The manner of 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.

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.

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 : 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.