whole effect would still follow; as if four carry away a beam, and a fifth approaches, helping them, with the case of conspiracy excluded, since the other approaching has an influence merely partial, and since no conspiracy is present, he is not morally joined to the others.

But the question is whether one is the cause of the whole damage who influences it by an influence sufficient for the whole damage, but not necessary, with the case nevertheless excluded that he influences at once together with others; e.g., if someone, without any conspiracy with others, sets fire to another's house, which others had already set on fire, gives counsel already given by others, etc. Others probably affirm, because since the influence is sufficient for the whole damage, then he is the cause of the whole damage, since he influences the whole. Others more probably deny, because since that influence is not necessary for the whole damage, and is added to another influence, the influence in reality is only partial in the whole damage, which would nonetheless have occurred without such concurrence. L. 579.

Whether you are held in solidum in doubt whether you influenced the whole damage? Resp. Negatively, because a certain burden cannot be imposed for an uncertain obligation. L. 577. Cf. C. A. 1303.

Whether you are held in solidum in doubt whether others restored their part pro rata? Resp. More probably negatively, if, after diligent inquiry has been made, the doubt perseveres, because a cooperator is held to nothing besides his own part, except in the defect of another; and if there is doubt about that defect, there is doubt about the obligation.

How manyfold is the order of restitution? - The order of restitution is twofold: the first on the part of those who ought to restore, when several have cooperated in the same damage; the second on the part of those to whom restitution ought to be made. L. 579.

What order is to be observed as regards cooperators? Cooperators in the damage of another are either held to restitution for a proportional part, or are held to restitution in solidum, namely each one to restoring the whole. If the first, no order necessarily has to be observed among them. If the second, order among them necessarily has to be observed. For then the obligation of restoring in solidum is an obligation by which one is held to restore or repair the whole damage inflicted by several, when several concurred together to inflict the whole damage. Therefore it is altogether necessary that order be observed. For he who has suffered damage has a right only to one integral restitution or reparation of the damage. Therefore several damagers cannot be obliged in solidum absolutely, but only conditionally, namely if others who are held prior do not pay; or if others who are held at once together do not pay. L. 579.; St. Thomas, 2. 2, q. 62, a. 6 ad 3.; a. 7 ad 2.

What order is to be observed as regards cooperators obliged in solidum? - If cooperators concur by a diverse species or grade of cooperation, then in the first place the principal causes of the damage are held; so that there is held: 1. The possessor of the thing, in individual form or in its equivalent, indeed even if he unjustly destroyed the thing without becoming richer from it. 2. The one commanding; yet if the one commanding was the principal cause both of the taking away of the thing and of its destruction, or only of its destruction, then he is held in the first place, as the principal damager. 3. The executor, namely the mere executor of the damage inflicted, as an instrumental cause.

But in the second place secondary causes are held; so that there are held 1. the remaining positive cooperators; 2. negative cooperators. The reason is that each one is held to restitution according as he influences the damage of another. Positive, secondary causes, such as one counseling, consenting, praising, participating, since some are not subordinated to others, are held equally, in the same place, yet more or less according to greater or lesser influence, if there is question of restitution for a proportional part. Among negative causes those are held first which influenced the damage more immediately and more. And so the guard is held first concerning the fire of a forest, then the steward. L. 560, 580.; St. Thomas, 2. 2, q. 62, a. 7.; C. A. 1301, 1302, 1304, 1312.

Resolutions: Secondary causes are held to nothing if the principal cause has restored or has obtained remission of the debt. For secondary causes are held only in the defect of the principal cause. But when the principal ceases, the accessory ceases. Hence, if one of the secondary causes restores, the principal cause is held to make it harmless; likewise, if a secondary cause is freed by the creditor, the principal cause is not therefore freed. For the obligation of the latter is independent of the obligation of the former. St. Thomas, 2. 2, q. 62, a. 6 ad 2, a. 7 ad 2.

What order is to be observed as regards several equal cooperators? - If cooperators concur in the damage of another by the same species of cooperation, or by the same grade of cooperation, then each equally ought to restore in solidum, yet conditionally, without any determined order; for none of them, as more influencing the damage of another, took upon himself a greater burden of reparation. But it is said conditionally, namely if the other cooperators do not restore, or no one pays in solidum. But all are held absolutely to satisfy for a proportional part, since all equally concur in another's damage.

Resolutions: If one of the causes equally obliged has restored the whole debt, the others are held to pay back to him the part which he also gave for them, and each is held for his own part. For in regard to him the reason for restitution in solidum does not press; since each one is not the cause why he first restored the whole and the others do not restore. But if several from causes of this kind equally obliged were to restore, and one could not or would not restore his part, the others would have to divide it among themselves. If the creditor remits his debt to one of the debtors equally obliged, he is judged to remit to the others that one's part; for if he exacted the whole from the others, they would compel him to restitution, and so the remission would be frustrated. L. 581. But the others are still held to restoring their own part, unless the condonation was altogether full, or is deservedly presumed to be such. - From C. I. 1281.; C. G. 1285., remission made to one solidary co-debtor frees all the others entirely, unless the creditor expressly reserves to himself rights against them. Likewise from C. I. 1195, 1196.; C. G. 1210, 1211., a creditor who consents to the division of a debt for one of his debtors preserves against the others a solidary action, with that part of the debtor whom he freed from solidarity deducted, according to C. G.; and without it being deducted, according to C. I., since the matter was done among others. Moreover, a creditor who receives from one the portion offered by him without any protest tacitly remits to him the solidary obligation. And if for ten continuous years he receives this portion, he will no longer be able to act for the solidary obligation.

Whether the executor is held prior to one counseling for making restitution? - Resp. "If the counsel is useful to the one furnishing it, he himself is held first; otherwise, if it is useful to the executor alone. But if it is useful to each, each is held pro rata; and I think the same if no utility came to either from the damage inflicted. But in the defect of the other, that one is held in solidum." L. 560.

Yet it must be noted that although the unlearned are held in solidum, it is rarely expedient to oblige them to the whole, since they will with difficulty persuade themselves that they are held to restoring the part taken away by their associates. Indeed it can be sufficiently presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them, since otherwise there is great reason to fear that they would restore nothing if they were obliged to the whole." L. 579, 580.; Gousset 977.

What order is to be observed in restitution as regards creditors? - The order, as regards creditors, of restitution does not have place unless there are several creditors. In such a case, if the debtor can satisfy all, he can restore in whatever order, because the precedence of one inflicts no damage on another. But if the debtor cannot restore to all, the due order in restitution is to be observed, on account of the opposite reason, namely because the precedence of one inflicts damage on another. Moreover this order is determined by justice itself. For restitution is the reparation of an injured right. Therefore the preference of right determines the precedence of restitution. Now this injured right is the right of property. Therefore a more perfect right of property in creditors demands that they be preferred to others. L. 684.; C. L. 878. Wherefore, first, creditors who are still truly owners of the thing are to be preferred to all others, since they preserve in their own thing not only a right to the thing, but also a right in the thing, while the others have only a right to the thing. And so before all other debts stolen things, deposited things, leased or lent things are to be restored. Secondly, privileged creditors are to be preferred to the rest. For restitution is to be made by natural right, and on account of the private good of persons, which commutative justice directly regards. Therefore, if positive right is added to natural right, prescribing for the common good the preference of some creditors in particular, these indeed by reason of the privilege of the law are to be preferred to the rest, as privileged. And this law obliges in conscience according to the common opinion of theologians, since it is a legitimate law of a superior, passed for the common good. C. G. 2095.; C. I. 1945. Some privileged debts have a privilege over the generality of movables, others over determined movables, others over immovables. If there are several privileged creditors, their preference is determined by the law itself according to the quality of the privilege. And, if several enjoy the same privilege, they obtain payment of the credit pro rata. C. G. 2096, 2097.; C. I. 1953, 1954. Privileged debts over all movables, and subsidiarily over immovables, are in this order: expenses which are called those of justice, funeral expenses, expenses made for illness from the last six months, expenses for support from the last six months, wages of servants also from the last six months, and credits of the State for direct taxes.

C. I. 1956, 1959, 1963. Cf. C. G. 2101, 2105.; C. H. 1924.; C. L. 880 seqq. - C. I. 1952 seqq.; C. G. 2092 seqq.; L. 14 § 1, L. 45 de Relig. et sumpt. etc. Privileges over determined movables are: certain determined credits of the State; of the emphyteutic canon; of leases of urban and rustic estates; of expenses for cultivation of fields; of the pledge creditor; of expenses for the conservation of the movables themselves; of innkeepers; of transportation and taxes; of indemnity to be furnished by public officials; of sums to be paid by public administrators. C. I. 1958 seqq. Cf. C. G. 2102.; C. H. 1922.; C. L. 880 seqq. Privileges over immovables are: credits for expenses of expropriation of immovables; of the State for land taxes, for rights of registration, for any other indirect tax. C. I. 1961, 1962. Cf. C. G. 2103.; C. H. 1923, 1927.; C. L. 887. Privileges over immovables do not have effect unless they have been legitimately inscribed in the conservatory registers of mortgages. C. G. 2106. Cf. Tropolong in h. a. Thirdly, mortgage creditors are to be preferred to the rest, for these have bound to themselves not only the person, but also the very goods of the debtor. Where there are several mortgage creditors, they have the order constituted by the law itself, either from the day of inscription in the conservatory registers of mortgages, or from the very day of the constitution of the mortgage, according to Reg. 54 of Canon Law in the Sixth: He who is prior in time is stronger in right. L. 690.; Laymann de Restit. c. 11, n. 3 seqq.; C. I. 1964 seqq.; C. G. 2114 seqq.; C. H. 1928, 1929. Fourthly, finally, the remaining creditors, who are called common or chirographary, are to be made harmless. But whether among these some order is also to be established from circumstances of time, persons, contract, delict, and of the things themselves, is a question; and some generally deny it, because commutative justice regards only equality of thing to thing, which is altogether independent of conditions of times, persons, contracts, and the things themselves; others on the contrary generally affirm, because restitution is for repairing an injured right and for making good the damage inflicted; but from various circumstances of time, persons, contracts, things, the right is various, and the damage is less; therefore according to those circumstances an order is to be established in restitution even of common creditors. But chiefly those circumstances are the ones about which the following particular questions are raised. L. 689, 694, 695. From C. I. 1948-1950, 2092.; C. G. 2092-2094.; C. H. 1911., whoever has obligated himself personally is held to satisfy his obligation from all his goods, whether movable or immovable, present or future. Therefore the goods of the debtor are like a common pledge of his creditors, and they are equal in the right of exacting what is theirs, unless legitimate causes of preference exist among them. But the legitimate causes are privileges and mortgages. Wherefore all the others are esteemed equally, and all concur pro rata, if the debtor cannot satisfy all. - C. H. 1921 seqq.

Whether another's thing existing with the debtor must always be restored to its owner before all debts, however privileged? Resp. Affirmatively, if the thing is held by title of deposit, lease, etc. For that thing, existing in individual form, cries out for its owner. L. 684. If the thing is held by title of purchase, the price not having been paid, or at least not secured by pledge, surety, or given faith, it certainly must be restored to the seller according to Roman Law; for the seller still retains dominion of the thing. But when the seller has handed over the thing, and has received only credit concerning the price, it is controverted. "The first opinion says that then the seller is to be preferred....

The reason is both because natural equity demands this, and because the dominion of the thing, although in that case it has been transferred, nevertheless has been transferred under the condition of paying the price; hence such a thing remains mortgaged for the payment of the price. But the second and more probable opinion... holds that no preference is owed to the seller. The reason is that since dominion has already been transferred, there remains to the seller only a personal credit toward the buyer; and it is held by no right that the thing remains mortgaged to the seller until the price is paid to him."

L. 685. From C. I. 1512, 1513.; C. G. 2102, 2103., a thing sold, the price not having been paid, remains bound to the seller as regards the payment of the price against all other creditors, yet after the owner of the house or estate for the price of the lease, if the thing is movable. Indeed the seller can reclaim this, if no day for paying has been appointed, within 15 days from C. I., within 8 days from C. G., from the handing over of the thing; and from the same C. G. its price is always privileged, if the thing is movable. If the thing is held by theft and has been mixed with one's own things, satisfaction must be made to the owner of the thing before all other creditors, because the whole heap is specially bound to the owner of the thing taken away. L. 686. Cf. 907.

Whether debts whose creditors are known are to be restored before other debts to the poor or to pious causes, because their owners are unknown? - It is controverted. The first opinion, probable and common, affirms; because the owner is not judged reasonably unwilling, both by reason of the debtor, who would often have to be pursued by another creditor, and by reason of the other creditor, who is made harmless, since he himself cannot be. Moreover, because certainly from justice it is owed to the former, and probably from canon law to the latter. The second opinion, also probable, says that restitution can then be made pro rata to the poor. For the preference of a known owner is demonstrated neither by positive right nor by natural right. For by natural right the poor or pious causes succeed to the unknown owner, that what is his may profit him; namely, that what cannot be restored to him may profit his soul. But probably restitution must first be made to uncertain creditors rather than to unknown ones; because first those must be made harmless who probably have suffered damage, rather than those who certainly have suffered no damage. - L. 687.

Whether debts from delict are to be paid before debts from onerous contract? It is controverted. The first probable opinion affirms, because to retain a thing injuriously taken away is a graver injury than not to pay a thing owed from contract. The second, more common and more probable opinion denies it, but says they are to be paid pro rata; because from positive law no such preference is had; but from natural law the obligation which arises from commutative justice is the same in contract as in delict; and delict is blotted out by repentance, not by restitution. - L. 688.

Note: It is certain that debts from a gratuitous title, even pious ones, are to be paid in the last place, because these always include the tacit condition: unless something prevents. - L. 688, 689.

Whether common creditors, prior in time, are to be preferred to later ones? It is controverted. "The first opinion holds that satisfaction must be made to all these pro rata.... The reason is that not the goods of the debtor, but the person, is bound to these, and he is equally subject to all." But positive right establishes no preference among them. Indeed Roman Law establishes: "it is licit for someone, by adding a creditor to himself, to make the condition of his creditor worse." The second opinion "teaches that the earlier ones are to be preferred from Reg. 54 of Law in the Sixth: He who is prior in time is stronger in right. For although civil law speaks thus only of mortgage creditors, nevertheless canon law speaks of all, and is founded on natural right; for an earlier personal creditor, although he directly has the person of the debtor bound, nevertheless indirectly also has his goods bound, in which he ought not to be prejudiced by a supervening creditor. Each is probable, but the second more probable." L. 690.

Whether poor creditors ought to be preferred to the rich, or to those not in need? It is controverted. The first probable opinion denies it, because such preference is had neither by positive right nor by natural right; for commutative justice does not attend to persons. The second probable opinion affirms, "because the obligation of restitution is given for repairing the damage of neighbor; but a poor man suffers more damage if restitution is not made to him than one not in need." L. 691.

Whether it is licit to pay first the one first asking, even if he is later in time? Resp. Negatively, if the creditor prior in time is privileged or mortgage-holding; and therefore one acting otherwise is held for the damage. If the creditor prior in time is common, and he asks for payment in court, affirmatively. Thus commonly, "because the laws give preference also in conscience to the matter, to him who first obtained sentence, and after it also the debtor must pay him in conscience." L. 692.; C. I. 1970.; C. G. 2123. But if he asks outside court, it is controverted. The first opinion denies it, because prejudice is done to earlier creditors, to whom preference belongs. The second opinion more probably affirms, because a personal creditor has action against the debtor, and, by asking for the whole debt, pursues his right. L. 692.

Whether a debtor knowing his state to be tottering can satisfy integrally even one not asking? - Resp. Negatively. For since all are equal in right, and no one becomes stronger by diligence in asking, from natural equity restitution cannot be made to one with detriment to the others. Wherefore, speaking of itself, a debtor sins gravely against charity and justice by secretly admonishing one of the creditors about his tottering state, or in that case by offering integral payment to only one. Yet there are not lacking those who permit the debtor to admonish a creditor, because it is licit for him to advise what it is licit for the creditor to do. But it can be urged in reply that it is not licit for him to advise what he himself cannot do, and the adversaries themselves admit this. L. 692.; Lugo d. 20, n. 174.

Whether a creditor who, in this last case, accepted payment is held to restitution toward the other creditors? - It is controverted. The first probable opinion affirms; because he has no right that payment be made to himself integrally with detriment to the others. The second probable opinion denies it, because he received his own; and since he has the right of exacting even outside court, he violates the right of no one by accepting payment. Except, however, the cases in which such payment is declared invalid by law. L. 692, 693. From C. I. 1237.; C. G. 1235.; repetition of what has been paid is not admitted as regards natural obligations which someone has voluntarily satisfied. Yet from the same C. I. 1235.; C. G. 1167., creditors have the right of impugning all acts which the debtor performed in fraud of them. From C. H. 1291, 1292, 1297, 1298., payment of this kind, as also generally such debtor's contracts, whether gratuitous or onerous, are rescindible. One receiving anything in bad faith in fraud of creditors is held to restitution and to reparation of damages. - C. L. 1030-1045.

How is restitution to be made? For making restitution legitimately it is required and suffices that restitution be made in that mode by which violated justice is repaired to equality; and thus the injured owner is made harmless. This is clear from the very nature of commutative justice, from which restitution is owed. And so, speaking of itself, the very thing owed, not another although equivalent, or perhaps even greater, must be given. L. 676.; St. Thomas, 2. 2, q. 62, a. 1, 2.; C. H. 1166.

Resolutions: It is not necessary of itself that restitution be made openly, that it be made by the debtor himself, that it be made with the owner adverting. Hence the debtor can restore by increasing the weight in selling, or the owed work in laboring, by simulating a donation, etc. L. 676.

Whether, restitution having been made through a simulated donation, the debtor is held to restitution if the creditor, moved by gratitude, repays another gift to him? - It is controverted. The first probable opinion affirms; because the donation of the creditor is null, and therefore the gift must be restored; for it proceeds from a false motive cause, and consequently is not fully spontaneous. The second opinion denies it; yet it does not admit this mode of restoring unless restitution cannot be made otherwise than through a simulated donation, for instance because otherwise the debtor would suffer detriment to reputation; otherwise it will be illicit. The reason is that "since this redonation is from mere liberality, to which I neither induced nor obliged my friend, I am said to be only the indirect cause of it, or I am not absolutely its cause, but only the occasion; wherefore, since the danger to my reputation is a proportionate cause excusing me from cooperation in this new detriment which the friend suffers from the occasion of my fictitious gift, I will not sin, nor consequently will I be obliged to restitution." Tamb. Expl. dec. 1. 8, tr. 4, c. I, § 5, n. 2.

In what place, and at whose expense, is restitution to be made? If the thing is owed from contract, one must stand by the convention made concerning the mode and place of transfer. If no special convention has been made, one must stand by the special laws according to the diversity of contracts; for then they are judged to have contracted according to these.

Cf. Lugo d. 20, n. 196 seqq. From C. I. 1249, 1250, 1508.; C. G. 1247, 1248, 1651.; C. H. 1168, 1171, 1500.; C. L. 744., payment is to be made in the place designated by the contract; and if no place has been preestablished, and there is question of a certain and determined thing, payment must be made in the place where, at the time of the contract, the thing itself existed. Outside these two cases, payment is to be made in the domicile of the debtor, and expenses are to be borne by the same. But as regards purchase in particular, if nothing has been established in the contract as regards the day and place of payment, this must be made by the buyer in the place and time in which the handing over of the thing is to be made.

Cf. C. A. 905, 1420.; C. B. 269, 270. - If the thing which is owed has been accepted in good faith and is retained, "all agree in this, that it ought to be done in the place where the thing is, or if the thing is to be sent to another place, that this be done at the expense of the creditor: because since the debtor was obliged neither from any fault nor from contract to anything else, he only ought to permit the owner to take his own thing." Lugo l. c. n. 193. If the obligation of restitution arises from delict, the thing must be restored in that place in which the owner would have possessed it, if it had not been taken away; or the price of the thing must be transmitted there, if the owner would have sold it; and this at the expense of the debtor. The reason is that the owner must be preserved altogether harmless; for he is not held to suffer damage from another's delict. Lugo l. c. n. 180 seqq.; L. - 597, 677, 678.; St. Thomas, 2. 2, q. 62, a. 5 ad 3.; C. A. 1420.

Whether a debtor from delict must still pay expenses for sending the thing back to the owner, if the expenses exceed the value of the thing itself? Resp. Affirmatively, if the damage of the debtor is equal, or the excess is not notable. The reason is, "for it is more equitable that the delinquent suffer that loss and lose one hundred from his own goods, than that the innocent creditor be forced to sustain the same loss in his own goods: for the thief suffers that evil from his own delict, but the creditor would suffer it without any fault." Lugo d. 20, n. 186. Resp. Negatively, if the excess is exceedingly notable. The reason is, "certainly justice, since it is a virtue and commands prudently, cannot oblige to this: because no prudent man will say that the creditor is then reasonably unwilling unless the debt is restored to him with such great expenses." Lugo l. c. n. 185. - Resp. Affirmatively, if the excess is simply notable.

But in order that some moral rule may be established, it seems it must be said that when, all things considered, the excess will not be twice as great, it does not seem sufficient that the owner be deprived of his thing; but it seems sufficient if it exceeds this proportion. The reason of fittingness is, "because, with the delict of the debtor and the innocence of the creditor supposed, there seems to be a cause twice as great that the debtor suffer at least, rather than that the creditor suffer."

Lugo l. c. n. 190. - All things considered; for one must attend not only to the material quantity of the damage of the debtor and of the creditor, but also to the quantity of the damage respectively to such a person. For it can happen that a damage of 100 lire to a rich creditor, with respect to a poor debtor, is estimated as 200 lire and more. Lugo l. c. n. 188.; L. 598, 677, 702.

Note: A lesser damage of the debtor can suffice that he defer restitution; or restore in another species, e.g., when he can more easily transmit the price of the thing. Lugo l. c. n. 188, 191. But today there is a much greater facility for transmitting the thing or the price.

Whether the debtor must restore again, if he sent the debt through a faithful person, and it perished by chance or by the fault of a third party? - Resp. Negatively, if the possessor was in good faith. For the thing perishes to the owner. Resp.

Negatively, if he owes the thing from contract. For again the thing perishes to the owner; unless it was otherwise agreed. But affirmatively, if he owes not the thing, but the price, from contract, for the debtor preserves dominion in it until it has reached the creditor. And the same must be said if he owes not a certain and determined thing, but a thing in general, of which consequently he still preserves dominion. It is controverted if he owes the thing from delict. The first opinion, which St. Alphonsus calls common and to be held, affirms. The reason is, "because a debtor from delict is held to every damage, even fortuitous, as is certain among the doctors, which comes to the owner from his unjust taking away." L. 705.; C. A. 335.; C. I. 1148. Except, however, if this person was designated by the judge, or by the creditor himself, or at least he gave the debtor the faculty of choosing a prudent and faithful person: "for then by force of his mandate he would have as accepted the debt given to such a person by his mandate, and therefore he would have remitted the right which he had to damages following, so long as the thing did not reach him." Lugo d. 21, n. 60. The second opinion denies it. The reason is that, since the debtor cannot restore in another way without detriment to his reputation, the creditor cannot be reasonably unwilling if the debtor chooses this mode, and therefore by right is presumed to consent to it. Now this presumed consent of the owner extends even to the liberation of the restitution itself, if the thing is not restored by that person, e.g., by a confessor. For the owner of the thing, if he were questioned, would rather will that restitution be made by that means, although he would have to take upon himself the danger of such a means, than that restitution not be made at all; for since it could not be made otherwise because of the detriment to reputation which the debtor would suffer, he would be excused from it. Therefore. This opinion, to which St. Alphonsus once adhered and which he does not dare to reprove, several and grave theologians judge probable. Cf. C. A. 1425.; C. I. 1241.; C. G. 1239.

How is restitution to be made for damages inflicted on the Republic? Restitution is to be made through the means established by the Government itself, if means of this kind exist. Therefore attend to the various laws of places. But if such means have not been established, some say restitution must be made through those set over taxes; others hold that the obligation of justice is satisfied if restitution is made to the poor or to pious places, from the presumed will of the government; others, and better, to the damaged persons themselves. Restitution can always well be made, as it seems, directly also to the Republic itself, namely by restoring to the fiscal office, commonly ministero delle finanze. Or restitution can also be made equivalently by burning, e.g., bonds of the public debt of the nation itself; etc. Cf. 1420.; Carriere 1240.; Ithur. Cas. 1, n. 12.

When is restitution to be made? - As regards any debts whatever, generally restitution must be made as soon as it can be done without grave inconvenience. For natural right requires that you not retain another's thing, when the owner is reasonably unwilling, not even for a short time. St. Thomas, 2. 2, q. 62, a. 8. Hence 1. he who culpably and notably defers restitution remains in continuous sin, and cannot be absolved. Moreover, if damages come to the owner from delay of restitution, he is held to compensate them. 2. If someone, having the intention of restoring, defers for some short time without grave inconvenience of the owner, he is not easily to be condemned of mortal sin, indeed not even of venial sin, if there is some cause for deferring, e.g., hope of a more convenient occasion, etc. L. 678, 679.; H. A. 104, 105. 3. He who would wish to restore by parts, when he can easily restore the whole, would not be absolved, namely when the matter is grave; because the owner also in this is reasonably unwilling. The same must be said of him who, when he could restore during the course of life, nevertheless defers until death; or who, placed in danger of death, without sufficient reason would cast upon his heirs the obligation of restoring his goods; unless perhaps there is question of restitution of uncertain goods. L. 679, 681 seqq.; C. A. 1415.; C. I. 1246.; C. B. 266, 271.

Whether, as regards debts from injury, damages arising from delay of restitution are to be compensated? - As regards debts from injury, generally all damages which have followed from delay are to be compensated. For one contracting debt by injury takes upon himself the burden of compensating damages of this kind. - But whether extraordinary damages also must be compensated, or those which do not necessarily follow from delay of restitution, is controverted. It seems probably to be denied, because these damages could not have been foreseen even confusedly, and therefore cannot be imputed. Vogler 426.; C. B. 286, 287. Cf. here 1453.

What of time as regards debts from contract? As regards debts from contract, generally one must stand by the conditions placed on the contract concerning time, or concerning other circumstances, unless it is prudently presumed that the will of the other contracting party is different. L. 678. Hence 1. restitution, or rather payment, must be made at the time about which it was expressly or tacitly agreed. - 2. The debtor can anticipate, if the term assigned for payment is in his favor, as ordinarily is accustomed to happen; but otherwise if the same term tends to the utility of the creditor, as, e.g., in the furnishing of money with profit to be received. - 3. If the term has not been fixed, according to the opinion of many the debtor can without sin, at least grave sin, generally wait until he is admonished by the creditor, unless nevertheless the latter takes damage from this, or does not dare admonish out of fear, or omits admonition from forgetfulness or impotence. C. A. 1417, 1418.

Whether a debtor deferring restitution from a just cause is held to render to the creditor legal interest, ceasing profit, emerging damage? It is controverted. The first opinion denies it, if the debt is from contract; because then the debtor is not the unjust and culpable cause of that damage, for he is not in culpable delay; but it affirms if from delict, "because then the first unjust acceptance truly was the culpable cause of the damage." Yet this damage also ought to have been foreseen at least confusedly. The second opinion denies it even in this second case, because "the damage then does not come to the creditor from that first unjust acceptance, but from the later retention, which is done justly." L. 680, 704. But this retention is always culpable in the cause. C. A. 1333, 1334, 1336. Cf. C. G. 1151, 1153.; Gousset in h. a.; C. B. 284 seqq.

551. Once the obligation of reparation has been posited, it remains to inquire concerning the mode by which restitution ought to be made. We shall speak: 1. of the circumstances of restitution in general; 2. of restitution as regards certain goods, concerning which a special difficulty occurs.

552. General principle. Restitution is to be made to him whose rights have been injured, and, when he has died, to his heirs or those having his cause. - But, in order to elucidate the matter more, a threefold hypothesis can be imagined, according as the injured person is certainly known, - or uncertain, - or altogether unknown.

1. If the injured person is certainly known, restitution must be made to him who legitimately possessed the thing, as often as this can be done without great inconvenience; for the thing cries out to the owner, that is, not to him who has only naked ownership, but to the legitimate possessor. Thus if a thing was taken away from a depositary or lessee, it must be restored to him, and not to the naked proprietor, because the injury was done to him. - Yet, if a grave reason is present, restitution can be made to another; e.g., a thing stolen from a child of the family can be returned to his parents, if it is feared that it will be dissipated by him.

553. Corollaries. (a) If the injured person has died, restitution must be made to the heirs or to those having his cause.¹ - If the owner was compelled to make a cession of goods, restitution must be made not to him, but to the administrator of the goods, unless the owner is in grave necessity and has the right of retaining what is required for decent support, as will be said below where Contracts are treated.

¹ Hence restitution cannot be made to the poor when legitimate heirs are present; nor is it licit to spend money to be restored on Masses for the deceased, unless the will of the deceased or of the heirs can reasonably be presumed, as is clear from the decree of the Sacred Penitentiary, February 7, 1899, in Ami du Clerge, t. XXI, 1899, p. 415.

(b) If a community or society has been injured, restitution must be made to the administrators of this community. - Yet if the society of which there is question pursues an altogether wicked end, as a Masonic sect, restitution is not to be made to the society itself, but to its individual members, or, if this cannot be done, to the poor. But if the society is not essentially evil, although at times it expends money for evil uses, - as is a heretical sect, - restitution must be made to it; for it can possess legitimately, nor is it deprived of its right because of certain abuses in which it indulges.²

² Holy Office, September 21, 1842: "Whether a Christian faithful who knowingly and willingly destroyed and ruined the walls, doors, and furnishings of a temple, and on that account is seized by heathens, ought or can repair the damage, at least by another title? - Resp. He is held to restitution, by title of justice" (in Bucceroni, Enchiridion, n. 672).

(c) He who culpably burned an insured house must restore to the insurance company that which it paid to the owner, and to the owner the part of the damage which the company did not repair. - But if it becomes morally impossible to know which company suffered damage, on account of the pact which they call reinsurance (reassurance), restitution must be made to the poor or to pious causes.

554. 2. If it is doubted which person has been injured, first indeed inquiry must be made, and indeed with that diligence which is proportioned to the value of the thing; but, if the doubt remains, -

(A) If the doubt concerns few persons, - because, e.g., money found was lost by one of four or five persons, let the thing be divided among them in the better way in which this can be done.

(B) If it concerns many, let restitution be made to the injured persons, if this can morally be done, e.g., if merchants defrauded in the weight or quality of goods, let them increase the weight or furnish better quality when the injured buyers return; if this cannot be done, let restitution be made to the poor or to pious works, especially of that place where the injustice was committed; for in this case, the injured are judged to consent to this mode of restoring.

555. 3. When the injured person remains altogether unknown, after diligent inquiry has been carried out, a distinction must be made: (A) If the thing was acquired in good faith, it can be retained by the possessor by prescription as a lost thing (above, n. 229).

(B) But if in bad faith, it must be restored to the poor or to pious causes. All theologians admit this, although they dispute concerning the foundation of this obligation: some derive it from natural law, but others from ecclesiastical law.¹ We think that it flows from natural law, and was explicitly declared by ecclesiastical law. For natural law commands that, on account of the public good, no one become unjustly richer from another's thing; but if the possessor in bad faith retained the thing unjustly possessed, he would become richer from another's thing, and thus his injustice would patronize him; and therefore the public good would suffer, since from this evildoers would become bolder. - Moreover ecclesiastical law determined this as regards usuries and a simoniacal price; and theologians commonly extend it to all debts arising from delict.

¹ For Alexander III (Decretal. Gregor. XI, lib. V, tit. 19 de Usuris, c. 5, p. 812, ed. Friedberg) decrees that usurers are to be compelled to restore usuries "to those from whom they extorted them, or to their heirs, or, if these do not survive, to distribute them to the poor"; the same is elsewhere declared concerning simoniacs, and, by analogy, is extended to all who in bad faith detain another's thing.

556. Hence, in the restitution of uncertain debts, Pontiffs have sometimes granted condonation or reduction, from a grave cause, insofar as they are administrators of pious causes.

If the debtor himself is poor, he will be able to keep part of another's thing which is necessary for relieving his own poverty: for the one possessing is not excluded from the number of those to whom restitution can be made; nevertheless one must beware of illusions which easily occur when someone is judge in his own cause. If the unknown owner afterward appears, the possessor of another's thing has the rights and duties of a possessor in good faith, if he employed the required diligence for finding the owner; and therefore if he restored to the poor, he is bound to nothing further; - if he was not diligent, he is held as a possessor in bad faith, and must compensate the damage inflicted upon the owner.

The circumstances of restitution are indicated in the questions: Who must make restitution? To whom must it be made? How much? How? In what order? In what manner? At what time? Where? They are briefly contained in the memorial verses:

Quis? Quid restituet? Cui? Quantum? Quomodo?
Quando?
Ordine? Quove loco? Quae causa excuset iniquum? 1. Quis? Who must make restitution? Every one who possesses unjustly acquired property or who has intentionally inflicted injury upon another.

When it is a question of unjustly acquired property (res aliena), the first one who is bound to make restitution is the actual possessor, if the object still exists, or else he who has consumed or sold it. The actual possessor has the right of recourse on previous possessors.

Where damage has been unjustly inflicted (damnificatio), the real author of the damage is bound to make restitution. If two or more co-operate in causing the damage without a previous agreement or mutual understanding, each is responsible for the injury he himself inflicts; if there is an agreement or mutual understanding, the duty of restitution binds one and all in solidum,¹ in the following order:

¹ “Omnes et singuli in solidum tenentur.”—Cfr. J. P. Gury, Comp. Theol. Mor., Vol. I, n. 668–672.

If all the participants co-operated equally in causing the damage, all are equally bound to restitution; if the participation was unequal or subordinate, the duty of restitution binds unequally, in this order: first, the possessor in bad faith; secondly, the mandans and consentiens; third, the executor of the mandate, and, fourth, all who positively or negatively co-operated in the evil deed. If the possessor or the principal author of the damage has made full restitution, or if he has been released from the obligation of making restitution by the lawful owner, those who co-operated in the unjust deed are also released. If the former refuses or neglects to make restitution, the latter must do so, but has the right of recourse on the former. If one of the secondary participators in the injury is released from the duty of restitution, the others remain bound. “When it is uncertain which of several participators is the author of the damage done, all are responsible in solidum, because the party who has suffered the damage must not be robbed of his title to restitution on account of the existing uncertainty.”

As the duty of restitution to be made by several participators in solidum is not easily understood by uneducated persons, it is often necessary, even when the obligation is certain, to be satisfied with a partial restitution, because otherwise the injured party may receive nothing at all.²

² St. Alphonsus, Theol. Mor., l. III, n. 579: “It should be noted, however, that the uneducated, even though bound in solidum, should rarely be obliged to the whole, since with difficulty can they persuade themselves that they are bound to restore the part taken away by their companions; indeed, it may reasonably be presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them, since otherwise it is greatly to be feared that nothing will be restored if they are obliged to the whole.” Idem, Homo Apost., tr. X, n. 54; Idem, Praxis Confess., n. 44.

2. Quid et quantum? What is to be restored and how much? The answer to this question, broadly speaking, is: Everything a man unjustly possesses must be restored to the rightful owner, and all damage unjustly inflicted upon another must be repaired. If restitution cannot be made in full, it should be made as fully as possible, even if the person obliged to make it has to limit his expenses to the necessaries of life. He should further endeavor to advance the interests of his victim to the best of his ability, avert injury from his property and pray God to bless him.

In addition to material and temporary, spiritual damage must likewise be repaired. In cases where the positive law requires less than the law of conscience, he who is bound to make restitution should not be satisfied with complying with the demands of the law, and if the law imposes more onerous duties than conscience, he must comply with the former, at least after judgment has been rendered in court (post iudicis sententiam). Note, however, that when a judicial sentence imposes more than the moral law of nature requires, the party entitled to restitution should not insist on the plus, especially if the other party is poor.³

³ Noldin, II, pp. 520 sqq.; Tanquerey, III, pp. 234 sqq.; Slater, I, pp. 426 sqq.

3. Cui vel quibus? To whom should restitution be made?

a) Restitution should be made to the lawful owner of the stolen property, no matter whether he be an individual or a community, e. g., the State or a corporation. After the death of the person entitled to restitution his claim passes to his heirs or, if the stolen property has been left to some one as a legacy, to the legatee. Briefly, restitution must be made to him who is the certain and known owner of the property,⁴ and this holds even if the possessor has come into possession of the property at third or fourth hand. Thus if one has taken a stolen object from a thief, he must restore it, not to the thief, but to the legitimate owner. This duty binds even if the object is purchased and the purchaser runs the risk of losing the purchase price by giving the stolen article back to its owner. The reason is that the lawful owner retains the right in his property (“res clamat ad dominum”).

⁴ “Restituendum est domino certo et noto.” Cfr. Noldin, II, pp. 520 sqq.

b) If the owner is unknown (dominus incertus), careful inquiry (debita diligentia) must be made to find him. This inquiry must comply with the prescriptions of the positive law or else with custom. If the owner cannot be identified, the one who possesses the object in good faith may retain it, though under certain conditions it may be more advisable to give the property to the poor or to use it for charitable purposes.⁵

⁵ Numb. V, 7 sq.—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 5, ad 3.—Cfr. St. Alphonsus, Theologia Moralis, l. III, n. 580: “The question is asked: if the property, after due diligence has been employed to find the owner, has been handed over to the poor and afterwards the owner appears, whether it must be restored to him. . . . When, all the circumstances having been considered, it is no longer possible for the owner to be found, then the poor person acquires absolute ownership of the thing without any burden of restitution; but when, even after diligence, there still remains some hope of finding the owner of the thing, then the poor person does not acquire ownership of it and therefore ought to preserve it for the owner and restore it to him if he appears.” (Ed. Gaudé, II, 78).—Noldin, Summa Theol. Mor., Vol. II, pp. 522 sqq.

He who possesses a stolen object in bad faith, may not keep it, but should devote it to a pious cause or to the public welfare. If he is poor himself, he may keep a res incerta, which ought to be given to the poor, and thus release himself from the duty of restitution, even if this duty arose out of an unjust act. When doubt exists as to who is the rightful owner of a stolen object, this doubt may extend to a few (say, three or four) persons, or to many. In the former case the property must be restored pro rata to the presumptive owners, unless they agree to some other mode of restitution; in the latter case, e. g., where one has committed a number of petty thefts by using false weights or measures, restitution can be made to the poor or to some charitable institution, but not by temporarily giving better measure or by lowering the price of goods unless the patronage remains about the same, for in this supposition the injured parties could easily be remunerated by this simple device.

c) When restitution has to be made to fire insurance companies, the case is generally one of dominus incertus. Dr. Göpfert lays down the following rules for such cases:

If one has set fire to his own or somebody else’s property, he must make restitution of the insurance received, as follows: (1) If the money was received from a State insurance institution, supported from the public treasury, and the loss affects the whole community rather than the institution itself, restitution may be made to the poor or to some public institution; (2) if the money came from a private insurance company, restitution should be made to that company’s treasury. When it is certain, however, that the money will not go to the real owners (for instance, because it will be embezzled), it may be turned over to the poor or to some pious cause or charity unless the danger of embezzlement can be obviated by other means. As insurance companies often reinsure their risks, up to eighty or ninety per cent., with other companies, it may be uncertain who actually suffered the loss and to how much it amounts. Some hold that these companies really suffer no injury at all, since they fix their premiums according to all the risks incurred, including fraud as well as fire. Hence the real sufferers are the insured property-owners, but as these, on account of their large number, would receive only a very small sum each if restitution were made to them, a charitable cause may be substituted.⁶

⁶ Göpfert, Moraltheol., Vol. II, pp. 209 sq.; cfr. Noldin, II, pp. 530 sq.

d) In regard to debts arising from a written or an oral contract, e. g., deposits or loans, if the creditor and his heirs cannot be ascertained, there is no obligation to donate the money to the poor or ad pias causas, since it is justly regarded as ownerless property under the natural law.

If one is bound to make restitution to two or more persons, but cannot pay them all, he must satisfy their claims in the order of their importance. Hence compensation must first be made to those who have a ius reale, i. e., a right to the property in question, even if the others get nothing. Second in line are those to whom the debtor owes something ex titulo oneroso or ex delicto, e. g., by contract or in consequence of fraud or usury. Among the debts ex titulo oneroso the first to be paid are the debita privilegiata, i. e., court fees, expenses incurred for food and lodging, the wages of servants and working-men, etc. They take precedence even over the debita ex delicto. Finally, certain debts (debita certa) take precedence of uncertain debts (incerta). Uncertain debts are those payable to persons whose identity is not fully established. Debts secured by pawns or mortgages precede those not so secured.⁷

⁷ Reg. Iur. in VI° Decr. Bonif. VIII, n. 54: “Qui prior est tempore, potior est iure.”—Cfr. H. Busembaum, Medulla Theol. Mor., l. III, tr. 5, c. 2, dub. 7, a. 2, n. 2: “If restitution is to be made by reason of an unjust action, certain debts—that is, those whose owners are known—must be restored before uncertain ones, because the former are owed to their owners by natural law, whereas the latter are owed to the poor by positive law alone.” Cfr. Noldin, II, pp. 524 sqq.

If several creditors have equal claims, they must be satisfied equally. If the property has passed into the hands of a receiver, those obliged to make restitution should pay, not the receiver, but the creditors, unless the civil law provides otherwise.

4. Quando? When must restitution be made? This question is solved by St. Thomas as follows: “As it is a sin against justice to take another’s property, so also it is to withhold it, since to withhold the property of another against the owner’s will is to deprive him of the use of what belongs to him, and to do him an injury. Now it is clearly wrong to remain in sin even for a short time, and one is bound to renounce one’s sin at once, according to Ecclus. XXI, 2: ‘Flee from sin as from the face of a serpent.’ Consequently one is bound to immediate restitution, if possible, or to ask for a respite from the person who is empowered to grant the use of the thing.”⁸ And again: “Although the precept which enjoins the making of restitution is affirmative in form, it implies a negative precept, forbidding us to withhold another’s property.”⁹

⁸ Summa Theol., 2a 2ae, qu. 62, art. 8: “As it is a sin against justice to take another’s property, so also it is to withhold it, because by the fact that one withholds another’s property against the owner’s will, one prevents him from the use of his own property and thus does him an injury. But it is clear that it is not lawful to remain in sin even for a short time, but every one is bound to abandon sin at once according to the saying: Flee from sin as from the face of a serpent (Eccli. xxi, 2). And therefore every one is bound to restore at once, if he can, or to seek a delay from him who can grant the use of the thing.”

⁹ Ibid., ad 1: “The precept of making restitution, although affirmative according to its form, nevertheless implies in itself a negative precept, by which we are forbidden to withhold another’s property.”—Noldin, II, pp. 531.

Restitution, therefore, must be made at the first opportunity that presents itself, if it can be done without serious inconvenience (sine gravi incommodo); at least one must be sincerely resolved to make restitution as soon as possible (quamprimum.) This duty not only binds the possessor in bad faith, but he who is in good faith must likewise make restitution to the lawful owner as soon as he perceives that property which he has in his possession belongs to another.

To resolve not to make restitution, or willfully to postpone it, is a new sin, and any additional damage or loss that results to the owner from such postponement, if intended or foreseen, involves a further duty of restitution. If the postponement is caused by real want, fear of scandal or infamy, or dread of losing one’s financial status under the law, it is excusable, provided the creditor is not in dire need. In every case the debtor must be ready to reduce his living expenses as much as possible in order to be enabled to make restitution.

If restitution has to be made in consequence of a formal act of injustice, but is postponed for sufficient reasons, any loss or damage resulting from the delay must also be made good, unless the creditor himself might easily have prevented it, but knowingly and willingly omitted to take the proper precautions.

In the case of contractual debts the debtor is not liable for damage that arises to the creditor if the payment of the debt is delayed without any fault of his.

5. Ubi? In determining the place where restitution should be made, it is necessary to distinguish between him who possesses the property of another in good faith and him who possesses it in bad faith.

a) The possessor in good faith must make restitution “ibi, ubi est res,” that is, he is bound to notify the owner that the property is in his possession and will be surrendered to him at his own cost or risk. The cost and risk of transfer, therefore, fall upon the owner, for, “Casum sentit dominus,” or “Quod casu perit, domino perit.” The possessor who is in good faith satisfies his obligation if he hands the property over to a reliable agent for delivery to the lawful owner.

b) He who in bad faith possesses property belonging to another as well as he who has injured another unjustly, must make restitution “ibi, ubi est dominus,” that is to say, he must return the property to the place where it would be if he had not taken, damaged, or unjustly retained it. This duty binds until the property has been restored to its rightful owner. The possessor malae fidei has, moreover, to bear the cost of transportation, unless the owner himself has designated the manner of its return, or expressly left it to the choice of the debtor, and the latter chose a common and safe carrier, or the matter has been attended to by a court of justice.

The question whether the possessor malae fidei would be responsible for the cost of transportation in case it exceeded the value of the property itself, has become futile under modern conditions, where transportation is both cheap and safe.¹⁰

¹⁰ Cfr. St. Alphonsus, Theol. Mor., l. III, n. 597 sq. (ed. Gaudé, II, 82 sqq.); Idem, Homo Apostolicus n. 65.

6. Quomodo? In what manner should restitution be made? He who cannot restore the whole of what he owes to another, must restore as much of it as he is able. Restitution need not per se be public, for the restituens may and must protect his good name or reputation. Only if the injury inflicted was notorious and resulted in public scandal, must restitution be made publicly, in order that not only the damage, but also the scandal, may be repaired.

a) Restitution need not be made in person, but through any reliable agent, e. g., the confessor, who in such cases must take due precautions that the seal of the confessional is not endangered. If the confessor feels that he would draw suspicion on himself by serving as agent, he need not assume the task.

If the unjust possessor cannot restore the stolen object in kind without danger to his good name, he may return an equivalent, but is bound to make compensation for any loss that may result to the owner from the fact that he does not receive back the stolen property in individuo.

If the stolen property cannot be restored to the owner sub titulo restitutionis and without disclosing the identity of the thief, the form of a gift or present may be chosen. In that case, if the donee makes a present in return, this may not be accepted if the principal motive for making it was to make a return for the present received, but it may be retained if the receiving of the present was the occasion rather than the cause of the return being made.¹¹

¹¹ Slater, A Manual of Moral Theology, Vol. I, p. 435.

Restitution may, finally, be made creditori creditoris, that is to say, by paying a debt owed to a third party by the creditor, provided it is of equal amount, and the creditor is reliably informed of the payment made.

A declaration of bankruptcy does not excuse the debtor from paying his creditors, if he becomes able to do so later, for the assignment of his property for the benefit of his creditors (cessio bonorum) merely assures him the protection of the law and a temporary respite.

In making restitution care should always be taken that it is not done in such a way as to bring suspicion upon an innocent third party.

b) If the confessor undertakes the task of making restitution for a penitent, he should see to it:

α) That the seal of confession is kept inviolate. The theory that a penitent, in commissioning the confessor to make restitution in his name, thereby relinquishes his right to have the matter kept secret, is untenable. Hence the confessor must appoint another to make the restitution or divide the sum to be repaid into installments if he has reason to fear that the real author may otherwise be discovered.

β) That the party to whom restitution is made gives a receipt for the article or sum of money restored, and that this receipt is handed to the person making the restitution.

γ) That, if the person to whom restitution is due, cannot be found, the sum involved be given to the poor.

If the rightful owner refuses to accept the restitution offered, the money reverts to the penitent. If the latter cannot be found, the confessor may keep the money,¹² but is advised to donate it to some charitable cause.

¹² Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 177 sqq.; St. Alphonsus, Theol. Mor., l. III, n. 696 sqq. (ed. Gaudé, II, 161 sqq.); Lehmkuhl, Theol. Mor., Vol. I, 11th ed., n. 1228–1238.

Readings.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., n. 129 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 579 sqq., 676 sqq. (ed. Gaudé, II, 71 sqq., 151 sqq.).—J. E. Pruner, Lehre vom Recht, Vol. II, pp. 50 sqq.—F. Lorinser, Die Lehre von der Verwaltung des hl. Buszsakramentes, 2nd ed., pp. 271 sqq.—F. A. Göpfert, Moraltheologie, Vol. II, 6th ed., pp. 289 sqq.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 234 sqq.—T. Slater, S.J., A Manual of Mor. Theol., Vol. I, pp. 424 sqq.

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.

We shall examine: 1. to whom; 2. at what time; 3. in what place; 4. in what manner restitution is to be made.

St. Alphonsus, III, 676; ed. G., II, p. 151; H. Ap., X, 104; Lugo, disp. 20; Billuart, Diss. VIII, art. 14-19; Laymann, l. 3, s. 5, tr. 2, c. 10; Salmanticenses, tr. 13, c. 1, where at length; Lehmkuhl, I, n. 1222.

1007. The things to be treated here are set forth in the following general principle:

Restitution must be made at the time, place, and mode in which the right and utility of the damaged person require it, and in which it can morally be done by the debtor, that is, without grave inconvenience which he would suffer in his own thing beyond the debt (III, 676). - This principle indeed contains all things, but for greater understanding of the matter it must be explained a little more broadly.

1008. PRINCIPLES. I. Restitution which obliges from delict or from possession of another's thing must be made as soon as it can be made. For natural right requires that another's thing not be retained when the owner is reasonably unwilling. Recall the things said in n. 926.

Hence: 1. He who adverts to the obligation of restitution and without just cause defers restitution for a notable time sins gravely, if thence the owner suffers grave damage, or restitution becomes impossible. - Otherwise, if the delay were moderate, for example of 20 days, and the creditor neither suffered grave damage nor was judged gravely unwilling (III, 679).

2. He who defers from a just cause, for example to avoid scandal, infamy, etc., does not sin. But in truth, if the debt is from delict, a thief, although he justly defers, is held to make good the whole damage which the creditor thence suffers, because through the theft previously perpetrated he exists as the cause of the damage. Thus from the common and more probable opinion. Otherwise if the debt is from another title, for example from contract, or from possession of good faith. - Otherwise also if the owner deservedly is judged not to exact this; or if the damage was in no way foreseen (III, 680).

Note. Another opinion, not improbable, says that a thief, if he justly defers, cannot be obligated to compensate damage coming upon the owner from the delay. The reason is that the thief, who is supposed to wish to restore, ceases to be an unjust damager as regards new damages. Besides, the owner is judged to consent to the delay, if the cause of deferring is just.

1009. II. Restitution from contract, or rather payment, must be made at the time concerning which agreement was made. Where the time was not determined, the debtor does not sin gravely if he does not restore until he is admonished by the creditor. The reason is that the presumed will of the creditor so bears.

Except, unless the creditor omits to warn because of fear, forgetfulness, or inability; or unless the debtor obligated himself with an oath, because an oath of itself obliges as soon as possible. Indeed, although the creditor seeks payment, he is not to be condemned of grave fault who defers to pay a debt from contract without grave damage of the creditor; because such delay does not seem gravely injurious, nor therefore is the creditor judged gravely unwilling (III, 678, 680).

Note. A creditor, unless he is driven to this by pact or sentence of a judge, is not held to accept the debt in parts. Thus from civil and natural Law.⁰¹

1010. PRINCIPLES. I. A possessor of good faith satisfies if he restores the thing in the place where he possesses it. Hence, he is not held from justice to transmit the thing to the owner if perhaps the owner dwells in another place. The reason is that he is not held to restore to the previous state him whom he did not cast down from it through formal injury (cf. n. 935). Otherwise nevertheless from charity, short of grave inconvenience.

1011. II. A possessor of bad faith and an unjust damager must restore the thing in the place where the owner would have had it if it had not been taken away, and this at their own expense. The reason is that the owner unjustly damaged must be preserved unharmed (cf. n. 941).

As regards expenses to which the thief is held in order to restore the thing to the owner, some oblige him to any at all; others only to those which are equivalent to the value of the theft. - But the more probable opinion with Lugo (disp. 20, n. 190) says that a thief generally is held to transmit to the owner the thing, or the value of the thing if the thing itself cannot be sent, although the expenses of transmission would be twice greater than the debt. But if the expenses surpass this proportion, restitution can either be deferred, if namely there is hope of later preserving the owner unharmed, or, if such hope is lacking, must be made to the poor, from the presumed will of the owner. It is also probable that a thief can defer restitution which would have to be made with grave damage to himself, provided the owner does not suffer similar detriment from the delay of restitution (III, 598, 697, 702). - Besides, as Aertnys notes (l. III, 353), this question today is superfluous in many cases, since the value of the thing can easily be sent almost everywhere among nations.

Note. Those expenses which the owner would have had to make for preserving or carrying the thing can always be deducted by a possessor of bad faith (III, 677).

1012. III. A debtor from contract must pay in that place concerning which there was agreement between the parties expressly or tacitly. Tacitly, that is, according to the laws which have force for various contracts. Regularly, pacts set aside, payment must be made in the place where the contract was entered upon, and at the expense of him in whose favor the contract was made (III, 678; cf. German Code, 269, 270).

1013. It is asked. Whether a debtor is freed if the debt transmitted through a messenger has perished fortuitously or by fault of the messenger?

Resp. Dist. 1. If he was a possessor of good faith and sent the thing through a faithful messenger, so much the more through a confessor, he is freed from the obligation of restitution. The reason is that, fault, delay, and pact being excluded, the thing perishes for the owner or creditor. Yet he would be held after the sentence of a judge if juridic fault had intervened.

2. If he was a possessor from delict, he is not freed. The reason is that a debtor of this sort is held absolutely to render the creditor unharmed, and therefore to undergo every danger, even fortuitous. And although the creditor is presumed to consent to restitution through another, lest the thief betray himself, nevertheless he is not judged and is not held to remit his right as long as he has not been made unharmed (cf. Ami du Cl., 1910, p. 746).

See nevertheless how St. Alphonsus tempers his opinion (III, 704; ed. G., II, p. 172). For he adds: "Because Lessius and Sporer do not dare to condemn the contrary opinion, which frees the thief from obligation, neither do I dare."

3. If he was a debtor from contract, he is freed in the case in which the creditor has ownership of the thing, as in deposit and commodatum. Otherwise, if ownership of the thing is with the debtor, for example if it is a question of paying the price of a thing bought (III, 704; cf. Gury, I, 711).

Even in this case, there are not lacking those who affirm that the debtor is freed if he transmitted the debt through a confessor. See St. Alphonsus (l. c. at the end). Cf. Lehmkuhl, I, n. 1224.

Note. The debtor, whoever he may be, is exempt from every burden: 1. If the creditor, likewise if the law or judge, has designated the person through whom, or the mode in which, he wishes the thing owed to be sent to him. 2. If he left the liberty of choosing the person whom he wished, provided a prudent and faithful person is chosen. - Therefore a confessor, says Konings n. 794, who has assumed upon himself the burden of restoring for a penitent, will prudently ask the creditor by what reason he wishes the thing to be sent to him (cf. n. 1014, 1). Cf. also the things which Aertnys wisely notes, III, n. 357.

1014. PRINCIPLE. Generally it is required and it suffices that restitution be made in that mode by which violated justice is fully repaired, or repaired according to equality. This is established from the notion of restitution (n. 924).

Hence: 1. It is not necessary that restitution be made through the debtor himself; but it can be made through any other, provided the thing is returned to its owner. It can be made, for example, through a confessor, if necessary; but then great caution is needed, both that the seal of confession remain uninjured and that the penitent know that the creditor truly has received the debt, lest any suspicion ever be able to arise against the probity of the confessor.

2. It is not necessary that restitution be made with the owner adverting; because this is not required so that he be unharmed. Thus, for example, a debtor can restore by increasing weight or measure in selling, or the owed work in laboring (cf. 998, 3).

3. Restitution made through a simulated donation is valid, more probably, as is commonly taught. Yet if the creditor, moved by gratitude, should repay another gift, this would have to be restored again to him, because an antidoral donation, in this case, would rest upon a false foundation, and therefore would not be valid (Ami du Cl., 1906, p. 249).

4. In place of restitution, a gratuitous donation made to the creditor by the debtor is also valid, although the latter is unmindful of the debt and does not attend to restitution (III, 700, 2). Say the same of alms, if namely someone ought to restore to the poor.

Let it be noted: a) If the creditor is conscious of the injury done to himself, but ignorant of the author, the restitution is prudently to be manifested to him, so that he cease from every inquiry. A fortiori it must be manifested to one knowing the author of the injury, so that he abstain from enmity, from repetition, from occult compensation. b) If someone has publicly offended against justice, he is also held, at least from charity, to repair scandal (cf. n. 514).

1015. Questions. QUAER. 1. How must restitution be made by domestics?

Resp. 1. A wife and children are held to restore from their own goods. But if they do not have goods of their own: the wife is held by thrift and work to repair the damage, or at least after the death of the husband, in the division of common goods, to compute the debt into her own part; likewise the son is held to bring thefts into the division of the inheritance, if the quantity of the thing taken away is very great, and the father has not remitted restitution tacitly or expressly (III, 542, 546). - 2. Servants, if they are unable to restore without great difficulty, are to be ordered to compensate by extraordinary offices and services as much as they can (cf. n. 907).

QUAER. 2. How must restitution be made for damages inflicted on some private society, for example an insurance society against fires, etc.?

It must be noted that here it is not a question of a public insurance society which belongs to the treasury; in the following question there will be speech concerning this.

Resp. Some opine that it is impossible for restitution to arrive certainly to the true owners, and to each one of these for the part due to him, if it must be made to so-called mutual insurance societies, or at least to those of which there are many members, for example for railways; because after damage has been inflicted on the society and before restitution, perhaps very many members have left it, and it is unknown who they are and in what portion they were members. This seems to us to have force only for the case of the dissolution of the society; for to members who leave the society, others succeed with right to the credits and obligation to the debts of the society. Hence of itself restitution must be made to the administrators of the society.

But in the case in which it were established, for example because of the unfaithfulness of officials, that restitution will not be transmitted to the treasury of the society and distributed to individual members according to their own pro rata part, restitution would have to be made to pious causes (Aertnys, l. III, n. 358; Konings, n. 1040).

The same must be said if it is established that the societies are reinsured; for then, if damage comes upon them, it will certainly be compensated for the greater part. But those whom the damager ought to make unharmed remain unknown in very many cases (cf. Gopfert, II, n. 126).

QUAER. 3. How must restitution be made for damages inflicted on the republic?

Resp. 1. Besides the means perhaps assigned by law, a law of this kind exists in Austria; for Belgium, cf. Haine, II, q. 170, an easy and efficacious mode is given, consisting in this, that the one liable to restitution buy and burn obligations of the public treasury, or public seals for freeing letters from tax (timbres-poste, francobolli), or something else of the same kind. 2. If no apt means is at hand, restitution must be made for pious uses. For such restitution certainly profits the republic, because it will have to spend less on the poor; and besides, in many places, it can be considered as compensation for injuries inflicted on the Church (Konings, 795).

The chief circumstances of restitution are contained in this verse:

How much will you restore? to whom? in what order? in what way? when?

777. • The quantity of restitution must be measured from the quantity of the thing accepted, or from the quantity of the damage inflicted, or from the influence upon the injury of the neighbor.

Since special difficulties occur concerning solidarity alone, we shall treat specially of it alone.

Definition. - Solidarity, or the obligation of restoring in solidum, is the burden incumbent upon the individual cooperators of repairing the whole damage inflicted.

Division. - A twofold solidarity is distinguished, namely 1° absolute, which has place when someone is bound to repair the whole damage; 2° conditioned, when individual cooperators are bound to restore for other failing cooperators.

778. Principles. - I. Any one of the cooperators concurring efficaciously toward damage, so that this whole can morally be ascribed to him, is bound to restitution in solidum, that is, integrally, whether absolutely or at least conditionally. The reason is that each one is the efficacious and unjust cause of the whole damage, and therefore must repair the whole. - Vogler² and others commonly.

II. But the whole damage can certainly be ascribed to some cooperator in a twofold case, namely 1° as often as his cooperation is necessary, although not sufficient, for inflicting the whole damage; for example, if you furnish a vote necessary for an unjust sentence; 2° as often as cooperation is done from an efficacious conspiracy by which the damagers so efficaciously excite themselves to the damage that, if individuals did not concur, the damage would not happen.¹

III. Whoever is the principal cause of damage is bound to restore in solidum absolutely; but the other equal cooperators, or secondary causes, are bound only conditionally. The reason is that the principal agent, such as one mandating, a leader, etc., by the fact itself takes upon himself absolutely the whole burden of repairing the damage, since he himself inflicts it primarily, and does not use others except as instruments for damaging the neighbor. But who must be called the principal cause will be said below.

But as to secondary causes, S. Alph.² rightly warns that in practice it is rarely expedient to warn the uneducated or oblige them to repair the whole damage, although they are certainly bound in solidum; because, he says, "with difficulty do these persuade themselves that they are bound to restore the part taken by their companions. Indeed, it can be sufficiently presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken by them, since otherwise it is greatly to be feared that they restore nothing if they are obligated to the whole."

"Hence it is," the Holy Doctor continues,³ "that the confessor should exhort any one of those men (especially if he is of a conscience little meticulous) that he restore what he owes, without explaining the quantity, but remitting it to the dictate of his conscience."

779. Questions. - Query 1° Are you bound IN SOLIDUM in doubt whether you influenced the whole damage?

Resp. More probably negatively with the common opinion, because a certain burden cannot be imposed for an uncertain obligation.⁴

Query 2° Are you bound IN SOLIDUM in doubt whether the others restored their part according to proportion?

Resp. The opinion denying this is by no means approved by S. Alph.⁵ In negative doubt I think that others must be presumed to have satisfied their debt.

Query 3° Is there given an obligation of restoring IN SOLIDUM where cooperation indeed influences the whole damage of an indivisible thing, but is not of itself sufficient, nor necessary, nor proceeds from strict conspiracy; for example if four carry away a beam which even three would have carried away?

Resp. Probably negatively, because, since the whole reason of obligation is influence upon the damage, that ought not to be greater than the influence itself. From elsewhere, if someone by his work concurs only to part of the damage, for example of the devastation of a garden, but concurs with others to the whole damage so far as the remaining part of the garden had already been devastated by others, and he destroys what he found left whole by them, this man certainly is not bound to repair except the part of the damage of which he was the author. Therefore, by parity, one who concurs partially toward indivisible damage is bound only partially to the reparation of the damage, because he placed a partial cause.¹ - Lugo.²

780. • Query 4° Are you bound IN SOLIDUM if your action was indeed sufficient for inflicting the whole damage, but in no way necessary, nor proceeded from conspiracy; for example if you set fire to another's house at the same time with several others?

Resp. It is controverted. Not a few affirm probably, indeed also more probably, because where your action was sufficient for the damaging effect, in reality the whole damage must be ascribed morally to you and to the individual others. Roncaglia, Sanchez, Salmant., etc. - But others deny probably, because, although the damaging action was sufficient for the whole damage, nevertheless it did not have anything but a partial influence upon it, since it was neither necessary nor common with others from conspiracy. Therefore it is not the moral cause of the whole damage. Nor does it matter that it is a question of an indivisible thing, because the cooperation is not extended to the whole damage. Yet understand this whenever without your concurrence the damage would nevertheless have happened; otherwise even your action would have to be called necessary for it. - Sporer, Navar., etc. - S. Alph.³ has each opinion as probable.

781. Resolutions. - 1° If one of the cooperators has repaired the whole damage, the others are freed from every debt toward the creditor; but he who restored the whole has recourse against the other damagers equally obligated, or such that each is bound according to his proportion, as reason plainly demonstrates.

2° If to a thief who, on account of efficacious motives, is already altogether determined to steal, you suggest a new motive which adds stimulus to him, you are not bound, when the other cooperators fail, to repair the whole damage, because your motive did not influence the substance of the damage.

3° Indeed probably, on account of the same reason, you ought to repay nothing from justice, if you only induce another to inflict damage somewhat more quickly or more readily.

782. • Restitution must be made to him whose right has been injured. Wherefore:

1° To the one suffering damage (who is also called the creditor), if it is owed on account of damage given.

2° If it is owed on account of unjust detention of another's thing: a. To the owner himself, if the thing was taken from the owner. b. Not to the owner, but to the just possessor (for example the borrower for use), if the thing was stolen from him; for this man's right of possession was injured. Resolve the same if there is doubt whether he possesses justly, because in doubt presumption favors the possessor. But to the owner, not to the possessor, if the latter is probably going to abuse the thing with injury to the owner.¹

3° When the owner, or, as above, the possessor, is dead, the thing must be restored to the heirs, who either ab intestato or by testament have succeeded into the rights of the deceased; nor can it be expended for the repose of the soul of the deceased, unless from the express or at least presumed will of the heirs, not however of the deceased, since now they, not he, have dominion or possession of the thing.²

4° If after diligent inquiry the owner is doubtful, either the doubt turns among a few, or among many. If the former, restitution must be made to them according to proportion, or the presumed owners must be induced to a composition. If the latter, for example because someone selling in some city defrauded many in weight or price, restitution must be made, and indeed under grave sin, either to those defrauded or to the poor of that place, or for pious causes useful to that same place; but under light sin only to those defrauded (and to these not even under light sin, if a reasonable cause is present), suppose by increasing in the same way the weight or measure, or by diminishing the price toward ordinary buyers, who are presumed to have been damaged, if it can easily be done.

5° If the owner is plainly unknown, or if, although known, he nevertheless can be approached neither immediately nor mediately in a moral manner, a distinction must be made: for either another's thing, acquired in good faith, is possessed, or in bad or doubtful faith. If in good faith, then one must act as in things recently lost, whose owner cannot be found (see above n. 656). But if in bad faith, the possessor must wholly despoil himself of such a thing and spend it for a pious work or the utility of the poor. For it is unlawful that malice profit a thief or a possessor of bad faith.¹ If finally in doubtful faith, the doubt persevering after due inquiry, the thing must be spent partly for the poor or pious causes, and partly can be retained. Cf. n. 739.

6° If no one of the owners has been gravely injured and they are known, restitution must be made under grave sin to the poor or to pious causes; under light sin to the owners, and not even to these under light sin if a reasonable cause excuses. I said: 1° under grave sin to the poor or to pious causes. The reason is that by becoming notably rich from another's thing, he has inflicted grave damage upon the republic. I said: 2° under light sin to the owners; for to each of those he has inflicted only light damage.²

Note for practice. - To those obligated to restitutions to the poor or to pious causes, it is prudently declared that they satisfy if they give those things which they are accustomed to contribute toward the support of the poor, churches, etc., which is not owed, with that intention that they satisfy the obligation of restoring. Except if the sum to be restored is so great that usual contributions of this kind do not equal it.

783. Questions. - Query 1° When your creditor has been compelled to make a cession of goods, must you restore to him or to his creditors?

Resp. Generally speaking, to him in whose hands, after the cession of goods has been made, the administration and custody of those goods remains. For to this one alone restitution or payment of debts can and ought to be made, so that, if it is made to another, it is not valid and perishes for the one paying, if perhaps the thing handed over does not come into the hands of the administrator. Wherefore if it were a question of debts which are kept hidden by him who cedes his goods, the debtors of that man would cooperate in his fraud if, the cession of goods being known, they paid the debt to him; for which reason they would not be safe even in the forum of conscience, and could be sued in the external forum to pay again. Yet sometimes you could restore to your creditor, for example if the debt is small, if he is upright, and you believe that he is going to restore it to the creditors; likewise if he is situated in grave necessity and greatly needs that debt to live, because, as theologians commonly teach, one ceding goods can subtract those things which are altogether necessary for living. - S. Alph.,³ Gousset.²

784. • Query 2° To whom ought a debtor FROM DELICT restore if the injured owner cannot be found?

Resp. According to the common opinion, he must restore to the poor or to pious causes. The reason is that by common sense the unknown owner is judged to be represented by the poor or by pious causes; for such is presumed to be his will whenever he cannot recover his thing unjustly taken away or damaged. - Thus S. Thom.³ Concerning this there is certainty from Canon Law as to usurious and simoniacal profit. The canon law seems also to be extended by custom to the other cases: but custom is the best interpreter of laws. Therefore it appears that some law of nations has been introduced concerning this.

Some say that the debtor can spend these things for any public utility, even profane. But in practice one must stand by the general custom. But never can the possessor of bad faith, nor the unjust damager, retain the debt (unless, as is clear from S. Alph.⁴, he himself is truly poor), because from right, whether natural or positive, at least customary, restitution must be made to pious causes. L. V. 71. H. A. Tr. X. 17.

The order of restitution can be looked at both on the part of those who ought to restore, when many have cooperated in the same damage, and on the part of those to whom restitution must be made.

785. • To assign the order of restitution in solidum among cooperators in the damage of another, it must be inspected whether the cause of the damage is principal, or primary; whether secondary, or subordinated; or finally collateral, or equal. For cooperators can concur in damage either in the same mode or degree, or in a diverse mode.

Principles. - I. If all concurred in the same mode, individuals ought equally to restore in solidum conditionally. Three by common and efficacious conspiracy burn buildings of the price of 3000. Individuals owe 1000; if two cannot or will not pay 1000, the third will owe 3000.

II. If they concur in a diverse mode, 1 the holder is bound, under whom are also the receiver of the prey and the participant; 2 the one mandating; 3 the executor, under whom also is the participant in the damaging action; 4 the other positive causes; 5 the negative. A master commands a servant to steal or inflict damage; this man, doubting whether he should obey, is moved by the counsel of a friend to obey; and, while the guard of the house does not impede, he takes the thing away and hands it to another to be guarded lest it be detected. First the holder must restore; when he restores, the rest are freed from every obligation. But if he does not wish to or cannot, the master is bound; in his default the servant; when both fail, the friend; when the rest are neglectful, the guard.¹

786. Resolutions. - 1° Secondary causes are bound to nothing if the principal cause restored or obtained remission of the debt; for secondary causes are bound only in default of the principal cause, whose obligation has ceased.²

2° If one of the less principal causes restores, the principal cause is bound to make it harmless, because the less principal acquires the creditor's right against the principal.

3° If the creditor releases the secondary cause from obligation, the principal cause is not for that reason freed, because the obligation of the principal cause is independent of the obligation of the secondary cause. Indeed, although the creditor remits to one of the secondaries, the other secondary causes are not for that reason free from the obligation of restoring their own part, unless the condonation was altogether full, or such can deservedly be presumed. - Lugo, Vogler, S. Alph.¹

4° If one of the equally obligated causes has restored the whole debt, the others are bound to repay a part to him, because each ought to satisfy according to the proportion of his fault. But if one could not or would not restore his own part, the rest ought to divide it among themselves.

5° One counseling or consenting is not bound of itself before the executor; for this man is bound first, because the executor, when the one mandating fails, is the principal cause of the damage. - Yet see the exceptions concerning which n. 765. q. 6°.

787. • Here it is to be treated only of the case in which the debtor is unable to satisfy all his creditors; otherwise no order in paying debts must necessarily be observed.

But creditors are 1° some privileged, who from a privilege of positive law have the right of seeking their debt before others; 2° others hypothecary, who from the title of mortgage or of security founded in the goods of debtors have the right of obtaining payment immediately after privileged creditors; 3° others common, who enjoy no benefit of privilege or mortgage.

788. Principles. - I. Before all things, privileged debts must be paid. But privileged debts are known from the laws of each State. Of this kind among the rest are taxes to be paid to the State, County, Municipality.

II. In the second place satisfaction must be made to hypothecary creditors, the order of time being observed, according to Rule 54 of Law in the Sixth: He who is prior in time is stronger in right.

III. Finally, in the third place common debts must be paid, as having no right of preference.

Another's thing existing with the debtor, for example in deposit, lease, loan for use, or to be sold, must before all debts, however privileged, be restored to its owner; for that thing existing in species cries out for its owner. Likewise (by Roman law) a thing bought on credit, the price not having been paid, nor pledge of the price given.¹

789. Questions. - Query 1° Are debts from delict to be paid before debts from contract?

Resp. More probably negatively, but all are equally to be paid according to proportion, because by no right is it established that the former are to be preferred to the latter.²

Query 2° Must debts from an onerous title be paid before debts from a gratuitous title?

Resp. Affirmatively, because one who promises gratuitously always places the tacit condition: if I am able to furnish it conveniently; nor can he expend goods gratis with prejudice to a creditor from delict or from contract. - S. Alph.³

Query 3° Must poor creditors necessarily be preferred to rich creditors?

Resp. Negatively, unless they are in extreme or grave necessity, in which case the rich creditor is bound from charity to come to their aid. The reason is that the poor have no right of preference; and the right of the rich man is as strict as that of the poor man, since commutative justice does not attend to persons.⁴ Yet it is probable that they can be preferred.⁵

Query 4° Are creditors prior in time to be preferred to later ones?

Resp. It is controverted. The first opinion denies it, because the law assigns no preference among these debts; but from natural right all creditors are equal, since individuals have right only in the person of the debtor, which alone is obligated equally to individuals, but not in his goods. For if the goods of the debtor were obligated, the creditors would already have dominion of them, nor could the debtor sell them, which is false.

The second affirms, because one prior in time ought to be stronger also in right. - Thus Lugo, Salmant.; and S. Alph.¹ says this is more probable, although he holds the former opinion as probable.

790. • Query 5° Are certain creditors to be preferred by the debtor to uncertain or unknown ones?

Resp. It is probably disputed on each side. Those who affirm say that certain things are owed to the owners by natural right, uncertain things to the poor by positive right only; which the patrons of the other opinion deny, who contend that restitution must also be made to the poor according to proportion, since this is presumed to be the will of the creditors, that what cannot be restored to themselves be restored to the poor.²

Query 6° Is it licit to pay one who asks first, although he is later in time?

Resp. 1° Affirmatively, if he asks juridically, because the legitimate sentence of the judge confers the force of privilege upon the creditor. - Thus all. - S. Alph.³

Resp. 2° More probably affirmatively also if he asks outside judgment, because he has a personal action against the debtor, and by asking for the whole debt he pursues his own right; but the other creditors ought to bear the cost of their own negligence.⁴ - Since the law which moderated cession of goods in the whole Federation⁵ has now been abrogated, let each one now consult the Statutes of his own State concerning the time within which payment accepted by a creditor is invalidated, who could have known the unstable state of his debtor.

Query 7° Whether can a debtor, knowing his own state to be unstable, satisfy integrally even one not asking?

Resp. Negatively, because, since all creditors are equal in right, and none among them pursues his right, and therefore no one becomes stronger in asking through diligence, natural equity demands that integral restitution not be made to someone with prejudice to the others. - S. Alph.,⁶ Lessius, and others commonly. - And also this restitution, if it is made by a debtor who knows his own state to be unstable,

unstable, within which time before a requested cession of goods it may be invalidated, the general law having now been abrogated,¹ let each one learn from the Statutes of his own State.

Query 8° Is a creditor who in this case accepted payment bound to restitution toward the other creditors?

Resp. The opinion more serious to S. Alph.² affirms, because he has no right that he be paid integrally with detriment to the others; hence he is bound to satisfy them according to proportion.

791. • Generally it can be said that it is required and sufficient that restitution be made in that way by which violated justice is fully repaired, or repaired to equality, and thus the injured owner is made harmless. Hence 1° of itself, for example the obligation of repairing scandal being set aside, it is not required that it be made openly; indeed, often it cannot be made thus, when the reputation also of the one restoring must be consulted.

2° It is not necessary that restitution be made by the debtor himself, but it can be made by another, provided the thing is returned to the owner. It can sometimes be made through a confessor. Yet great caution is then needed, both that the seal of Confession remain uninjured, and that the penitent, in the case in which some suspicion against the probity of the confessor would have to be feared from some part of it, know that satisfaction has in reality been made to the creditor.

3° It is not necessary that restitution be made while the owner notices; because this is not required in order that he be harmless. Hence the debtor can restore, for example, by increasing the weight or measure in selling, or the work owed in laboring, and in six hundred other ways.

792. Questions. - Query 1° Is restitution made through a simulated donation valid?

Resp. Affirmatively, at least more probably. The reason is that for payment it is not required that the debtor externally confess that he is paying. Hence the debtor satisfies whenever he pays even in those circumstances in which the creditor thinks that a gift is being made to him. - Thus the common opinion. - Carriere,³ etc., against Billuart.

Query 2° If a creditor, moved by gratitude, repays another gift to him, must this be restored to him?

Resp. Affirmatively. The reason is that that donation is not fully voluntary and spontaneous, as a merely gratuitous donation must be essentially; for it proceeds from an opinion of antidoral obligation or of gratitude, which rests upon a false foundation. - Thus Carriere, against Tamb., etc.

Query 3° In what place, and at whose expenses, must restitution be made?

Resp. 1° If the obligation of restoring is from a thing accepted and retained in good faith, restitution is not necessarily to be made in another place than that in which the thing now exists; nor is such a debtor bound to transmit the thing at his own expense elsewhere, where the owner perhaps now dwells. The reason is that he is not bound to restore the owner into the former state, from which he did not cast him down by formal injury.

Resp. 2° If the obligation of restoring has arisen from delict, restitution must be made in the place in which the owner would have possessed the thing if it had not been taken away, lest this man undergo damage from the injury of the debtor. Yet the expenses which the owner also would have made can be deducted; and if this man has expended more than the debtor has now expended, even that excess of price which is owed to the peculiar industry of this latter can be retained.

Resp. 3° If a thing must be paid from contract, one must stand by the clauses attached to the contract, if agreement was made concerning the place and mode of transfer. Otherwise attention must be paid to the special laws according to the diversity of contracts, or, if these are silent, to the custom of places.

793. • Query 4° Must a debtor from delict also pay expenses for sending back the thing to the owner, if those expenses exceed the value of the thing itself?

Resp. 1° Affirmatively, if the excess is not very notable, because both the debtor, by committing injustice, took such a burden upon himself, and the owner is not bound to suffer the loss of his thing. - Thus commonly.

Resp. 2° More probably negatively, however, if those expenses would be greatest with respect to the value of the thing to be sent back. Then, from the presumed will of the creditor, restitution would have to be made to the poor. For right reason and charity dictate that the creditor cannot exact that restitution be made to him with any expenses whatever. - Thus Lugo,¹ Billuart,² S. Alph.,³ who says that this is the most common opinion.

But theologians do not agree how great the debtor's loss ought to be for him to be excused from restitution to the owner himself. They hand down this rule sufficiently commonly: When, other things being equal, the damage which the debtor will suffer exceeds the damage of the creditor only twofold, it is not sufficient that the owner be deprived of his thing. But if it exceeds this proportion, it suffices that restitution at least be deferred, or, if it would be deferred in vain for that end, be made for pious causes. - Thus Lugo,⁴ S. Alph.,⁵ etc. Today, however, this controversy can scarcely have place because of the ease of transferring at least the price of the thing elsewhere. (o) p. 475.

794. • Query 5° Must a debtor restore again if he sent the debt through a faithful person, and it perished by accident or by the fault of a third party?

Resp. 1° A debtor from possession of good faith is bound to nothing; because, fault and agreement being set aside, the thing perishes for the owner, who is the creditor himself. Yet he would be bound after the sentence of the judge, if juridical fault had intervened.

Resp. 2° A debtor from contract is bound to nothing, if it is a question of another's thing existing in nature, accepted as a loan for use or deposit, etc., because the thing perishes for the owner, unless otherwise agreed. It is otherwise if it is a question of a thing owed in genus; because the debtor preserves dominion in it until it has come to the creditor, and he must answer for accidents of the price or thing transmitted until it is handed into the hands of the same.

Resp. 3° A debtor from delict is not freed from restitution and remains bound to it so long as he has not truly made the owner harmless; because he always remains the culpable cause of the damage which this man suffers. - S. Alph.,⁶ however, does not dare to condemn those excusing a debtor of this kind who sent back the thing owed through a confessor, yet he very much doubts concerning the probability of their opinion.

Except a threefold case, in which the debtor is exempted from every burden, namely 1° if the owner designated the person through whom, or the mode by which, he wishes the thing owed to be sent to him; 2° if the creditor indeed did not choose the person or mode, but left to the debtor the liberty of choosing whom or what he wished, provided one prudent and faithful is chosen; 3° if the person or mode was designated by law or by the judge. - Therefore the confessor who has taken upon himself the burden of restoring for a penitent will prudently ask the owner by what means he wishes the thing to be sent to him.

795. • Query 6° In what way must restitution be made for damages inflicted upon the Republic?

Resp. It can be done in various ways, namely 1° by letters, even anonymous, to the treasurer either of the Supreme Government, or of the State, or of the County, or of the place, according as restitution must be made to the Federated States, or to the State, County, or some special place, with notification of restitution required from him in the Newspaper destined for this. 2° By restoring to those who were unjustly injured by the Supreme Government, State, etc. (n. 802). 3° If it is a question of restitution owed to the Supreme Government, by buying and destroying paper marked with the sign of the Republic (Stamps of all kinds), or paper money (Greenbacks).

Query 7° What mode of restitution in many cases is rightly suggested to wives, children of the family, servants, and workers bound to it toward husband, parents, master?

Resp. That, if another mode cannot easily be had, they repair the damage inflicted by greater frugality, more diligent care of the household property, supererogatory labor, etc.

796. • I. As to any debts whatever, generally restitution must be made as soon as it can be done without grave inconvenience. For natural right requires that you not retain another's thing while the owner is reasonably unwilling.

Hence 1° one who culpably defers restitution remains in continuous sin and cannot be absolved. Moreover, if damages come to the owner from the delay of restitution, or profit ceases, he is bound to compensate these things.

2° One who defers restitution a little, for example for 20 days (L. IV. 679), without grave inconvenience to the owner, is not easily, from this precise reason, to be condemned of mortal sin, indeed not even of venial sin if there is some cause of deferring, for example hope of a more convenient occasion, etc.¹ - Yet recall what was said n. 719. 4° concerning absolution regularly not to be conceded to those who, when morally they can, do not restore before absolution.

3° One who would wish to restore in parts, when he can easily restore the whole, would not be absolved; because the owner is reasonably unwilling even in this. The same must be said of him who, when he can restore during the course of life, nevertheless defers until death; or who, being constituted in danger of death, would reject without sufficient reason the obligation of restoring upon his heirs. - Recall what was said n. 719.

II. As to debts from injury; all damages which followed from delay must be compensated, even when the delay was inculpable.² Cf. n. 797. Query.

But whether extraordinary damages also must be compensated, or those which do not necessarily follow from delay of restitution, is controverted. - It seems probably to be denied, because these damages could not have been foreseen, nor therefore can they be imputed. S. Alph. does not treat the question.

797. • III. As to debts from contract, generally one must stand by the conditions attached to the contract concerning time or concerning other circumstances, unless it is prudently presumed that the will of the other contracting party is otherwise.

Hence 1° restitution, or rather payment, must be made at the time concerning which agreement was expressly or tacitly made.

2° The debtor can anticipate, if the term assigned to payment is in his favor, as ordinarily happens; otherwise, however, if the same term turns to the utility of the creditor, as for example in furnishing money with profit to be perceived.

3° If the term has not been fixed, according to the opinion of many the debtor without sin at least grave can generally wait until he is warned by the creditor, unless nevertheless this man takes damage from it, or from fear does not dare to warn, or from forgetfulness or inability omits the warning, or the debtor obligated himself with an oath; for an oath of itself obliges as soon as possible.³

4° If the debtor has a just cause of deferring, he is not bound to compensate damage coming from delay.¹ - Thus commonly.

Query. Is he who delayed restitution from a just cause bound to compensate profit ceasing or damage emerging?

Resp. He is bound when the debt comes from delict; because although he did not sin by deferring restitution from a just cause, nevertheless from the preceding injury he is truly the unjust and culpable cause of that damage, and therefore that damage must be repaired by him. - Thus commonly, with S. Alph.² against others. - But if the debt comes from contract, he is not bound; because then the debtor is not the unjust and culpable cause of that damage, since he is by no means supposed to be in culpable delay, and so it does not appear by what title he is bound to this.³

317. Principle II. Cooperators simultaneously inflicting damage on someone can often be bound to integral restitution in solidum or solidarily, so that one, in default of another, must restore the whole. - This solidarity is the obligation incumbent upon individual cooperators, in default of the others, of repairing the whole damage which was inflicted by several together; yet by this law, that if reparation has been made by one, the others are no longer bound toward the injured party, with recourse nevertheless preserved for the one restoring against those who are obligated equally or before him. Now:

I. Individual cooperators are bound to restitution in solidum whenever they have had an influence upon the whole damage, so that the whole can be morally attributed to each one. For each one is bound to repair the whole damage of which he is the truly unjust, efficacious, and culpable cause.

But such are:

1. He who was the principal cause of the whole damage, as a mandator, or a thief who sought others as associates for taking away a stolen thing: "principally," says St. Thomas, a. 7, ad 2, "he is bound to restore who is principal in the deed."

2. Those each of whom was a necessary cause for inflicting the whole damage, as those giving a vote without which an unjust sentence is impossible, or two thieves taking away another's thing which one alone could not have taken away: physically indeed they cause partially, but morally the whole proceeds from each. So also those who ought from justice to avert the whole damage, and while they can, do not impede it; because morally they are accounted a necessary cause.

3. Those who, from a common conspiracy properly so called, were the cause of the whole damage, whether by mutual persuasion, by entering upon a plan, by common abstention, etc., as robbers who enter upon a plan of killing an enemy or plundering a house, and mutually incite themselves to this, or guards who agree about not impeding an injury: for they are the moral cause of the whole damage; but not those who without mutual influence simultaneously inflict damage, for example, set fire to the same house, or sink a ship, or snatch away the goods of the same person, because their influence is only partial.

4. Also those each of whom was a sufficient cause of the whole damage, as if two, discharging a firearm at the same instant, inflict a lethal wound on the same person, or, simultaneously giving evil counsel, move an agent to a damaging which the counsel of one would sufficiently have provoked.

II. On the contrary, cooperators are not bound in solidum to restitution, but only according to the proportion of influence, whose damaging action a) was neither necessary, b) nor sufficient, c) nor proceeding from conspiracy. For they are only the cause of part of the damage.

Thus he who, as a soldier in war, while others are doing damage, also caused some damages, is bound to repair only the part of the damage which he himself inflicted; or he who, while two are perpetrating theft in a house, comes up as a third and also steals; or he who sets fire to buildings which others have already efficaciously burned.

318. Principle III. Order among cooperators is to be observed, whether they caused the damage in the same grade or in a diverse grade. Hence there is a twofold rule:

I. If cooperators have concurred in the damage in the same grade and mode, each is equally and indiscriminately bound to restore, each one his own part, and if someone does not restore, those who are bound in solidum must restore this part proportionately.

Thus if of five all are equally mandators, or counselors, or participants, and the damage is 5000 fr., each one is bound to restore 1000 fr.; but if one does not restore, the others besides must each pay 250 fr., but they have recourse against him who did not pay his part.

II. If cooperators have concurred in the damage in a diverse grade, ordinarily they are bound in this order: 1. he who now detains another's thing; 2. the mandator; 3. the executor; 4. the other positive cooperators; 5. negative cooperators. - It is said: ordinarily, for exceptionally the order can be somewhat inverted. The principle is: he ought to restore first who in fact principally or more greatly influences.

Therefore 1) he who detains the thing, or the participant in the thing, is bound to restitution: he is bound by title of the thing received, which is the greatest obligation of all, because the thing cries out for its owner; but if the thing now does not exist, he is judged the detainer who before the others had profit from it, or who, after he detained it in his own name, unjustly consumed it; - 2) the mandator, who is the principal cause comparatively to the executors; to whom the counselor is equated a) if he induced the other into invincible error, for example, the one mandating him; b) if the damage following from the counsel was useful to him, the counselor, and not to the executor; - 3) the executor, who is principal in the deed, and after the mandator has the chief parts; but if among several executors one is principal, who acts in his own name and mandates the others, he is bound before the rest, not so if he acts in the name of all the others; - 4) the other positive cooperators, among whom of themselves there is no order, because there is no principal cause, so that they are bound equally; unless they are per accidens subordinated among themselves, for example, one persuading one person to persuade another; - 5) finally negative cooperators, who of themselves are accustomed to influence less than the others; among whom nevertheless perhaps he is bound first who is more strictly obligated to avert the damage.

Thence the corollary follows: if the superior damagers restore, the inferior are liberated; but on the contrary, if the inferior restore, the superior are not liberated; thus:

a) If the principal cause has restored or has obtained condonation from the legitimate owner, all secondary causes are now bound to nothing; on the contrary if a secondary cause has restored or obtained condonation of his part, the principal cause is not therefore liberated, nor are the other secondary causes for their part.³

³ Yet see C. C., art. 1284 and 1285.

b) If one of the secondary causes has restored, the principal cause is bound to recompense him; and if this one fails, the other secondary causes are bound to compensate him according to the proportional part.

c) If one of the negative causes has restored, the positive cooperators according to order are bound to restore the whole to him; and if they fail, the other negative causes are bound to pay him their part.

When the detainer restores, the others are bound to nothing; when the mandator restores, the detainer must restore to him; when the principal executor restores, first the detainer, and in his default the mandator, must compensate the executor; when a secondary positive cooperator restores, first the detainer, then the mandator, third the principal executor, is bound to restore the whole, and in their default, the other positive cooperators for a proportional part; when a negative cooperator restores, the positive cooperators are to restore in the same order; but if these fail, the other negative ones, their part.

S. Th. II-II, q. 62, a. 5.

320. General principle. - Restitution per se is to be made to him whose strict right was injured, and, he being deceased or having disappeared, to his heirs or to those having charge. For by restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things; but this cannot be had unless what is lacking is supplied to him who has less than his own. For this it is necessary that restitution be made to him from whom it was received (q. 62, a. 5).

Whence if restitution has been made to another than the injured person, the obligation of restoring remains, unless the thing was without fault in the possession of the one restoring and has passed over.

321. If the injured person is certainly known, generally restitution is to be made to him himself, namely, to him who was legitimately possessing the thing and who here and now has the right of possessing it: thus as often as it can be done without great inconvenience. For the thing cries out for its owner; that is, not for him who has the bare dominion of property, but for him who here and now legitimately exercises dominion, or for the legitimate possessor (a. 1239). Whence if a thing has been taken away from a depositary, lessee, or curator, it is to be restored to him to whom injury has been done, but not to the proprietor. Yet there are exceptions:

1. If a grave reason is present, restitution can be made to another: thus a thing can be returned to the owner, whenever he could recover it from the possessor only with difficulty or trouble, or if the possessor himself wished to use it for harming; and if it has been stolen from a son of a family, it can be returned to the parents lest it be squandered by the son.

2. If the thing has been received from a son of a family, a pupil, a madman, a religious, from those goods whose administration does not belong to them, it will for the most part have to be restored to the father, tutor, curator, prelate, etc. (a. 1241).

3. If the injured person has died, restitution is to be made to the heirs or those having charge; nor can the goods be distributed to the poor or for Masses for the deceased,¹ unless the heirs consent or there are none at all.

¹ S. Poenit., 7 Feb. 1899.

4. If the owner has made a cession of all goods to creditors, restitution must be made not to him himself but to the administrator of the goods, as civil law also prescribes; unless for those goods which are necessary to the owner for sustenance if he is in grave necessity.

5. If a community or society has been injured, restitution is to be made to its administrators, not to individual members, even if the society pursues some accidental evil ends or expends goods for evil uses, because the society as such has suffered the damage. Unless, however, it is essentially evil and pursues only an entirely wicked end, as a Masonic sect or idolatrous community: then restitution will have to be made not to the society itself, which cannot have the right of possessing, but to the individual members,² or, if this cannot be done, to the poor.

² S. C. de P. F., 10 Feb. 1795 and S. Off., 21 Sept. 1842, ad 4.

6. If damage has been inflicted on an insurance society, restitution will have to be made to it, whether it belongs to the treasury, or is a private society, even if because of a pact of reinsurance for greater damages it is impossible to know what society in fact suffered the damage. In this last case several theologians say that restitution is to be made to the poor or to pious causes. But, as Vermeersch notes,³ this is not the practice of the Sacred Penitentiary. Whence Genicot:⁴ "Practically it seems to suffice that restitution be made to the administrators, when the injured person cannot be better detected, and if this is regularly done, a certain compensation exists among the various societies." Nevertheless, he does not seem to be disquieted who in good faith has already restored to the poor.

³ Th. M. II, n. 494.

⁴ Th. M. I, n. 658, VII. It is better nevertheless to warn several of the administrators or even associates, lest the restitution made be defrauded by an unfaithful administrator.

322. If the injured person is doubtfully known or uncertain, first of all inquiry must be made with diligence proportioned to the value of the thing. But if the doubt remains:

1. If it is among a few, the thing or its price is to be divided among them in the better way by which it can be done, nor can it be given to the poor: thus, for example, money found, lost or taken away from one of four or five persons.

2. If it is among many persons distant from one another or easily changing domicile, as easily happens in great cities, so that there is no probability that it can be restored to the true owners, restitution is to be made to any pious causes.

3. If it is among several of the same place, restitution is to be made to them, if it can be morally done; but otherwise to the poor or to pious works of that place where the injustice was committed. Thus merchants defrauding in weight, measure, or quality of wares must restore by increasing the weight and measure, or by bettering the wares or diminishing the price if the same buyers are accustomed to return; otherwise they should restore to the poor of the same place, according to the presumed consent of the owners.

Nevertheless, although profit has come from fraud, provided that no buyer must be supposed gravely injured, he would sin only lightly who repaid the whole to the poor, especially of the same place; indeed the one restoring is excused even from light sin if he acts thus from a reasonable cause, for example, if without notable danger or damage to himself he cannot render to the clients, or if there are very needy poor to whose relief the injured owners are judged more easily to consent.

323. If the injured person is entirely unknown, even after diligent inquiry has been carried out:

1. If the thing has been received in good faith, it is not to be restored, as was said concerning the possessor of good faith and concerning lost things, unless to the owner if he appears before prescription.

2. If the thing has been received in bad faith or from delict, restitution is to be made to works of mercy or pious causes, that is, to the poor, good works, Masses for the souls of purgatory, etc., because it is repugnant to natural law that someone can be enriched from another's thing through injustice; or also because the damage which through injustice was inflicted not only on the owner but also on human society, is to be repaired as far as possible by restoring to good works for the assistance of society. This by ecclesiastical law has been expressly established for simoniacs and usurers, and by the custom of the law of nations has been universally confirmed, so that a private person cannot do otherwise. Hence:

a) In restitution of debts toward unknown persons, the Pontiffs, as curators of pious causes, for a grave cause grant condonation or reduction.

b) If the unknown owner appears after restitution has been made to the poor, if the one restoring sought the owner with the required diligence, since he was of good faith, probably he is bound to nothing further, unless the thing still existed among the poor, in which case it would have to be repeated and handed over to the owner; if he was not diligent, as a possessor of bad faith he must compensate the damage inflicted on the owner.

c) If the debtor himself is poor, he can keep a proportional part of another's thing if it is necessary for relieving his poverty; as some say concerning one who is so poor and burdened with debts in such a way that it is not foreseen that otherwise he can free himself from debts. But this is not to be extended as a general rule to other cases, because the general reason always holds that no one ought to carry away advantage from his own malice. This is altogether true if the poor person deliberately committed injustices toward unknown persons so that he might become rich from them, or if he now omitted restitution in fraud so that later he could retain it for himself. In practice, however, poor persons are often excused from restitution on account of inability, if they are truly poor; for some allege poverty as a pretext.

4. Sometimes a dying person is bound to restitution or to reparation of damage; in this case:

a) if he is found in good faith, and no time remains for prudently admonishing him concerning his obligation, or it is foreseen that the admonition will not profit, this being omitted, he is to be absolved;

b) if fruit is hoped for, or if the penitent is not in good faith, e.g., if he doubts, then he is to be admonished and helped at once toward restitution, for if this can then be fulfilled, it does not suffice to transfer this burden to the heirs, to whom trust is not easily to be given;

c) if restitution cannot be made at once and the obligation is hidden, let him commit the money to the confessor, or rather to another faithful man, so that it may be secretly sent back to the creditor. But if he does not have the money, let him leave that sum to the creditor himself in the testament, omitting mention of restitution; or he can also add a codicil by which he orders the heirs to give a sum to a trustworthy person to be expended according to the will of the sick person; or if a notary could not conveniently be had, in regions or circumstances where his office is required, let him declare by word or writing that he has left a note with a third person for notifying what he wishes to be done after death, and that he wishes this to have the force of a testament;

d) if the obligation is not hidden, nor can it be fulfilled at once, let the confessor procure that restitution certainly be made through the heirs, whether by a note to be handed to the creditor, etc.

If the obligation of restoring is doubtful, as can happen in the administration of goods, let the sick person take care that, the matter having been examined, his own be given to each.

But if reputation is to be restored, let him do it in the better manner in which he can, by word, or by writing to be published if necessary, or by a retraction before witnesses who can attest publicly. But the best restitution of reputation is made through a third person of great authority.

The chief circumstances of restitution are contained in this verse:

How much you will restore, to whom, in what order, how, when?

Goods of twofold kind must be distinguished here. Some are certain, others uncertain. Certain are called those whose owner is certain and known, uncertain those whose owner is unknown or uncertain.

§ I

To whom are certain goods to be restored?

I say : Certain goods are ordinarily to be restored to him from whom they were received, whether he be their owner, or only legitimate possessor ⁴¹⁴ . ⁴¹⁴ Here q. 62, a. 5, co.

Proof of the first part⁴¹⁵ . Restitution is employed that equality may come about, which consists in the equalization of things. Yet this cannot be had unless restitution be made to him who through the taking away has less than he ought to have. Therefore. ⁴¹⁵ Ibid.

Proof of the second part; because while someone possesses a thing under legitimate title, although he is not its true owner, as the bailee for use, depositary, etc., he nevertheless has a right either of using it, or of guarding it, preserving it, etc.; which right is injured by taking away the thing, nor is it repaired except by restitution made to him, and not immediately to the owner.

I said, « ordinarily, » because there are several exceptions. First⁴¹⁶ . When a thing to be restored appears gravely harmful to him to whom restoration is to be made, it ought not then be restored to him, but either kept back, that it be restored at a suitable time, or handed elsewhere for safer keeping; because restitution is ordered to the utility of him to whom it is restored. I say the same if he reclaim it to another's damage : both because he has no right of reclaiming for this end; and because by the law of charity, according to which God commanded everyone concerning his neighbor, we are bound to impede evil, whether spiritual or bodily, of our neighbor when we can conveniently do so. ⁴¹⁶ Ibid., ad 1.

Second exception. When nothing concerns the interest of him from whom the thing was received that it be rendered immediately to the owner, it can be given to one or the other.

Third exception. When he from whom the thing was received is not capable of dominion or administration, as is a minor ward, a son of family with respect to adventitious goods, a wife with respect to common goods, a Religious, etc., the thing must be rendered to tutor, father, prelate, husband, etc. : otherwise in the external forum, according to L. Pupillus, ff de Actionibus, you will be held to pay again, unless you prove that the thing rendered was applied to the utility of the father, ward, family, monastery, etc. Nevertheless in the forum of conscience such proof does not seem required, but it seems sufficient for your release from second restitution if you prudently believe that those to whom you restore will discharge their office. From this exception except things conceded to Religious for use; for these can be restored to themselves, not to prelates.

§ II

To whom are uncertain goods to be restored?

Goods are said to be uncertain in a twofold way : 1° simply, when their owner is absolutely unknown; 2° secundum quid, when the owner is known secundum quid and in general, but who he is in particular is unknown, as if you know you owe something to one of several, but know not to whom.

I say 1° : All goods simply uncertain, whether gotten from delict or not, or found, are to be expended on pious uses if, diligent inquiry having been made, the owner does not appear ⁴¹⁷ ; for they cannot, as others wish, be said abandoned, since their owner certainly exists, though he be unknown; therefore they are to be expended according to his presumed will, that they be expended for his, or his kin's, or the state's utility, as we proved at greater length dissertation III, on Dominion, a. 1, § 4. ⁴¹⁷ Here a. 5, ad 3.

[In the same place was expounded and proved our opinion concerning goods of another possessed without delict. The locus of St. Thomas to which the reader is here referred must be restricted to goods unjustly acquired, seeing that the question is thus posed : « Whether restitution must always be made to him from whom something was taken? » namely by theft.]

I say 2° : Goods uncertain secundum quid are to be restored to their owner in the best way possible. This general dictum is plain of itself. And hence in particular,

If you know you owe something to one of two or more, but know not determinately to whom, and doubt persist after diligent inquiry, the thing is to be given to them in common, that either they divide it among themselves in kind or in price, or draw lots, or otherwise agree among themselves; these not agreeing, the matter be committed to the judge's arbitration.

If damage have been inflicted upon the community itself or the city, restoration must be made not to particulars but to the city itself or the community; because the community itself was harmed, not the individuals.

But if damage have been inflicted immediately upon individuals of some community or city, as happens in unjust war or plundering of towns, fields, in sales, namely when merchants, innkeepers, bakers and the like defraud indiscriminately buyers with adulterated wares, unjust measures or weights; and yet it is unknown in particular to whom damage was inflicted : restitution ought to be made not to the poor, but insofar as possible to the very persons harmed. If therefore you have plundered inhabitants of another district, restore the sum to be divided among them by the parish priest or an honest man, according to the proportion and probability of each one's loss. If you defrauded by selling, attend to who used to approach your shop more or less, and render to them more or less, namely by selling better wares, or at lower price, or with better weight or measure, or otherwise.

Finally, if you inflicted damage upon one or very few of some city, and to whom or to which ones remains absolutely unknown, but the city is known, restoration must be made to the poor of this city, because thus the owner's will is presumed, provided the thing be of some moment; for if it be of light moment, it can be restored to any poor man ⁴¹⁸ . ⁴¹⁸ S. Lig., Homo apost., X, 64.

[You will ask whether, when a creditor was compelled to make cession of his goods, restitution ought to be made to himself or to his creditors.

I answer. Generally speaking, restitution ought not be made to the creditor, but either to the commissioner constituted by the judge for collecting the goods remaining, before distribution, or, it is posited, because the thing or money to be restored belongs to the highest creditor, and his creditors have strict right that from the goods he possessed, or which accrue to him, they be made whole ⁴¹⁹ . — Except unless the creditors of the assignor, after cession, have absolutely condoned to him the part of the debt unpaid ⁴²⁰ . ⁴¹⁹ Cod. Gall., art. 1269. ⁴²⁰ Ibid., art. 1267.

Nevertheless sometimes it is licit to restore to the creditor himself, namely if he be honest and owe himself to hand over the thing or money to his creditors, if the debt be of small moment; likewise if he be in grave necessity and greatly need the thing owed him; for, as the theologians commonly teach, it is lawful for the assignor to withdraw those goods which are altogether necessary for living ⁴²¹ .] ⁴²¹ S. Lig., n. 699; Gousset, n. 772; Gury, n. 700.

I say : Everyone is bound to restore at once, if he can ⁴²² . ⁴²² Here q. 62, a. 8, co.

Proof 1°. He who detains another's property against the reasonable wish of its owner sins in act ⁴²³ . Yet it is not licit, no, not for the least time, to delay in sin, namely as to act and affect. Therefore. — Proof of the major. He who detains another's property against the reasonable wish of its owner deprives him of the use of his own thing, and thus does him an injury; for unjust detention of another's thing has the same character of harm as unjust acquisition. Therefore. ⁴²³ Ibid.

Proof 2°. Although the precept of making restitution according to its form is affirmative, it nevertheless implies within itself a negative, as the reason of its obligation, namely not to detain another's property ⁴²⁴ ; for therefore you are bound to restore because it is not licit to detain another's property. But negative precepts bind always and forever. Therefore. ⁴²⁴ Ibid., ad 1.

You will ask 1° how that « at once » is to be understood.

I answer. If the speech concerns the purpose of restoring, it is understood at once mathematically, that is, at the very instant when you reflect that you are unjustly detaining another's property, you are bound not to will to detain it any longer, or to will to restore it, otherwise you sin against the negative precept by which detaining another's property is forbidden; just as he who conceived the purpose of stealing is bound at once mathematically to abandon it and not to will to steal, otherwise he sins against the precept : Thou shalt not steal.

But if the speech concerns external restitution, « at once » is understood morally, that is, at the first opportunity; because, since it is an external act, it necessarily requires an interval of time for its execution, which can be impeded by various obstacles or inconveniences, so that the owner can neither reasonably be unwilling nor ought he to be, if his thing is detained until it can be restored at a suitable place or time.

[Note that a creditor, unless this be imposed on him by pact or sentence of judge, is not bound to receive the debt in parts; because the debtor contracted the obligation of such a determined thing, not indeed of handing over or paying parts of this thing. So from natural and civil law ⁴²⁵ . ⁴²⁵ Cod. Gall., art. 1244; Ital., 1246; Austriac., 1415; Boruss., I, 16, § 56-58.

You will ask 2° whether damages ensuing from delay of restitution must be compensated.

I answer. A distinction must be made whether the obligation of restitution was born from contract or quasi-contract, or arisen from injury. If the former, either the cause of the delay is just, and damages are not to be compensated; because the delay is only their material cause, not formal. Or the cause is unjust, that is, the debtor is constituted culpably in delay, and damages are to be compensated, because they follow formally from the delay.

If the latter, all damages are to be compensated, even if the debtor be not culpably in delay, that is, though he be excused for just reason; because the delay follows from unjust acquisition or damaging, and therefore has become the formally unjust cause of the damage ⁴²⁶ . ⁴²⁶ S. Lig., Homo apost., X, 104 et 105.

This is certain concerning ordinary damages; but it is contested whether extraordinary damages also ought to be compensated, that is, those which follow from delay of restitution not necessarily but occasionally only.

It must beyond doubt be denied concerning those damages which do not follow necessarily, in the sense that they could easily have been forestalled by the owner of the thing ⁴²⁷ ; for these must be imputed to himself. It is also denied probably concerning damages which could not have been forestalled by the owner; for neither must they be imputed to the damager who, since he could not foresee them, nor consequently will them implicitly, was not their formally unjust cause.] ⁴²⁷ Lugo, disp. 18, q. 32.

You will ask 3° whether he who unjustly detains another's property sins continually and at each moment.

I answer, more probably affirmative : because as long as he who unjustly detains another's property continually transgresses the implicitly negative precept of restoring, he continually injures his neighbor, impeding him from possession and use of his own thing or what is owed him; and this freely, because that transgression or injury continually hangs upon the free will not to restore. Therefore he sins continually.

You will ask 4° whether it be one sin alone continued, or several distinct in number.

I answer, that it is one sin alone continued, unless the first purpose be morally interrupted; because the first purpose virtually perseveres in voluntary continued detention, so that, while it is repeated, even a hundred times, it is reckoned the first being continued, and therefore one sin morally.

But the first purpose is reckoned morally interrupted when it is recalled, either formally through an opposite purpose, or virtually, when someone thinking about detaining further the other's property does not assent, but distracts his mind elsewhere, as if recalling the prior purpose.

Dico 1° : For debts arising from unjust acquisition, detention, or damage, restitution must be made at the expense of the debtor, in the place where the owner would have possessed the thing if it had not been taken away. This is the common opinion.

I. QUESTION I. To whom ought a thing received from a possessor of good faith to be restored? ANSWER. The thing is to be restored to the lord, because it always cries out to its own lord. And if he to whom restitution is to be made be dead, the goods ought to be restored to the heirs, either by testament or ab intestato. If you have received goods from religious, they are to be restored to the monastery; if from a son of a family, to the parents; if from a wife, to the husband — unless it be established that alienations of this kind were made with the consent of the lords.

II. If the thing to be restored be pernicious to the lord, you ought not to restore it to him at the time at which it is harmful to him. Wherefore arms deposited with you you ought not to render to a madman, or to another who will make ill use of them. Similarly out of charity you ought not to restore money which you foresee will be squandered by the lord upon harlots or other crimes.

III. QUESTION II. To whom is restitution to be made when the lord is unknown? ANSWER. Of the restitution of things found it has been spoken above. Now the discourse is of things taken away by theft, or by another title, which are found with a possessor. First, all diligence is to be used that the lord be found. If it be doubted whether the thing is to be restored to Peter or to John, the restitution is to be divided in proportion to the doubt. If finally the lord can in no way be found, the goods are to be distributed among the poor. Similarly, that goods acquired by simony are to be laid out upon pious works, the more probable opinion teaches. Goods gathered by usury, if those from whom the usuries were extorted are known, ought to be restored to them; if they are unknown, they ought to be conferred upon the poor. When the buyers of some community have been injured by unjust sales, then the buyers of the same place ought to be compensated by sales at a cheaper price, when the injured buyers are unknown. In these cases the parish priest or the bishop is to be consulted.

IV. Authors dispute whether a payment made not to your creditor, but to another to whom your creditor owes just as much, is valid. Loyseau, Castropalao, Layman, and Bonacina affirm it, who cite Molina, Valentia, and others. This opinion is to me false. Since Peter your creditor has a right to exact from you your debt. But Paul, Peter's creditor, possesses no right of demanding anything from you. By what reason therefore can you pervert these rights? Who constituted you Peter's curator, that you should pay his debts? Can you filch goods from Peter, that you may pay his debts? Why therefore will you be able to pay the hundred which you owe him, and which are his, to his creditor?

V. QUESTION III. What order is to be observed in restitution? ANSWER. When a debtor is not solvent for all his creditors, the laws determine that some of these are to be preferred to others. For some are creditors who by natural law ought to be preferred to the rest. Others the positive laws decree to be preferred. These laws oblige in conscience, whatever Diana, Machado, Serra, and others say to the contrary; whose opinion the Salmanticenses undeservedly repute probable, or at least not improbable.

VI. Creditors whose goods subsist in kind with the debtors, and whose dominion has not been transferred — as are pledges, things lent for use, deposits — ought by natural law to be preferred to all creditors, as all confess. That certain debts, when they subsist in their proper kind, are to be preferred to uncertain debts, the more common opinion holds. What is safer I scarcely perceive. Wherefore the circumstances are to be regarded, and the case, which rarely occurs in practice, is to be resolved by the judgment of prudent men.

VII. QUESTION IV. Whether a seller ought to be preferred to privileged creditors, while the thing subsists in kind with the buyer? ANSWER. There are commonly excepted the goods of the Church, of minors, and of the treasury, whose dominion is not transferred to the buyer until the price be paid. It is disputed only concerning creditors who sell wares on credit to other buyers, namely whether these, when their wares subsist in kind with the buyers, the price not having been paid, ought to be preferred to other creditors. The more common opinion affirms it, which seems also more conformable to the usage of the external forum; and this seems more consonant with natural equity, that when the seller's thing subsists in its own kind, it be not applied to strangers, the lord or seller being unwilling.

VIII. QUESTION V. What order is to be observed among debts either from an onerous or from a gratuitous contract, or from a delict? ANSWER. Debts from an onerous contract — namely from sale, exchange, letting, and the like — ought altogether to be preferred to debts from a liberal promise even accepted, from a legacy, a testament, and so forth. And this holds true even if the debt were contracted on account of a promise of paying a daughter's dowry, or of giving a legacy to a church, to the poor, and the like. Since God does not accept sacrifices made from robberies.

IX. There is disagreement whether debts from a delict ought to be preferred to debts from an onerous contract. The first opinion defends that debts from a delict are to be preferred, when the other debts are not confirmed by hypothec, or when the thing does not subsist in kind. The second opinion defends the opposite, namely that debts from an onerous contract are to be paid first. The third opinion contends that no order at all is to be observed, but that payment is to be made to all in proportion. The Salmanticenses say that all those three opinions are probable. And yet one alone is true. What in a matter obscure and involved enough seems to me the more probable is that debts contracted earlier ought to be paid earlier, whether they be from a delict or from a contract. The reason is that, while the debtor contracted the earlier debts, he was, as is supposed, solvent, and the creditor acquired a certain right. Further, this lawful and certain right cannot be injured by later debts: because while the debtor contracts these later debts, he has not wherewith to pay, since his goods are already obligated to the earlier creditor.

X. QUESTION VI. How are hypothecary creditors to be preferred to others? ANSWER. A hypothec affords a right in the goods which are subjected to it. Wherefore creditors to whom the debtor's goods have been designated under hypothec, whether express and special or tacit and general, ought to be preferred to all other personal creditors, even privileged ones, as all teach: because these have a right not only against the person, but also in the goods hypothecated. But among hypothecary creditors, he who is prior in time is stronger in right.

XI. Those who confer moneys to be laid out upon the building of a house, upon the tilling of a field, upon the redeeming or buying of a fixed property, which goods are burdened with a hypothec for the security of the creditors, who expressly demand that these goods be obligated to them, are to be preferred to earlier creditors having only a general hypothec. But as regards this the customs of tribunals are various, according to which the debts are to be paid.

XII. Among simple or personal creditors, who have an action only against the person, those are preferred who give moneys for the cause of funerals. Under the name of funerals come also expenses in the curing of an illness. A betrothed woman handing over a dowry before marriage, the marriage not following, contracts a privileged credit to be preferred to other personal creditors who have neither an express nor a tacit hypothec. He who deposits moneys with a public depositary or banker, no usury being perceived, is preferred to all personal creditors of the same public depositary; but otherwise if he should perceive usury, because then he is not a depositor but a lender.

XIII. QUESTION VII. What order is to be observed among simple, non-privileged creditors? ANSWER. Preference among these is to be referred to the rules of natural law, since the laws determine nothing concerning them. One opinion defends that no preference is to be admitted among debtors of this kind, but that the goods are to be divided and distributed in proportion. The other opinion contends that those creditors are to be preferred who are prior in time. And the reason assigned above seems pressing enough: therefore this opinion is the more probable, whether the creditors be poor or rich. There are many laws which favour the first petitioners. Wherefore each ought to regard the laws of his own country.

XIV. QUESTION VIII. Can a debtor secretly admonish a friendly creditor to sue first, and pay him the whole debt to the detriment of the other creditors? ANSWER. There are not wanting those who affirm it, especially Fr. La Croix, who in Book III, part 2, no. 405, writes these things: According to the probable opinion that the first suitor is to be preferred, a debtor will be able to admonish a creditor friendly to him that he intends to pay him who sues first; and thus without doubt the other will be moved to sue. This opinion prepares the way for frauds and guiles, and betrays its own falsity. How far this and other like paradoxes are abhorrent from Christian equity and simplicity, everyone sees.

ALL agree that restitution is owed by him from whom the thing was accepted: Four conditions, however, being laid down.

The FIRST is that he from whom it was accepted have a right to the thing, either as Owner, or as steward, or keeper.

The SECOND, provided that no loss is going to accrue from it to him from whom it was accepted, nor to another, for instance, that he is going to squander the thing, or that others are going to use it for crime.

The THIRD, if the giving was not of itself unjust, as in the case of a simoniac; yet if it was joined from the origin with an external sin, for instance, because it is the price of fornication, it is no obstacle. Yet even to a simoniac restitution can be made, Caspensis says sect. 1. before a sentence is delivered against him by the judge. So also Navarre Lib. 4. de restit. cap. 2.

The FOURTH, that the restitution be made to him from whom you received it, either by yourself, or through another. See Valencia puncto 4.

HERE a question occurs: Whether another's thing, accepted from a thief, ought always to be restored to the true Owner: The reason of the doubt is that it may have been accepted from him in good faith: Therefore it is to be given back to him, and the price paid is to be recovered; and so think Alens. 4. part. quaest. 86. memb. 3. art. 5. Summa angl. V. Restitutio, Gabriel 4. dist. 15. quaest. 3. dub. 5. Navarre Manuali, cap. 17. num. 9. Valencia at the place cited, provided it be given back to him to redeem his own price, not that the thief may retain it. This seems to me true, against some as reported by Valencia at the place cited and Fagundez in septimum praeceptum, Lib. 7. cap. 20. My reason is that I am bound to look first to my own innocence, rather than to another's; and to my own family property, rather than to another's; why, therefore, should I lose my own price without profit, so that another's thing may be restored?

Yet Peter Eligius Bassaeus says V. Restit. 4. §. 2. num. 7. if he does not find the thief, or the thief, when found, is unwilling to give back the price, the thing is to be restored to the Owner. So Peter of Navarre lib. 3. cap. 4. num. 191. Filliucius tract. 32. num. 85. Sayrus lib. 10. tract. 2. num. 17. Lessius lib. 2. cap. 14. dub 3.

But why should I without profit deprive myself of my own price, when the debt is in the thief? I know this can be done in the external forum. Let him act meanwhile; the thief can be found and compelled.

Meanwhile I am not bound to give it back in conscience, as Filliucius says tract. 32. num. 84. and others, although others disagree.

UNCERTAIN debts arising from a lawful contract, with the creditor unknown, or too remote, you may retain; for since by Canon Law alone uncertain debts, unjustly contracted and from a wicked acquisition, for instance from usury, devolve upon the poor, I do not see why these should be paid. See Peter of Navarre lib. 4. cap. 1. num. 46. Layman lib. 3. sect. 3. tract. 2. cap. 9. Lessius lib. 2. cap. 14. num. 58. Bassaeus num. 4.

THE Sainted Doctor indicates these rules in the Confessionale, cap. 4. part. 2. concluding with that epiphonema of the Apostle 13. Reddite omnibus debita, etc.

This question contains many things, and those various, to be discussed; for since the things subject to restitution are goods, and those goods are of many kinds, namely goods of fortune, as riches; of the body, as the integrity of honor and of fame, and goods of the soul; and among these goods some are of difficult restitution, as the health of the body, one must treat of all of them: Whether they are included under the debt of justice; or whether they are to be compensated by other goods.

Again, secondly, the debt of restitution can arise from the mode in which the things themselves are held, and thus the equality to be made can fall upon the mode by which the thing was acquired, as through various contracts, through donation, etc. Likewise through hunting, fowling, fishing, digging, and through some shameful action. Therefore these also must be treated of. Thirdly, from goods impeded to someone. These I shall discuss one by one.

The more excellent the goods taken away, the stricter the obligation of restitution that weighs upon one; provided those goods be of such a nature as to be capable of being restored. Among these goods, moreover, some are dearer to the possessor than others; for goods of fame usually outweigh goods of fortune in everyone's estimation, and indeed those are in themselves to be preferred. Goods of the Soul, too, as much as the soul itself surpasses the body, are deservedly considered better; from these goods, therefore, unjustly taken away, arises a varied obligation of restitution; for some there are which, when taken away, perish; others, however, remain, so that the same things can be restored. These I shall weigh one by one through the doubts.

We have TREATED of goods to be restored insofar as they are considered in themselves; now we must consider those which are unjustly acquired, or possessed under an unjust title. For some are acquired by contracts, in which forms are prescribed which no one can transgress either licitly or validly; and to these contracts persons who are suitable, or capable, are supposed, while others are declared incapable by law. Others are possessed by donation, which likewise has its own rules if it is to be valid. Many things pass into another's ownership by title of prescription, but for this the laws require various conditions, as I shall weigh below. Certain things are given by title of payment for the function of an office, or for meretricious prostitution. Some also, by fowling, hunting, fishing, the use of common things, illicit games, and lastly by unexpected discovery, are taken into the possession and ownership of one person; of these the laws make various determinations. In the following Doubts we must inquire whether, how, and when these things ought to be restored to their proper Owners.

THREE cases are adduced in which things acquired by contract must be given back. The first, if the contract is unjust and null by the law of nature. But when this happens will be said in the Disput. de contractibus. The second case is if the contract is null by some human law, as a purchase from a minor; or if it impedes the translation of ownership, for what reason. Testators cannot be deprived of necessary heirs. The third is when the contract is rescinded by the sentence of a Judge, for a human law, founded upon the presumption of fraud. See Valentia disput. 5. quaest. 6. punct. 5, and Tanner. disp. 4. quaest. 6. dub. 13, citing others. Thus it is gathered from D. Bonaventure in speculo animae, cap. 2.

AND the rationale of this last case is that what is given through fraud is considered to have been accepted involuntarily; but for the validity of contracts a free and voluntary consent on both sides is required, which is destroyed when error intervenes, as is plausible among Theologians and Jurisconsults. Yet if the error is voluntary on the part of the giver, then it is taken for fraud, and the contract is rescinded, and the obligation of restitution follows. See the authorities cited.

IT IS ANSWERED that this is so when the Donation is invalid, either by the law of nature, as when it is coerced, or if it was not absolute but conditional, and the condition is not present in fact; or it is void by human law, as that which is made by a Minor without the consent of his Tutor l. Pupillae, ff. de acquirendo rerum dominio, and that which is made between husband and wife l. si Sponsus, ff. de donat. inter virum, et uxorem, except in certain cases noted by Sylvester v. Donatio; and that which is made between a Father and a son not emancipated l. ult. C. de Impuber, except in the cases given by Sylvester loc. cit. See Tanner disput. 4. quaest. 6. dub. 11. num. 315.

From which doctrine it follows that what Adrianus de Restit. says is true — Alensis 4. p. quaest. 86. membr. 3. art. 29, Altisiodor. lib. 4. sum. quaest. 7. de Restit, and D. Bonav. Apologia de paupertate Christi, cap. 2. §. Secundus modus mendicandi, et ad 8. — namely that the poverty of those who by simulated sanctity and poverty extort alms is against justice, and accordingly that such men are thieves, which he proves from D. Ambrose lib. 1. de offic. cap. 16 and D. Augustine de operibus Monachorum, cap. 26.

FIRST, indeed, he is held to restore, when he has not earned it by negligent operating, or omitting, the things that are his duty. Thus Clerics, by omitting the office to which they are bound by some benefice, are held, in proportion to the omission, to restore, as was proved tom. 4. disp. 17. quaest. 10. ad prop. 10.

SECOND, if he had a fee from elsewhere, as a Judge who receives a new fee in order to render a just sentence. Thus commonly, with Adrian, §. restat inquirere, and Valencia.

THIRD, one who receives a fee for an office to which he is otherwise bound, as for bearing true testimony, cap. Non sane 14. quaest. 5. and the Doctors teach in Valencia.

MOREOVER, that which is received as a fee for a wicked action against Justice, and brings no other benefit to the other party besides that which is done against Justice, as for killing a man, for rendering an unjust sentence, etc.

From this burden certain Judges indeed wished to vindicate themselves when rendering an unjust sentence; but not, if they judged justly; chiefly for this reason, that a judge owes a just sentence; but by no means an unjust one; whence if he sells Justice, owed of itself, through the intervention of gifts, he lies subject to restitution: But since he does not owe injustice, they hold that if the Judge received something for it, he can retain it for himself.

MOREOVER, they strive to fortify this by another reason, because, namely, against a Judge remunerated by one of the litigants for a just judgment, an action is granted; and he who had bestowed the gifts can bring suit, since by another title that right will have to be adjudged to him: but the action of him who carved out for himself, by suborning the judge, a judgment favorable to himself for an unjust sentence, perishes entirely, and is proscribed.

I GRANT indeed that the former reason, as utterly inept, was deservedly turned into a mockery of its authors by a certain Theologian of Salzburg, who assails them with a pen sharp enough; For if therefore the price of a just judgment must be restored, because a right that is owed cannot be sold, therefore neither can a right not owed be sold: And, if therefore I cannot sell a righteous Judgment, because I already owe it to the one who would buy it, therefore I can also expose an iniquitous one for sale, because I do not owe it; since, however, what is at issue here is the moral, or legal can or cannot, it would be the same as if I said: therefore I do not owe the selling of a righteous judgment, because I owe it; and therefore I owe the illicit, or it is licit, because I do not owe it.

Another reason for this disparity I brought forward tom. praecedente disp. 17. de conscient. quaest. 10. ad proposit. 26. because, namely, the Judge's service is sufficiently compensated by a public stipend, wherefore he cannot demand payment twice for the same thing; nevertheless I did not exempt the one judging unjustly from the burden of restitution, nor yet did I judge that anything must be restored to the prior lord; since Justice has been violated equally by both, whence the one is unworthy to receive it, the other to retain it; but I brought forward that the whole must be spent on the poor, and other pious uses, with the entire class of Theologians and Jurists; whence the force of the second reason is enervated, which contends that the judge can retain whatever he received for an unjust sentence.

INDEED, under the title of a donation, not of a fee, that which is given spontaneously for any base action whatsoever can by natural law be accepted, not as on a principal cause, but on a certain condition. So Navarrus, cap. 17. Valencia, loco citato. Except, however, the donations of a soldier, made to a prostitute, Leg. Affectionis, ff. de donat. Et Leg. Miles ita, §. Miles, ff. de test. Militari.

IT happens not infrequently that wood is cut from the Community's Forests, and animals graze in its meadows.

IT IS ANSWERED that he is held to restitution of what he takes immoderately beyond what is licit to anyone as a member of the community. So Valencia quaest. 6. punct. 5. Except, if he is as it were in extreme need; for then he can even take what is necessary from the Forests of anyone whatsoever, as Sotus teaches lib. 4. de Iust. quaest. 6. art. 4. Medina quaest. 12. de restit. Valencia loc. cit. Tannerus num. 348. Molina Tom. 1. tract. 2. disp. 58. Salon. quaest. 62. art. 3. controu. 2.

I ASSERT first, that restitution of Arithmetic equality is owed from Commutative Justice. So D. Thom. art. 3. and commonly. It is clear from the nature of Commutative Justice, as Tannerus notes disput. 4. quaest. 6. dubio 14.

BUT this equality must be computed not only according to the present goods that have been taken away, but also according to those which existed in potentiality after the expenses were reckoned, such as the trampling of the seeds of a field; or the taking away of a merchant's horse, by which he earned his living at the Fairs. See Valentia quaest. 6. puncto 6. Caietanum V. Restitutio. Navar. manual. cap. 17. num. 27.

BUT restitution can further be imposed from Vindictive Justice. So D. Thom. art. 3. and commonly all others with D. Bonavent. in the places to be cited.

THUS in Exodi 22. it was enacted that he who had stolen an Ox or a Sheep, and killed or sold it, should restore five Oxen for one Ox and four Sheep for one sheep. To this David alluded, Reg. 2. cap. 12: He shall restore the sheep fourfold, and Zachaeus, Lucae 19: If I have defrauded anyone of anything, I restore fourfold, as the holy Doctor observes on this passage, noting that this was not necessary for Commutative Justice, as is clear; nor for Vindictive Justice, which is not to be fulfilled except after the sentence of the Judge, as the cited Doctors commonly teach, Tract. de Legibus, disput. 5. quaest. 7. et seq. Hence he concludes that it was rather an act of liberality.

AND in Diaetastit. 2. cap. 4. he admonishes that restitution is like a Phlebotomy, that is, an evacuation of blood, which is necessary for certain infirmities, because: Sin is not remitted unless what was taken away is restored, from D. Augustino epist. 54. and the example of Zachaeus adduced there. This Phlebotomy Zachaeus was performing when he said: If I have defrauded anyone of anything, I restore fourfold; but would that Usurers would repay only the principal in like manner.

MOREOVER Caspensis notes, disp. 1. sect. 11. that the quantity of the thing intended in restitution must be considered in the better state in which the owner would have used it; so that if you have wheat in the month of August and you withhold it until the month of May, at which time its owner would have sold it more dearly, you are bound to restore the greater price, because the thing always remained under the right of its owner, who would have used that wheat at a more profitable time. But if it is uncertain at what time he would have sold it (says Caspensis), the middle price must be restored. Likewise, if the thing unjustly suffers damage in the hands of the one retaining it, the loss will have to be restored, which was not receivable in the hands of the owner.

IT IS the common and certain opinion of all that he who unjustly detains a thing against the owner's will is under a continual actual obligation of restitution. So D. Bonavent. in speculo, cap. 8. in calce D. Thom. art. 8. Caietanus ibid, Sotus lib. 4. de Iust. quaest. 7. art. 4. Valentia quaest. 6. puncto 7. and the rest. But things acquired by contract do not oblige to restitution except at the appointed time, as the holy Doctor observes, whom all follow. See Tannerum disput. 4. quaest. 6. disp. 14. num. 44.

ALTHOUGH matters stand thus, nevertheless D. Bonavent. above, D. Thom. and others acknowledge certain causes which excuse from restitution, either always, or at least for a time, as long as they last.

Now these causes either hold on the side of the debtor, or on the side of the creditor, or on the side of the thing itself, or by reason of public authority.

On the side of the debtor, the first excusing cause is probable ignorance; yet not crass ignorance; whether it be of law or of fact, Caietanus verbo Restitutio, cap. 6. Nauar. in manuali, cap. 17. num. 82. Valentia loco cit. adduce it as excusing. But if it is crass or supine, it does not excuse. Such would be that of one buying a silver chalice from a soldier. See Fagundez Lib. 7. cap. 25.

Titius explained to his confessor that he had gained a large sum of money by pretending to be skilled in horse races and, by written letters, giving advice for five shillings to all who sought it and wished to indulge in betting concerning the horse which would be victorious in coming races. He added that, on a certain occasion, he had by chance predicted the truth, whence reputation and profit had increased for him, and that he now knew entirely nothing of who had consulted him and paid money to him. But the confessor, since it is not established whether by natural or positive law debtors from a delict are bound to make restitution to uncertain owners, thinking that he certainly was not bound by positive English law, excused him from making restitution. Hence it is asked:

1. What are the roots of restitution?

2. To whom must restitution be made? Does ecclesiastical law establish anything concerning this matter?

3. In what matter are ecclesiastical law and civil law respectively competent?

4. What is to be said of the case?

1. What are the roots of restitution?

The roots of restitution are the causes which impose the obligation of making restitution, and they may be reduced to the possession of what belongs to another, and the doing of unjust damage to another.¹

1 Manual of Moral Theology, vol. i, p. 399.

2. To whom must restitution be made? Does ecclesiastical law lay down anything on this head?

In general, restitution must be made to those who suffered the injury. If these are unknown, ecclesiastical law lays down that at any rate, in the case of usury and simony, restitution should be made to the poor or to pious causes. More probably this is a determination of the natural law by the Church.¹

1 Manual of Moral Theology, vol. i, p. 424.

3. In what matter is ecclesiastical and civil law respectively competent ?

This question is answered by Leo XIII in his Constitution Immortale Dei, Nov. 1, 1885: "Whatever therefore in things human is of a sacred character, whatever belongs either of its own nature or by reason of the end to which it is referred to the salvation of souls, or to the worship of God, is subject to the power and judgment of the Church. Whatever is to be ranged under the civil and political order is rightly subject to the civil authority."

4. The case. On the supposition that Titius got the money by fraudulently holding himself out as an expert in horses that were likely to win races, he had no right to keep the money, and was bound to make restitution to charitable or religious purposes, as the real owners were unknown. However, in practice, tipsters are guided, if not by their own knowledge of the chances, at any rate by the course of betting published in the papers, and other probable indications of the chances of success. Moreover, those who consult them know that certain information can not be had from the nature of the case. They consult a tipster because they are not able to make up their own minds as to the placing of their bet. He helps them to make up their minds, and payment is made for that as much as for anything else. Titius should be told to seek a livelihood in some other way, but as far as the past is concerned it would seem, in general, that such as he may be excused from making restitution on the grounds that have just been indicated. So that the confessor’s decision was not practically wrong, though he rested it on wrong grounds.

Caius was assistant priest to Titius, another priest who was parish priest and who asked his counsel about his obligations in these circumstances. Six years ago, compelled by necessity, Titius borrowed one hundred pounds from Patrick, at that time indeed a most friendly man, but recently made a most hostile enemy. Patrick gravely and rather often calumniated Titius, so that among the faithful and fellow citizens his reputation suffered grave damage, which, as he sincerely estimates, would not be compensated by a sum of one hundred pounds. Therefore it is in his mind to retain for himself £100 as some compensation for his reputation unjustly injured, since he knows well that Patrick will invoke the civil law in vain in order to recover the debt. Hence it is asked:

1. What is restitution, and whence does the obligation of restoring arise?

2. Given the impossibility of restoring in goods of the same order, is there an obligation of restoring in goods of a different order?

3. What is the effect of our laws—the Statutes of Limitation?

4. What is to be said of the case?

1. What is restitution and whence arises the obligation of making restitution ? Restitution is reparation for an injury that has been done to another. Such reparation is required by the very nature of the virtue of justice, which prescribes that each should have his own, and consequently that, when one has been deprived of what belongs to him, the same thing, or its equivalent, shall be restored to him.¹

1 Manual of Moral Theology, vol. i, p. 398.

2. When it is impossible to make restitution in goods of the same species, is there an obligation to make it in goods of another species?

This is a disputed point among theologians, but according to St. Alphonsus (III, no. 627) the more common and more probable opinion denies any such obligation.

3. What is the effect of our Statutes of Limitation ?

This question is answered above, p. 261.

4. The case. If Titius is certain that he has suffered loss in money to the extent of £100 on account of the calumnies of Patrick, he may keep the £100 which he borrowed from him. If his reputation alone has suffered, he should not in practice constitute himself his own judge in his own case, as he would do if he kept the money as compensation for Patrick's calumnies. He has, indeed, a probable opinion in his favor, but he should not appropriate to himself what belongs to another on the strength of a merely probable opinion. The Statutes of Limitation bar Patrick's remedy, it is true, but do not extinguish the debt. Titius then should pay back the £100, and if that does not bring about a reconciliation, he may threaten Patrick with an action for slander, unless he desists from his calumnies.

Titius, burdened with an enormous debt, spoke of his most wretched condition with Caius, his friend and creditor, and received from him the advice that he should surrender his goods as soon as possible, lest the condition of the creditors become worse. At the same time, however, Caius asked him to repay to him before the surrender what he had borrowed from him. Titius did this and a little afterward became bankrupt. Moreover, by this surrender the remaining creditors received scarcely a third part of what was theirs. Conscious of this, and having suffered anxieties of conscience on that account, Caius approached a theologian who was his friend in order to lay them aside, and disclosed to him that he had in fact received from Titius what was his in full, to the prejudice of the other creditors, but with these special circumstances: namely, that the other creditors had lent this man money at interest, whereas he himself had lent it gratuitously out of charity; that they were very rich, whereas he himself was poor in comparison with them; and, besides, that he was the first who had sought restitution. Hence it is asked:

1. In what order is restitution to be made?

2. Does a surrender of goods excuse from complete restitution, and under what conditions?

3. What is to be said of the case?

1. In what order must restitution be made?

If the debtor is solvent, the order of paying his debts is immaterial. If he is not solvent, he will be adjudged a bankrupt, and his property will be distributed ratably among his creditors, with the exception of some, to whom the law gives preference. English law gives such a preference to rates and taxes, and to certain salaries and wages.¹

1 Manual of Moral Theology, vol. i, p. 429.

2. Does bankruptcy excuse from full payment of one’s debts, and on what conditions?

The answer to this question will depend upon the law of the country. According to English law, a bankrupt who has conformed in all things to the law, and has paid at least ten shillings in the pound of his debts, may be granted an absolute discharge, the effect of which is to make him a clear man again. Large discretion is given to the judge to defer, or to grant on condition, or to grant absolutely, a bankrupt’s discharge.²

2 Stephen, Commentaries on the Laws of England, vol. ii, p. 260. Manual of Moral Theology, vol. i, p. 451.

3. The case. We have to do with Caius primarily. The payment of his debt in full, when it was morally certain that Titius was insolvent, would in all probability be regarded in English law as a fraudulent preference, and if it came to the knowledge of the official receiver or trustee in bankruptcy, the money would have to be refunded. However, no moral fault would seem to attach to Caius. His debt was due, as we suppose; he had a right to ask for payment, and having got it, he may keep it, unless compelled by law to refund it. Titius was not justified in paying Caius in full under the circumstances, according to strict law. He paid not to avoid pressure, but in order that a friend might not suffer from his bankruptcy. In the eyes of the law, he would, in all probability, be held guilty of fraudulent preference, and this would prevent him getting his discharge.³

3 Manual of Moral Theology, vol. i, p. 434.

Julius lent his friend Caius, a merchant, one thousand pounds sterling; but when the business did not prosper, Caius was compelled to surrender his goods. A few days before he directed a petition to the court, Caius, on account of their old friendship, as he said, handed the thousand pounds in full to the grateful Julius. Afterward, however, his goods, distributed among the other creditors, scarcely equaled half of the sum owed to each. Hence Julius, a very good Catholic, moved by scruples, approached a confessor, who, when he had heard everything, compelled Julius, as a cooperator with Caius in the unjust damaging of the other creditors, to make restitution to them. Hence it is asked:

1. What are the roots of restitution?

2. When a debtor is not solvent, to what is he bound, whether by natural law or by municipal law?

3. Can a confessor, relying upon a probable or even a more probable opinion, impose the obligation of restitution upon a penitent?

4. What is to be said of the case?

1. This question is answered above, p. 270.

2. When a debtor is not solvent, what is he bound to do by natural or municipal law?

As soon as a debtor recognizes that he can not pay his debts in full, and that there is no reasonable probability of his being able to do so, he is bound to take steps to enter into a composition with his creditors, or to have himself declared bankrupt. If he goes on to contract new debts after recognizing that he is hopelessly insolvent, he does an injury to his creditors and renders himself liable to have his discharge suspended, if not altogether refused.

Julian owes his friend Xavier for the last ten years the amount of forty dollars, as a share from the proceeds of a successful speculation in which both had joined. He had lost all trace of his friend before the profit was realized, and as he has now no reasonable prospect of ever ascertaining Xavier’s whereabouts, he hands the amount to his confessor with the request to employ it for charitable purposes. The priest takes the amount and gives of it (without the knowledge of Julian or any one else) fifteen dollars to a needy brother of his, and the other twenty-five dollars to his parents, who, although not in want, still on account of advanced age require special care, and on that account are in need of support. This support the priest otherwise provides out of his own income; upon this occasion, however, he employs these twenty-five dollars for the same purpose parcendo suis rebus. The questions are: 1. May Julian devote the forty dollars for charitable purposes; and 2. may his confessor employ the money in the way stated above?

Answer to the first question: That Julian could apply the money in this way is the opinion of Sayrus, who writes: When the owner is unknown (this was Xavier in the sense of the following words) and it is not known where he lives, ... the property is to be given to the poor when it is probable that the owner will not appear. (Clavis regia lib. 10. tract. 5. cap. 2. n. 24.) That he even did more than was required appears from Friedhoff’s opinion that: If the possessor is unknown, or though known, is directly or indirectly beyond reach, and the holder is a possessor in good conscience, he may (in the opinion of Sayrus and of others etiam si dives esset) retain the matter as his property; if a possessor in bad conscience he must make restitution for charitable purpose. (Special Moral Theology, § 138 n. 4; comp. also Sayrus I. c. n. 28 and 21.)

Answer to the second question: If the priest was well-to-do, or perhaps even wealthy, it was not praiseworthy for him to prefer his own relations to other persons in needy circumstances just to save his own money. If he, however, was not blessed with any considerable superfluity, then I do not see (unless scandal was given) why it should be improper for him to prefer his brother and parents, as long as they were needy: it must be noted that relatives also are included under the name of the poor if they are truly so needy that they cannot live according to the condition of their state. (Liguori, Homo Apostol tract. 13. n. 48.) If the priest was convinced of the need of these relatives, he cannot be obliged to make restitution, even if he be wealthy. If in doubt about their need, he should have sought the advice of his confessor, or of other proper authority. Agreeing with this view, and in further discussion of this subject, Sayrus writes: If his necessity and poverty are certain, he may bestow those goods upon himself or upon his relatives as truly poor persons, provided he does so without fraud or deceit. Because, since the law expressly states that they must be given to the poor, but not to these or those poor persons, he can consequently restore them to himself without anyone’s counsel. And this is confirmed: because if someone else were obliged to restore them, it would be a pious act to give them to this man who now retains them; therefore he himself will be able to retain them for himself. But when the necessity is not so certain, lest someone permit himself to be deceived by his own affection and judgment in his own cause, the aforesaid authors admonish (here are eleven of them enumerated, at their head Sts. Thomas and Cajetan) that he not retain them for himself or distribute them to his friends and parents without the authority of the parish priest or a prudent confessor, especially if the amount is large (in our case the same is not large).

But once he has distributed it to himself or to his blood relatives with the aforesaid authority and counsel, he is no longer bound to restitution, even if afterward he comes into more abundant fortune. (Ubi supra n. 21, cfr. etiam Aertnys, Theol. moral. I. lib. 3. tract. 7. n. 266.)

What is to be done if, after the money has thus been disposed of, Xavier should unexpectedly reappear, or in some way become accessible? St. Alphonsus instructs us in this matter in the following words: When, all the circumstances having been considered, it is no longer possible—that is, is no longer judged possible, as in our case—that the owner be found, then the poor person acquires absolute ownership of the property without any burden of restitution if the owner should afterward happen to appear. (Tom. 3. n. 590.)

BERNARD Deppe.

Casuistry is a word with a rather bad connotation in the English language. Its secondary meaning, according to the Century Dictionary, is “ over-subtle and dishonest reasoning.” I am not concerned to deny that there may be good historical grounds for something of the evil reputation which the word possesses. It is apt to be associated in men’s minds with the tortuous reasonings of the Scribes and Pharisees, with their exaggerations of lighter duties and their explaining away of the weightier matters of the law. Their desire to make the yoke of the moral law in certain places more easy for men’s shoulders may also have had its parallel among some Catholic theologians; not every Catholic theologian catches or represents the mind of the Church.

Still, casuistry should not suffer for the sins and errors of some of those who have cultivated the science of conduct. Not all who profess themselves mathematicians or physicists write wisely about those branches of knowledge, and yet mathematics and physics are not held responsible for their vagaries. Neither should the great and useful science of casuistry suffer because some casuists have by their labors endangered the supremacy of the great moral law.

It is difficult to see how any one who admits that there are moral laws or rules of conduct, can reasonably refuse to admit a science of casuistry. Anarchy and confusion would quickly prevail in a country where the interpretation of the laws was left to the judgment or caprice of private citizens. Well-trained and practised intellects are required if law is to be applied with justice, equity, and consistency to particular cases. And so, too, in morals, or the science of right and wrong, the ordinary Christian cannot be expected to apply correctly the rules of Christian conduct to all cases as they arise. He may be able to see, without much difficulty, what the noble, self-sacrificing line of conduct would prescribe in any given case; but that may not be what he is prepared to do. It would doubtless be best if we all on all occasions followed the counsels of perfection, but there is no obligation of so doing, and while human nature remains what it is, there is no likelihood of the attempt being generally made. And so the question constantly arises in daily life— What am I bound to do under these circumstances? What must I do to avoid moral guilt?

Such questions are frequently of great difficulty and intricacy, as every one will acknowledge. The judgment of the expert is not less required to solve them, than it is required to solve the nice points of the civil law. This, then, is what the Catholic moral theologian proposes to himself to do. He tries, by taking the Gospel and the Church as his guides, to draw the line between what is lawful and what is unlawful. He does not take upon himself the office of the preacher, and recommend all to follow the decisions he gives. This he no more thinks of doing than does the judge while sitting in his Court. It is not for him to raise as much as possible the standard of Christian conduct, or to make people better than he found them. He is content with the humbler task of laying down what is forbidden and what is not forbidden, and leaving to others the nobler office of tracing the deeds that are becoming to the generous and the self-sacrificing.

Much of the abuse which has been heaped on Catholic and especially on Jesuit casuistry originated from not considering this scope which moral theologians proposed to themselves, and the point of view from which they regarded questions of morality. Most of the great writers on moral theology have been men of saintly lives, who never dreamed of being content in their own conduct with attaining the standard of morality which they kept before their minds in their writings. There they laid down the principles of right and wrong, discussed real or imaginary cases with all conceivable manner of circumstances in order to illustrate those principles, but they never dreamed of limiting their personal aspirations to the mere avoidance of evil. They well knew that we must aim high to attain even a passable mediocrity in conduct, and in many cases they were men who were not content to aim high, they aspired to and attained a great measure of Christian perfection. As in their own lives, so in their training of others, they did not propose the moral standard of their works on casuistry as the ideal of the Christian life. It was the least that was required, it was the line below which no one who wished to save his soul might sink, though he might rise indefinitely above it, according to the gifts which he had received from God.

And let no one say that such work as the moral theologians of the Catholic Church have set themselves to do is useless or unnecessary. It has always had the encouragement of the Church, though some of the sectaries who broke from her at the time of the Reformation affected to despise and repudiate it. They professed to take as their guide the spirit of the Gospel as interpreted by the individual conscience, and they professed to look down upon the ecclesiastico-legal view of morality as one of the errors of Rome. However, the whirligig of time in this as in so many other departments seems to be proving that the action of the Catholic Church was and is right after all. Good and able men among the non-Catholic religious bodies are realizing the necessity of a sound casuistry as a guide of Christian conduct. Thus in the January number of the Hibbert Journal, in an interesting symposium on the “ Alleged Indifference of Laymen to Religion,” Sir Edward Russell, the well-known editor of the Liverpool Daily Post, writes: —

Is there any obvious disconnection, more conspicuous among Christian than among members of other faiths, between their religion and their practically unavoidable daily lives? The reply is twofold: Firstly, this ought not to be. . . . But, on the other hand, secondly, an uncomfortable, illogical, unintelligent state of conscience is maintained by the growing up of, and acquiescence in, customs of business, practices of speculation, usages when in distant countries, and non-moral rules of peace and war and acquisition—to instance a few examples. Efforts should be made by Christian authorities to formulate and apply ethical Christian dicta in such matters. This would need to be done with great care, and with specially cultivated sound casuistry. But it ought to be done, because ‘‘whatsoever is not of faith is sin,’’ and laymen know they cannot serve two masters. (P. 246.)

This is well put, and justifies in a few words what Catholic moral theologians are constantly striving to perform according to the constantly changing wants of the Catholic clergy and people.

Very little experience within or outside the confessional soon convinces the Catholic priest of the practical necessity of a competent knowledge of casuistry. It is not sufficient for practical purposes to know the general theory of Christian morals. The judgment must have been trained by exercise, so as to be able to apply with accuracy the general doctrines to particular questions as they arise.

Some years ago a friend I had known at college called on me. He held a responsible position in one of the great Manchester places of business. In course of conversation he asked me what I was doing. “ Trying to teach the moral theology of the Catholic Church,” I modestly answered. “Oh!” he replied, “I am often puzzled by questions which I suppose you have to treat of in your official capacity; ” and straightway he proposed a few. The questions were practical cases of conscience arising out of modern business relations, and it may be of interest if I put down here the result of thought and reading bestowed on them and other similar questions. I will deal in this paper with some difficulties arising out of the law of bankruptcy.

John was a younger member of a family that had always tried to cut a figure in the world. The members of the family had been accustomed to live up to the very limit of their means, and John, who was a dashing and handsome young man, after marrying a wife of similar disposition to his own, set up an establishment for himself. John and his wife soon found that it was impossible to make ends meet with their limited resources, and in the space of a very few years they had been adjudicated bankrupt no less than three times. The worthy couple did not trouble themselves much about the matter; the only inconvenience to their mind lay in the fact that they found it more and more difficult to obtain credit. Even this difficulty, however, was to a considerable extent overcome by judicious changes of residence; they found that people who knew them only imperfectly were very confiding in the matter of loans to such an engaging and well-connected couple, and so they had a tolerably merry time of it; in short, they made bankruptcy pay.

It is obvious that John and his wife had been living largely at the expense of their too confiding creditors ; they had been doing wrong in contracting debts which experience taught them there was little probability of their being able to pay, and if they want to lead honest lives they must lower their style of living and try to balance expenditure with income.

A difficulty may arise about the time of declaring one’s self unable to pay one’s debts. It is sometimes possible by borrowing again and by other means to avert threatened bankruptcy for a time at least. Is it lawful to have recourse to such means?

The answer to be given to this question will depend upon circumstances. If there is any reasonable probability of being able to meet the new obligation at the proper time, there need be no scruple about contracting it, and saving one’s self from bankruptcy. If, however, there is no reasonable probability of being able to do this, it becomes a fraudulent contract,— the debtor undertakes to do what he knows he will not be able to fulfil, and so he sins against justice. As to what constitutes a reasonable probability is a question which depends upon the circumstances, and it must be settled by the debtor himself, after taking the advice of his friends, if he cannot make up his own conscience on the point.

Thomas was a man of about sixty years of age, and for some time he had not been able to give that attention to his business which was required if he was to succeed. In spite of all his efforts he sank deeper into debt, failed to meet his obligations as they became due, and was adjudicated a bankrupt. He was afraid that he would be left destitute, so he kept back $500 for his private use, but surrendered all his other property to his creditors. He swore that he had made a full and true statement of his affairs, though he made no mention of the $500.

Thomas did wrong in keeping back and rendering no account of the $500, and he committed perjury by swearing that he had given a true account of his affairs. The law makes provision for the necessary support of the bankrupt, and so there was no solid ground for Thomas’ fear that he would be left destitute, and consequently no good ground for failing to account for the $500.

However, if the law made no provision for the necessary and immediate wants of the bankrupt, and if he had no prospect of being able to earn enough for his decent support and that of such as were dependent on him, so that the only prospect before him was to starve or to go to the workhouse, natural equity would then redress the too great rigor of the law, and permit the bankrupt to keep what was necessary for decent support. An unfortunate debtor cannot be justly compelled to reduce himself to destitution in order to satisfy the claims of his creditors, and the laws of modern civilized nations do not attempt to impose such an obligation.

The laws of bankruptcy in modern English-speaking countries are just and humane, and they confer a great benefit on the bankrupt by juridically relieving him of an insupportable burden of debt. They are, it is true, in some instances exacting with regard to the conditions on which the benefit is granted, but that is no more than the public good requires; grave abuses, as we know from the history of legislation in this matter, would inevitably result from a lax law of bankruptcy. It is only right then that stringent conditions should accompany the granting of relief to the bankrupt; the State has a right to impose them, and the subject is bound in conscience to observe them, especially if he is required to affirm on oath that he has done so. The confessor then should urge a penitent, who has had the misfortune to be brought into the Bankruptcy Court, to act in a straightforward way according to the laws of his country, and then he may with a safe conscience take advantage of what the law allows to the unfortunate bankrupt.

George had invested large sums of money in house property. He had borrowed a considerable portion of the purchase money under a well-grounded belief that the property would rise in value and enable him to reap a profit from his bargain. What was his dismay when, instead of rising, it steadily fell; he could not realize any portion of it, and he saw no prospect of being able to pay his debts as they became due. In his straits he went to his brother, who was one of his principal creditors and asked his advice. His brother advised him to make a declaration of inability to meet his obligations, and that as soon as possible. George promised to do so, volunteering to pay his brother in full beforehand, so that so much money at any rate should remain in the family, as he said. The brother agreed and took full payment for what was owing to him, although the other creditors had to be satisfied with fifty cents on the dollar.

George committed an act of injustice by paying his brother’s debt in full, while he knew that his other creditors would have to be satisfied with less than what was due to them. He knew that his property was not sufficient to pay all his creditors in full; they had equal right to receive their due proportion of payment; he defrauded his other creditors of their due proportion when he gave more than his share to his brother, so as to keep the money in the family.

Such transactions are against natural justice, they tend to defeat the chief end of bankruptcy laws, which is to secure an equitable distribution of the property of the debtor among his creditors, and they are rightly forbidden by positive law. In England as well as in the United States such preferences are declared null and void, or at least voidable, if made within the period fixed by the law of the country. In the United States the period fixed is four months previous to the filing of the petition, in England three months. If it were discovered that such a fraudulent preference had been given to one of the creditors, the official receiver or the trustee in bankruptcy could claim the money and add it to the assets to be distributed among the creditors according to law.

A doubt might arise as to whether a bankrupt would be justified in conscience in paying a creditor in full on account of his poverty or for some such extrinsic reason. Some theologians hold that, apart from any bankruptcy law, a debtor who could not pay all his debts might for such a reason prefer one creditor to another. However, it would seem to be unlawful to do this when one contemplates bankruptcy. The law allows of no such distinction, and if the bankrupt is to take advantage of the law for his relief, it is imperative, even from the point of view of conscience, that he should conform to the requirements and conditions which the law lays down. The law is his title to relief, and the law grants relief on certain conditions; those conditions then must be loyally observed by the debtor.

There is another question of some nicety connected with fraudulent preferences. The bankrupt does wrong in giving such a preference, as we have seen. Is a creditor who receives a fraudulent preference justified in keeping the money, or is he bound to make restitution?

There is some slight difference between the law of the United States and that of England with regard to fraudulent preferences, but we may here abstract from them, and consider the question from the purely moral point of view.

Such a creditor will of course be bound to make restitution, if the matter comes to the knowledge of the Court, and he is ordered to do so. Whether he is bound in conscience independently of such an order to make restitution is not free from doubt. He has after all only received what he had a right to, according to the terms of his contract with the debtor. The debtor did an injustice to his other creditors in paying this one in full; but the preferred creditor has no contract with the other creditors of the debtor; he is not bound like the debtor to safeguard their rights and satisfy their claims as far as possible; if he has no such obligation, and only receives what is due to him from his own contract, he does not seem to violate justice by taking payment of his debt in full, and so he is not bound to make restitution. I am confirmed in this opinion by what Mr. Brandenburg writes in his authoritative work on Bankruptcy: —“ There is involved,” he says, “no element of moral or actual fraud. It is simply a constructive fraud established by law upon the existence of certain facts and prohibited by it. There is nothing dishonest or illegal in a creditor obtaining payment of a debt due him from a failing debtor; nor in his attempting by proper and ordinary effort to secure an honest debt, though such act may afterwards become a constructive fraud by reason of the filing of a petition and adjudication in bankruptcy.”¹

¹ B. G. Brandenburg, The Law of Bankruptcy, 3d ed., p. 699 (1908).

And again: “While such a transfer is fraudulent and voidable, it is not so because morally wrong, but because the act says it is.” (P. 604.)

Against this view it may be urged with some plausibility that as the property of the bankrupt was not sufficient to pay all his creditors in full, no single creditor had a right to receive more than his just share, so that the preferred creditor sinned against justice by taking more than his share. To this, however, it may be answered that the argument holds when the property has been divided into portions, and assigned to satisfy the claims of the several creditors; but that it does not hold while the property is still undivided. When it is divided, each creditor has a right to his share, and injustice would be committed if he did not obtain his fair share; but while it remains, so to say, in bulk, all that can be said is that each creditor has a somewhat undetermined claim against the whole of the property. When therefore one creditor has received payment in full, it is not clear that he is bound in conscience, before any decision of the Court, to surrender a part for the benefit of the other creditors.

Another question of importance is whether a bankrupt who has obtained his discharge after paying his debts in part only, is bound in conscience to pay in full if he subsequently becomes able to do so.

The question does not arise when the creditors in consideration of the part payment which they have received expressly release the debtor from all further obligations, as, of course, they are competent to do. It is clear, too, that the natural obligation to pay one’s debts in full remains in spite of bankruptcy, unless it is extinguished by competent authority. Moreover, the obligation will certainly remain, if the law of the country expressly so decides, as did the Roman Law, which the scholastic theologians generally had in view when they discussed this question. Most modern European codes contain similar provisions. However, it seems equally certain that the law of the country can extinguish the obligation of making further payments, if it pleases to do so in favor of an honest bankrupt. We say “in favor of an honest bankrupt,” because the law does not intend to favor a dishonest bankrupt, nor has it the power to free such a one from his obligations. For the law cannot favor and promote injustice, as would be the case if it released a dishonest debtor from the obligation of paying his debts. The law can, however, for the public good release the honest bankrupt; for with just cause it can transfer property from one to another owner. This it certainly does by the law of prescription, and in other cases. In a commercial community there will not be wanting good reasons for such an exercise of power, for a load of debt pressing on the shoulders of the poor debtor kills enterprise, and injuriously affects trade. The common understanding with which debts are contracted will gradually accommodate itself to such a law, and thus by virtue of the implicit consent of the creditor, the legal discharge of the bankrupt debtor will be absolute and final, if the law so make it.

The whole question then is reduced to one of fact — What is the law of the country on the point, and what is its effect? With regard to the United States theologians have commonly held that a discharge in bankruptcy does not free the debtor in conscience from liability to pay his debts in full, if he subsequently become able to do so. However, several theologians of note thought the contrary a probable opinion.² Great weight should obviously be given in such a matter to the opinion of lawyers of repute; they are most likely to know the effect of the law. Mr. Brandenburg, in the work quoted above, expressly lays it down that the United States Bankruptcy Law does not free the conscience. “Since the discharge,” he writes, “is personal to the bankrupt he may waive it and, since it does not destroy the debt but merely releases him from liability — that is, removes the legal obligation to pay the debt, leaving the moral obligation unaffected — such moral obligation is a sufficient consideration to support a new promise,” etc. (P. 257.)

² Marc, n. 1022; Kenrick, II., n. 207.

In England on the contrary both theologians and lawyers commonly hold that the law of the land frees the debtor in conscience, if the discharge be absolute and unconditional. Otherwise, of course, the obligation will remain.

The same solutions would seem to hold, when after having made a composition with one’s creditors, the same question arises with regard to future acquired property. The law of the United States as well as that of England regulates such compositions, and decides that when confirmed they shall have the effect of a discharge. So that in the United States one who cannot pay his creditors in full, must make up the deficiency afterwards if he can, whether he makes a composition with his creditors or goes into the Bankruptcy Court; in England, if he has acted honestly and obtained an absolute and unconditional discharge, there will be no obligation to make good any deficiency, though the conduct of a bankrupt who should volunteer to do so would be highly approved by his creditors.

3 Crolly, III., n. 1232; Stephen, II., p. 188.