Manner of Making Restitution

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.

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.

708. • Generally it can be said that it is required and suffices that restitution be made in that manner by which violated justice is fully repaired, or repaired to equality, and thus the injured owner is made unharmed.

Hence 1. it is not necessary of itself that restitution be made openly; indeed often it cannot be made in that way, when provision must also be made for the reputation and honor of the one restoring.

2. It is not necessary that restitution be made by the debtor himself, but it can be made through another, provided the thing is returned to the owner. Sometimes it can be made through the Confessor; yet great caution is then needed, both so that the seal of confession remains unharmed, and so that the penitent knows that satisfaction was in fact made to the creditor, lest any suspicion against the probity of the Confessor be able to arise.

3. It is not necessary that restitution be made with the owner adverting to it, because this is not required in order that he be unharmed. Hence the debtor can restore, for example, by increasing the weight or measure in selling, or the owed work in laboring, and in six hundred other ways.

709. Questions. - Q. 1. Whether restitution made through a simulated donation is valid?

Resp. Affirmatively, at least more probably. The reason is that for payment it is not required that the debtor externally admit 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 sentence. - Vogler, n. 534. - Carrière, n. 1265, etc., against Billuart.

Q. 2. Whether, if the creditor, moved by gratitude, pays back another gift to him, this must be restored to him?

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

Q. 3. In what place and at whose expense must restitution be made?

Resp. 1. If the obligation of restoring is from a thing accepted and retained in good faith, restitution must not necessarily be made in another place than that in which the thing now exists; nor is a debtor of this kind held to transmit the thing to another place where perhaps the owner now lives. The reason is that he is not held to restore the owner to the pristine state from which he did not cast him down by formal injury.

Resp. 2. If the obligation of restoring arose 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, and this at the debtor's expense. The reason is that the creditor must be kept unharmed and suffer no damage from the iniquity of the debtor, but be restored to the pristine state. - St. Lig., n. 677.

Resp. 3. If the thing must be paid from contract, one must stand by the clauses appended to the contract, if there was agreement concerning the place and manner of transmission. But when no agreement concerning these has been made, attention must be given to the special laws according to the diversity of contracts.

710. • Q. 4. Whether a debtor from delict must also pay expenses for the thing to be sent back to the owner, if those expenses exceed the value of the thing itself?

Resp. 1. Affirmatively, if the excess is not very notable, because the debtor, by committing the injustice, undertook such a burden in himself, and the owner is not held to suffer the loss of his thing. - Thus commonly. - Lugo, D. 20, n. 190.

Resp. 2. But more probably negatively, if those expenses were greatest with respect to the value of the thing to be sent back. Then, however, 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 demand that restitution be made to himself with expenses of any kind whatever. - Thus Vogler, n. 415. - Lugo, n. 185. - Billuart, diss. 8, art. 46. - St. Lig., n. 598, where he says that this is the very common sentence.

But how great the loss of the debtor ought to be so that he can be excused from restitution to the owner himself, the theologians do not agree. They hand down this rule rather commonly: When, with all things weighed, the damage which the debtor will suffer exceeds the damage of the creditor by only double, 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. But for various circumstances this rule must be modified. - Thus Lugo, D. 20, n. 190. - St. Lig., n. 598, etc. But today this controversy can scarcely have place on account of the ease of transferring things or money elsewhere.

711. Q. 5. Whether a debtor must restore again if he sent the debt through a faithful person, and it perishes by chance or the fault of a third party?

Resp. 1. A debtor from possession of good faith is held to nothing, because, fault and pact being excluded, the thing perishes for the owner, who is the creditor himself. Yet he would be held after the sentence of a judge if juridical fault had intervened.

Resp. 2. A debtor from contract is held to nothing if it is a matter of another's thing existing in nature, accepted in loan or deposit, etc., because the thing perishes for the owner, unless something else was agreed. Otherwise, if it is a matter of a thing owed in genus; because the debtor preserves dominion in it until it has reached the creditor, and he must answer for the chances of the price or the thing transmitted until it is delivered into the hands of the same.

Resp. 3. A debtor from delict is not freed from restitution, and remains bound to it for so long as he has not truly made the owner unharmed; because he always remains the culpable cause of the damage which this owner suffers. - St. Lig., n. 704, where nevertheless he does not dare to condemn those excusing a debtor of this kind who sent back the owed thing through a Confessor.

Except the threefold case in which the debtor is exempted from every burden, namely: 1. if the owner has designated the person through whom he wishes the thing owed to be sent to himself; 2. if the creditor indeed has not chosen the person, but has left to the debtor the freedom of choosing whom he wishes, provided one prudent and faithful is chosen; 3. if this person has been designated by the judgment of a judge.

712. • Q. 6. How must restitution be made for damages inflicted on the republic?

Resp. Restitution must 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 that restitution must be made through those placed over tributes, while others hold that satisfaction is made to the obligation of justice if restitution is made to the poor. - See Carrière, n. 1240, where he says that no legal mode exists in France by which restitutions of this kind are made. - See Casus, n. 707.

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.

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.

240. Principle. Generally it is required and suffices that restitution be made in that manner by which violated justice is repaired to equality.

This is clear from the notion of commutative justice and of restitution.

Corollaries. a) Restitution can be made secretly, without the owner noticing it, e.g., by secretly increasing the weight of merchandise.

b) It can be made under the appearance of a gift. If, however, the creditor, moved by this gift, should repay another gift to the debtor, care must be taken that by subsequent gifts or offerings the equality of violated justice is at length repaired. But when someone, forgetful of the debt, has gratuitously given something to the creditor, he can nevertheless reckon that gift toward satisfying his obligation of justice. Thus the more probable opinion. The reason is that in every liberal prestation each one is presumed to will first and preferably to satisfy obligations of justice. St. Alphonsus seems to favor this opinion, disputing at length about this question, although he calls the opposite opinion more common and very probable.¹¹⁵ Hence, in practice, restitution is not still to be urged if the entire debt has already been paid to the creditor by gratuitous gifts. Indeed, when the legitimate owner is unknown and restitution is therefore to be made to the poor, a great part of alms made after (but not before) the obligation of restoring was contracted can then be reckoned toward restitution.

How restitution is to be made to the treasury or to juridical societies was already said above in n. 230.

¹¹⁵ L. c. n. 700, q. 2.

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.

326. General principle. - Restitution is to be made in that mode by which violated justice is repaired to equality, that is, in a mode apt that the thing arrive into the hands of the owner or creditor: for then the end is attained, namely equality. Therefore no special mode is prescribed, but it can be done:

a) openly, or also secretly and with the owner unaware; unless, however, scandal given by the injury must be repaired, namely, if restitution is owed from a public delict, or in restitution of reputation publicly injured and therefore to be publicly repaired;

b) immediately by oneself, or mediately through another worthy of faith. To this office a confessor is sometimes chosen by the penitent, who can accept, provided he acts prudently lest the seal be injured or other inconveniences arise. To avoid this he will be able to restore through the mediation of another priest or to transmit money from another place; and also to render the penitent more certain or to obtain testimony concerning the restitution made, so that every suspicion may thus be avoided;

c) directly, under the very form of restitution, or indirectly under the species of labor spontaneously and gratuitously undertaken for the utility of the owner, or of thrift, or of a truly useful donation, in which case, however, the debtor should take care lest the creditor repay another gift of almost equal value.

327. Questions. - A. What if the owner to whom restitution has been made under the species of donation again himself repays a gift to the one restoring?

R. 1) If it is established that the restitution made was the sole motive cause of this donation, the gift cannot be kept, because there is no donation which is made from error concerning the chief motive of the donation;

2. if it is established or deservedly presumed that the owner would have conferred that gift even without that restitution, the gift can be kept, although that restitution moved him somewhat to the gift;

3. sometimes, even if the gift cannot per se be kept, the debtor is excused from restoring it, for example, if the thing given is of slight value or cannot be returned without offense to the giver; yet generally the value of the gift can be restored secretly.

R. If someone has an express and in every way complete will of donating, then by the donation the obligation of restoring is not extinguished; otherwise, as prevailing, the will of implicitly restoring can be considered, because he is judged to have willed to pay debts before lavishing gifts, whence he also probably would have had this will explicitly if he had been conscious of the obligation of restoring.

Whence, if restitution is to be made to the poor, a great part of the alms given can be considered as restitution, provided they were donated not before but after the obligation was contracted.

328. In what way must those things be restored which have been taken away from the State or municipality?

If a legal and sufficiently safe mode is prescribed, so that what is restored certainly reaches the public treasury, that mode is to be employed.

But if a legal mode is not prescribed, but is sufficiently safe, it can be employed.¹ Or it can be done directly in another way through official administrators or prefects of taxes, provided enough care is taken that they do not retain it for themselves, for example, by warning several.

¹ In Belgium a mode was indicated, although not prescribed, by the letters of the minister of the treasury, 10 Mar. 1837: "The payments (of voluntary restitutions) will be received at the registration offices... The receiver will deliver to the person who makes the payment a receipt in triplicate... One... will be preserved by the person who has made the payment. The other two will be transmitted by him, one to the ministry of finances, the second to the Director of registration."

It can also be done indirectly, by destroying titles of public debt issued by the State or municipality, or postal tickets, provided that they belong to the government; but not by destroying bank notes, because they are only protected by the State.

Some say that restitution can be made to those who have been unjustly injured in goods by the civil power, such as religious or Catholic schools; but that means is not expedient because it easily exposes one to illusion, and because such injustice ought to be altogether undoubted toward a determinate institute, nor ought the injustice to have been condoned.

Others say that it can be made to the poor, whom it belongs to public society to assist; but that does not seem probable, because society satisfies this obligation in other ways, nor does it belong to private persons to dispose of public goods by private authority. Whence this means could not be employed unless no other way lies open by which restitution can safely be able to reach the public treasury.

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.

I say. Generally it is required and it suffices that restitution be made in that manner by which violated justice is repaired fully or to equality. The reason is that the full reparation of justice is the principal end to be obtained in restitution.

You Will Resolve. - 1st. It is not necessary per se that restitution be made openly; indeed often it cannot be done in that manner, when provision must also be made for the reputation and honor of the one restoring.

2nd. It is not necessary that restitution be made by the debtor himself, but it can be done through another, provided that the thing is returned to the owner. Sometimes it can be done through the confessor; nevertheless great caution is then needed, both that the seal of confession remain uninjured and that the penitent learn that the creditor was in reality satisfied, lest any suspicion against the probity of the confessor be able to arise.

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

4th. Restitution can be made through a simulated donation, because that which is owed is the thing, and it is not required that the debtor externally confess that he is paying. But if the creditor, moved by gratitude, should recompense him with another gift, this would have to be restored, because that donation does not seem fully voluntary and spontaneous. - Cf. Carrière, n. 1265.

Question 1. In what place and at whose expense must restitution be made?

Resp. 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 a debtor of this sort held to send the thing into another place where perhaps the owner now lives. The reason is that he is not held to restore the owner into his former state, from which he did not cast him down by formal injury. But if the obligation of restoring arose 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, and this at the debtor's expense. The reason is that the creditor must be kept indemnified and suffer no damage from the iniquity of the debtor, but be restored into his former state. Cf. St. Alphonsus, n. 677.

Question 2. Whether a debtor from delict must also pay expenses for the thing to be sent to the owner, if those expenses exceed the value of the thing itself?

Resp. 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 held to suffer the loss of his own thing. But otherwise it must be said if those expenses were very great with respect to the value of the thing to be sent back. Then, however, 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 demand that restitution be made to him with any expenses whatsoever. But theologians do not agree how great the loss of the debtor must be, so that he can be excused from making restitution to the owner himself. They hand down this rule rather commonly: When, all things having been weighed, the damage which the debtor will suffer exceeds the damage of the creditor by only double, it is not sufficient that the owner be deprived of his own thing. But if it exceeds this proportion, it suffices that restitution at least be deferred. But according to various circumstances this rule must be modified. - Cf. St. Alphonsus, n. 598. - Lugo, disp. 20, nn. 185 and seq. - Vogler, n. 415.

Question 3. Whether the debtor must restore again, if he sent the debt through a faithful person and it perishes by chance or by the fault of a third party?

Resp. A debtor from possession in good faith is held to nothing; because, fault and pact being excluded, the thing perishes for the owner, who is the creditor himself. Nor is a debtor from contract held to anything, if it is a question of the thing of another existing in nature, accepted as a loan for use or deposit, etc., because the thing perishes for the owner, unless it has been agreed otherwise. It is otherwise if it is a question of a price to be paid, because the debtor preserves dominion over it until it reaches the creditor, and he must answer for the risks of the price transmitted until it is handed into the hands of the same creditor. Finally, a debtor from delict is not freed from restitution and remains bound to it so long as he has not made the owner truly indemnified, because he always remains the culpable cause of the damage which this man suffers. Nevertheless St. Alphonsus does not dare to condemn those excusing a debtor of this sort who sent the thing owed through a confessor.

Except the threefold case in which the debtor is freed from every burden, namely: 1st, if the owner designated the person through whom he wished the thing owed to be sent to himself; 2nd, if the creditor did not indeed choose the person, but left to the debtor the freedom of choosing whomever he wished, provided one prudent and faithful be chosen; 3rd, if this person was designated by the decision of the judge. Cf. St. Alphonsus, n. 705.

Question 4. In what manner must restitution be made for damages inflicted upon the Republic?

Resp. Restitution must be made through the means constituted by the Government itself, if such are had. Therefore attend to the various laws and customs of places. Among us two modes especially seem more apt. The first is that so great a quantity of paper money or of stamps be destroyed as is equivalent to the money or damaging. The other is that restitution be made to the public treasurer of the general Government or of the particular Government of each State, as the case requires, with the obligation that this be inscribed in some newspaper designated by the debtor himself.

Others also admit that satisfaction is made to the obligation, from the presumed will of the republic, by paying the sum owed to the poor, or to pious causes, or to those damaged by the state itself. - Cf. Bucceroni, n. 1454.

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.

[In general it is required and suffices that restitution be made in such a way that the violated justice is fully repaired, or restored to equality. This follows from the notion of restitution, which, as has been said, is the giving back of a thing received, or the compensation for damage inflicted. Therefore, in whatever way the injured party is restored to the state in which he was before the injury, the obligation of commutative justice arising from theft or damage done is satisfied. Hence

1° It is not necessary, of itself, that restitution be made openly; indeed often it cannot be done in that way, nor even ought it to be, so that regard be had for the reputation and honor of the one restituting.

2° It is not necessary that restitution be made by the debtor himself, but it can be made by anyone else, provided the thing be given back to its owner. Thus at times, and for grave cause, it is entrusted to a confessor. But then great caution is needed: both that the seal of confession remain inviolate, and that there be no doubt for the penitent that the creditor has received the thing owed to him, lest any suspicion against the probity of the confessor ever arise.

3° It is not necessary that restitution be made with the owner being aware; because it is only required that the injured party be made whole. Hence the debtor can restitute, for example, by increasing the weight or measure in selling, or the owed work in laboring, and in six hundred other ways. ^{437 437} Gury, n. 708.

4° It is commonly taught that restitution made by means of a simulated donation is valid. If, however, the creditor, moved by gratitude, were to give back another gift, this again would have to be restituted to him, at least in equivalent value, if the thing itself could not prudently be given back; because an antidotal donation, in this case, would proceed from error, and consequently would not be valid. ^{438 438} Carrière, n. 1265; Marc, Instit. moral. Alphons., n. 1014.

You will ask 1° how damages inflicted on associations are to be repaired, for example, on an insurance society against fire.

Some have said it impossible to repair such damages toward all who suffered them; because ordinarily, at the time of restitution, very many, who are unknown, would have left the society. But this reasoning does not hold, for when members depart others succeed them, to whom their rights are transferred. Therefore the difficulty exists only in the case of dissolution, since very few could be found, and the share to be given to each would be most minute. And so

I answer: Restitution must be made to the administrators of the society, taking care that it benefit the society itself. If, however, the society has ceased to exist by dissolution or in some other way, the money must be restituted or refunded either to the poor or to pious causes; because it is not lawful to grow rich from a thing unjustly acquired.

You will ask 2° how damage inflicted on the state is to be repaired.

I answer: It must be repaired by using the means established by law, if any exist. Now such a law exists in Austria. Where no such means have been legally established, however, restitution must be made through the officials in charge of taxes, if it is certain that the money is to be laid up in the public treasury. In France, where such a law is lacking, restitutions are entered in the public records. If, however, there is danger that the officials will turn this money to their own uses, it must be distributed to the poor, or expended for the benefit of pious causes. ⁴³⁹] ⁴³⁹ Gury, n. 712.

The manner must be convenient, so that the thing returns to the Lord in a fitting way. Hence it does not matter whether the debtor restores by himself or through another, as is gathered from cap. Qui per alium, De reg. iur. in 6.

Hence it follows that he who, because of uncertainty about the creditors, must restore to the poor, can do so by himself, without the counsel of his confessor, or the intervention of the Bishop, as Nauar. gathers from the common opinion, man. cap. 17. num. 91. Valentia quaest. 6. puncto 9. who adds with others, that the Bishop cannot forbid him to do so by himself without his counsel, except in four cases, in which the Bishop has power over it, as the cited authors teach. The first is, when he who was bound to restore to the poor dies without heir and executor. Second, when such a man is unwilling to restore, so that proceedings can be taken against him. Third, when such a man does not distribute rightly to the poor. Fourth, when such a man is found to be a usurer, and makes a will, or is already dead, as appears in cap. Quamquam de usuris, in 6. The Bishop can also, for certain reasons, forbid the confessor to absolve such a man without his counsel.

It follows next that he who holds a thing from an unjust reception can restore through another, lest he incur infamy or loss of liberty, as I said above, and as the Doctors teach, gathered by Fagundez Lib. 7. cap. 28. and Bassaeum V. Restitut. 4. §. 5. Bonacinam de restit. disp. 1. quaest. 7. I counsel, however, that he take care to ascertain whether restitution has been made.

I add, with the cited Doctors, that public debts arising from wickedness, as usuries and robberies, ought to be paid publicly, so that the scandal to others may be removed.