Restitution in General

WHEN other sins have been committed they are blotted out and reparation as far as possible is made for them by sincere sorrow and repentance. But when commutative justice has been violated it is not sufficient to be sorry for the injustice done; reparation must be made for it by putting, as far as possible, the person injured in the same condition as he would have been if the injury had never been inflicted. This reparation for an injury that has been done to another is called restitution. There is a strict obligation in justice to make restitution as far as is possible to another whom one has injured; for justice requires that each one should have his own; but one who has been injured is deprived of his own so long as restitution has not been made; and so, in order that each one may have his own, in order that that equality may be preserved which justice prescribes, restitution is of strict obligation whenever commutative justice has been violated. It is an obligation of justice, and so it is a grave one, unless the matter be light.

As justice may be violated either by taking away from another what belongs to him, or by damaging or destroying his property, so we may consider restitution as being due either because one has what belongs to another, or because he has inflicted on him unjust damage and loss. These are called by theologians the roots of restitution. We will treat of them successively, and finally of the obligation of making restitution on account of co-operation in injustice,

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. III, Section I. Damnification in General

WHOEVER wilfully causes unjust damage to another, even though he himself obtained nothing by his unjust action, is bound to make restitution to him as far as he can. For he is the unjust cause why another has not what belongs to him, and in order that justice may be done he must cause the person damaged to be put as far as possible in the same condition as he was in before the damage was done. He must then make restitution not only for all the damage which he intentionally caused, but for all consequent losses as far as they were in general foreseen.

In order that such an obligation may be imposed, certain conditions must be fulfilled which it will be well to state more explicitly.

(a) The damage must be inflicted voluntarily, with knowledge and the will to do the wrong. For a man is only responsible in the forum of conscience for his free and voluntary actions. There must be theological fault, as theologians express it, otherwise there will be no obligation in conscience to make good any damage, at any rate before lawful sentence of a judge competent to impose such an obligation. For the law sometimes imposes the obligation of making good damage which has been done, even though it was not foreseen or intended. This is especially the case when there has been legal negligence or the omission of that diligence which the law requires in the circumstances. There are three degrees in this negligence: “ Ordinary neglect has been defined to be the omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns; gross neglect is defined to be the want of that care which every man of common sense, however inattentive soever, takes of his own property; and slight neglect to be the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels.”¹ In some cases the law punishes even slight neglect, in others ordinary, in others only gross neglect. The omission of that care which the law requires in the case is called juridical fault, and after sentence there will be an obligation in conscience to make good damage caused through juridical fault, for the laws prescribing this are just, inasmuch as they make men more careful and conduce to the public good.

If something has been done without foreseeing that it would cause damage to another, but this danger was noticed before the damage actually took place, there will be an obligation in justice for him who performed the action to prevent the damage as far as he can; if he does not do this, he will be bound to restitution. For as long as he can prevent the evil consequences of his action, this is under his control, and may, from the point of view of morals, be considered as continuing, and thus, unless he prevents the evil when he can do so, the agent is the voluntary cause of it. If, however, he cannot prevent the damage without relatively serious inconvenience to himself, there is just cause for excusing him. And so, if I inadvertently throw a lighted match on the ground, and then notice that it may probably cause a conflagration with loss to others, I am bound in justice to extinguish the light, otherwise I must repair the damage done.

If slight negligence caused slight damage to another, there will be an obligation of repairing it under pain of venial sin. If slight negligence caused serious loss to another, there is a difficulty as to whether before any judicial sentence there be an obligation to make restitution. Many theologians deny that there is, for no grave obligation can arise from a slight fault, and a light obligation has no proportion to serious matter; there cannot be a light obligation to avoid homicide, for example.²

(b) In order that there may be an obligation to make restitution for causing damage to another, the damage must be really and objectively unjust. If damage to another follows from the lawful exercise of my rights, I am not bound to make it good. If I dig a well in my property and thereby deprive my neighbour of his supply of water, I am not bound to make restitution for the damage. Similarly, I may sell a new machine or invention, though it may indirectly cause loss to many who had on sale machines of older pattern for which now there will be no market.

I may lawfully use persuasion to induce a rich relative to leave his money to me, though others who would have had it thereby suffer loss, If, however, I make use of unjust means such as threats, violence, or calumny, and so prevent another from getting what he otherwise would have got, I commit a sin against justice and am bound to make restitution to the injured party. This is true even though he had no strict right to what he would have got, for at least he had a right not to be balked of his expectations by unjust means, And so in a competitive examination or concursus where something of value is the prize at stake, one who secures the prize by unjust means must make restitution to him who would otherwise have secured it. If there were no certainty of his securing it, restitution as far as possible must be made according to the degree of probability of his success.

(c) The unjust action must be the cause, not merely the occasion, of damage being done to another, in order that there may be an obligation of making restitution. For we are only responsible in justice for damage which we have caused. And so if I commit theft and others are induced to do the same by my bad example, I am indeed bound to make restitution for what I have stolen, and I commit a sin against charity by giving bad example to others; but probably at least, according to many theologians, I am not bound to make restitution for what others stole through my bad example. Similarly, I am not bound to make restitution for damage which was caused accidentally by my action, when there was antecedently no probable connection between my action and the damage caused. As, for example, if I lit a fire in my property, and there was no probable danger of its causing damage to my neighbour, I am not in conscience before judicial sentence bound to make good damage which it caused him on account of an unforeseen change in the direction of the wind. Some theologians would bind the man who lit the fire to restitution in this case if he hoped for the change of wind and intended the damage. They say that the wrongful intention supplies the want of physical causation and puts him under the obligation of making restitution. This opinion is probable, but the opposite also is probable, for although the evil intention makes the man guilty of affective injustice, he is not guilty of effective injustice, for his evil intention makes no difference in the physical sequence of cause and effect, and if he was not the cause of the damage prescinding from his evil intention, that evil intention could not make him the cause.

In the same way, if the theft of one servant is wrongly imputed to another, and this one is dismissed in consequence, the thief is not bound to make restitution to the injured man unless in some way he caused the false imputation.

One who is not sure whether any harm was caused by his action is not bound to make restitution, for a certain obligation cannot arise from an uncertain source. Whether there is any obligation of making restitution for damage which was certainly caused, but it is uncertain whether the author was A or B, is a disputed point among theologians. Many teach that there is an obligation on all the probable authors in common to make good the damage, and each will be bound to make good the whole in default of the rest. This is certainly true in case of conspiracy; but if each acted independently, and it is not certain which one caused the damage, it is hard if the burden of restitution is imposed on someone who perhaps did not cause the harm.³

If an incendiary intended to set fire to the house of A, and by mistake he destroyed the house of B, it would seem that he is bound to make restitution, for all the requisite conditions are present. His action was voluntary, really, and effectively unjust. Some theologians, however, deny that the obligation of making restitution can be imposed in such cases. For the injury should be formal, and they deny that it is formal in this case. He did not intend to injure B; it was purely by mistake that his house was burnt down. Some weight must be allowed to this opinion on account of the authority of those who maintain it, but it would seem to be over-subtle and against the common sense of mankind. The injury was formal, inasmuch as it was voluntary and knowingly unjust. This is sufficient to induce the obligation of making restitution; it is not necessary that the wrongdoer should intend to injure a definite person.

¹ Chitty, The Law of Contracts, p. 412.

² St Alphonsus, 3, n. 552.

³ Bucceroni, 1, n. 1369.

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. III, Section II. Particular Cases of Damnification

There is a controversy among theologians as to whether there is an obligation apart from the just sentence of a judge for one who has injured another in one species of goods, as, for example, in his reputation, to make restitution to him in goods of another order, as, for example, in money. A competent judge may, of course, impose such an obligation according to the rules of equity; but apart from positive law the opinion which denies any strict obligation to do this seems the more probable. For if justice imposed such an obligation, equality would have to be secured between the injury inflicted and the compensation paid. This however, seems impossible in such a case, for there is no common measure of reputation and money. Moreover, however large a sum of money were paid in compensation for detraction, the reputation which had suffered would not thereby be restored. Justice, however, requires that what has been taken away should be restored, not something else.

One who has unjustly wounded another, according to the more probable opinion, as we have seen, is not bound to make compensation in money for the wounding or mutilation.

He is, however, bound to make restitution for all expenses to which his action has subjected the injured man, and for all other money losses which followed in consequence of loss of work, position, etc., and which were in some way foreseen by the wrongdoer. If the injured man dies, restitution must be made to his heirs or legatees for all the expenses he was put to or the losses he suffered on account of the unjust action, If, in consequence of the injury inflicted, the injured man cannot provide for wife, children, or parents, or if death ensued, the wrongdoer will be obliged to provide at least what is necessary for their support. For these had a right not to be deprived of their support by the unjust action of the wrongdoer. There are no necessary heirs according to English law, and it is a controverted point whether restitution is due to other heirs, relatives, or creditors who have suffered damage from the injury inflicted. It is probable that inasmuch as injury to such people is not necessarily connected with unjust wounding or homicide, and only follows from it in a remote and accidental manner, there is no obligation to make compensation to others besides the above-mentioned.¹

Whether the injured man can release the wrongdoer from the obligation of providing for his family who are dependent on him is a disputed point among divines. Many approved theologians hold the affirmative on the ground that the family acquire their right to compensation through the injured man, who therefore can release the wrongdoer from all obligation to make restitution. This opinion is certainly probable, and so in case of a duel where both parties have freely consented to fight, and therefore freely accept the consequences of their action, there will be no strict obligation for the victor to make any compensation for wounding or killing his adversary.

¹ Lugo, disp. 11, n. 77.

Scientist et volenti non fit injuria; and so if a woman suffers loss of reputation, position, or money, in consequence of fornication freely committed, no restitution will be of strict obligation. Even for criminal assault or rape no restitution in money is of obligation to compensate precisely for the loss of virginity. But the man who has been guilty of this crime must make restitution for other losses, and either by marrying the woman wronged or by providing her with a dowry, he must, as far as possible, put her in the position in which she would have been if he had not wronged her.

No money compensation is of obligation on account of adultery when no child has been born of the adulterous intercourse. If a child has been born, and loss ensues to the husband who is compelled to support a child which is not his, or to the family because one who has no right comes in for a share of the inheritance, compensation must be made by the guilty parties. Great difficulties would arise if an adulterous wife made known her crime to her husband, so she is not bound to do this; nor is a child bound to believe the sole assertion of his mother that he is illegitimate. Compensation must be made in other ways as far as possible. In practice, however, if husband and wife are living together, it will rarely be certain whether a child that is born is the fruit of adultery or not, and the presumption is that it is legitimate. If they are not living together, the adultery will be patent to the husband, and if he consents to support the child and treat it as his own, the obligation of the adulterer will cease.

Vol. I, Bk. VI, Pt. VII, Div. III, Chapter V. Circumstances of Restitution

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.

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. V, Section I. To Whom Restitution is to be Made

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

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. V, Section IV. 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.

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. V, Section V. Time and Place of Making Restitution

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.

Vol. I, Bk. VI, Pt. VII, Div. III, Chapter VI. Causes Which Excuse from Making Restitution

ONE who is per se bound to make restitution may sometimes be excused from doing so for special reasons, either entirely or at any rate for a time. It is plain that if the owner does not expect or wish restitution to be made, although he was unwilling to be injured, the obligation will cease. A rich father may be unwilling that his son should take from him a sum of money without his permission, but after it has been done he may not care to exact restitution. Similarly, a wealthy man would be very angry if a neighbour took one of his horses out of the stable and used it for a day’s work; he might demand an apology, but he probably would not take any money compensation; he does not keep livery stables.

Vol. II, Bk. VI, Chapter XIII. Mistakes made in Hearing Confessions

ONE who culpably causes unjust harm to another is bound in justice to repair that harm as far as he can. Even if the action which causes harm to another is done innocently, there will nevertheless arise an obligation to prevent the harm as far as possible as soon as the danger is noticed, and if there is grave negligence in doing this without reasonable excuse, injustice will be committed and the obligation of making restitution incurred. A confessor who admits a penitent to confession is bound in justice to absolve him if he is properly disposed for absolution. And so if he has neglected to do so, he must repair the error afterward, especially if the penitent were in danger of death and may die in sin without sacramental absolution.

Similarly, if the confessor gave his penitent false instruction in faith or morals, or bad advice, or bound him to make restitution when he was under no obligation to do so by the law of God, or released him from such an obligation when he was really under it, the confessor must afterward correct his mistake, taking the precaution to ask the penitent’s leave to say something to him about his confession if an opportunity is afforded him only out of confession. When the penitent was wrongfully compelled to make restitution with grave fault on the part of the confessor, the latter is bound in justice to make him restitution for the loss that he has suffered, if he cannot otherwise recover his money. The confessor is in the same way bound to make restitution to the defrauded creditor when, with grave fault, he released a penitent from the obligation of paying a just debt, if in consequence the penitent is now unwilling or unable to fulfil his obligation.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 24 passages

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Art. I, Obligation, and Titles of Restitution

n. 979.

I. Notion of restitution. Restitution is the reparation of another's violated strict right, or it is an act of commutative justice by which someone returns another's thing or compensates damage unjustly inflicted by himself.

Restitution differs: 1° from satisfaction, which consists in the reparation of an offense inflicted on someone; 2° from payment, which neither returns another's thing nor supposes damage unjustly inflicted.

n. 980.

II. Obligation of restitution. 1. The obligation is clear both from Sacred Scripture¹ and from the reason brought forward in n. 978.

The obligation of restitution is grave by its kind, that is, grave or light according as the matter to be restored is grave or light; for the said obligation corresponds to the obligation of not committing injustice; and that obligation is grave by its kind (n. 978). Nevertheless, the gravity of the obligation ceases if so much has been restored that the remaining matter ceases to be grave (St. Alphonsus, III, 553).
In doubt whether the thing or quantity taken away by you, destroyed, or consumed, is grave, you are bound under grave obligation to restore, because, once another's certain right to a thing or to a quantity has been posited, it is gravely illicit for you to expose yourself to the danger of continuing grave damage. But in doubt whether you took, destroyed, or consumed more or less, for example whether you stole 20 or 10 florins, you are bound only to restoring the lesser amount, because the fact founding the obligation of restoring more is doubtful (n. 228; St. Alphonsus, III, 706).
It is disputed whether one who has harmed someone in a kind of goods in which he cannot restore must compensate the injury with money, for instance if someone has mutilated or defamed another.

Response. St. Thomas (II-II, q. 62, a. 2, ad 1 and 2) seems to affirm, because where an equivalent cannot be restored, there must be made the compensation which is possible. Thus also Cajetan.² St. Alphonsus, however, with others, deservedly holds the contrary as sufficiently probable. For "commutative justice obliges one to restore according to the equality of the damage inflicted. But where restitution is to be made in a different kind, there is no equality present, nor will there ever be any compensation of the damage; for by any money whatever the damage will by no means be repaired, either in whole or in part. And thus response is made to the opposite opinion" (St. Alphonsus, III, 627). There is added that a strict right must regard something determinate. But it cannot be determined what in a diverse order would have to be restored.

Corollary. In this case the injured person generally cannot provide for himself by occult compensation, because the debt is only probable; cf. however n. 1074. But where the injured person has received compensation in another kind from the one harming him, he can retain it, nor can the one who harmed now recover it by occult compensation (n. 1033).

¹ Cf. Exod. 22:5; Tob. 2:21; Ezek. 33:15; Rom. 13:7; Jas. 5:4.

² Summa, word Restitutio, cap. 2.

n. 981.

III. Titles of restitution, that is, the reasons or roots from which the obligation of restitution arises, are: 1° another's thing materially unjustly possessed; 2° another's thing formally unjustly accepted; 3° mere damaging, which takes place when someone merely injures the good of another, or unjustly impedes him from acquiring a good. A contract, whether not observed or violated, is referred according to the circumstances to one of the assigned titles (St. Alphonsus, III, 548).

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Art. II, § IV, Point III. On the Measure and Order by which Cooperators Are Held to Restitution

n. 1006.

I. Measure of restitution. 1. Those who have cooperated in the same damage can be held to restitution in two ways: in solidum and pro rata, as they say. An obligation in solidum consists in this, that the cooperator is held to restore the whole damage; an obligation pro rata is had when someone is obligated only to the part which is commensurate with his influence. The obligation in solidum is distinguished as twofold: absolutely and conditionally solidary, according as someone is held to the restitution of the whole damage before all others, or only in default of the other cooperators. One who is held absolutely in solidum can demand no compensation from the cooperators; otherwise one who is held conditionally.

He is held in solidum who has so influenced the whole damage that the whole must be imputed to him; others are held only pro rata for their own part. Hence they are obligated in solidum:

a) He who alone was the principal cause of the damage, as a sole one commanding (St. Alphonsus, III, 579).

b) He who alone was the secondary cause of the damage, as a sole executor (St. Alphonsus, loc. cit.).

c) Those who were equal causes, whether principal or secondary, as follows. These are held in solidum:

α) Those whose cooperation was necessary, although not sufficient, for inflicting the damage; as if three carry away a chest which two could not have carried away (St. Alphonsus, loc. cit.).

β) Those whose conspiracy was necessary, so that, if one had not consented, the damage would not have been inflicted (St. Alphonsus, loc. cit.).

γ) Those whose cooperation was in fact sufficient, even if it was not necessary for inflicting the damage; as if two induced a thief to steal, and each proposed an efficacious motive; or two discharge a gun at the same person, and each inflicted a lethal wound (St. Alphonsus, loc. cit.).

δ) It is disputed concerning those whose cooperation indeed regarded the whole damage,¹ but was neither necessary nor sufficient.² But a sufficiently probable opinion teaches that they are held to restitution only pro rata, because in this hypothesis the whole damage seems to be ascribed rather to all together than to each separately (St. Alphonsus, loc. cit.).

Note. "It must be observed that although rough persons are held in solidum, it is rarely expedient to obligate them to the whole; since such persons are with difficulty persuaded that they are held to restoring the part taken by their companions. - Indeed, it can be presumed enough that the owners themselves to whom restitution is owed consent that they restore only the part taken by them; since otherwise there must be great fear that they will restore nothing, if they are obligated to the whole" (St. Alphonsus, III, loc. cit.).

¹ It is said: it regarded the whole damage; hence the case is not present if several, for example, carry away a heap of wheat, but each carries away his own part, and this without mutual influence or dependence.

² The case is present if someone, for example, proposed to another a motive for killing someone, which was not necessary, and yet by itself would not have sufficed to move the killer efficaciously; or if four carry away a chest which even two would have carried off.

n. 1007.

II. Order of restitution. Those who cooperated in the same damage are held to restitution in this order:

Before all others the possessor is held, that is, he who has another's thing in itself or in equivalent. If he is no longer possessor, before all others he is held who consumed or destroyed another's thing in bad faith, unless he did this in the name of another (St. Alphonsus, III, 580).
Next the one commanding is held, if there was one, because he "is principal in the deed" (St. Thomas, II-II, q. 62, a. 7, ad 2; St. Alphonsus, loc. cit.). But to him is assimilated the one who by unjust means, for example by false doctrinal counsel, "was the cause why the damage was inflicted: for although then he is not the principal cause in strictness, nor does the executor act in his name but in his own, nevertheless by injustice he cast the executor into the obligation of restoring; therefore he is bound to preserve him unharmed, and accordingly must restore in the first place for him on whom he unjustly imposed such an obligation."¹
Then the executor is held (St. Thomas, loc. cit.; St. Alphonsus, loc. cit.). To him is equated one who was a participant in the unjust action and acted in his own name, for example one who with others cast a vote efficacious for passing an unjust sentence; because such persons are co-executors of unjust damage.
After the executor other positive cooperators are held; among these there is no order (St. Alphonsus, loc. cit.).
Finally negative cooperators are held (St. Alphonsus, loc. cit.). Even among them there is commonly no order. Nevertheless, sometimes an order seems to have to be admitted; thus, for example, particular guards, who are immediately bound to impede damages, seem to be obligated before general guards, who must watch that the particular guards duly fulfill their office.

Corollary I. Among cooperators there can be a twofold subordination: one as regards damaging, another as regards the mode of cooperating; and then there will also be a twofold order in the obligation of restoring. For example: Paul commands his son to counsel Peter not to impede damage which Peter by justice ought to impede. In the case all are non-impeding; but in the order toward restitution Peter precedes the rest; if he fails, Paul comes as the one commanding; finally the son as the one counseling.²

Corollary II. If a solidary debtor has repaired the whole damage, the less principal causes are held to nothing; but the more principal causes must refund the whole to the said debtor, and equal causes each their own part. For example, A, B, and C, equal solidary causes, owe Peter 30 florins. A restores the whole. In the case B and C must each refund 10 florins to him (St. Alphonsus, III, 581).

It is disputed whether, if some cause refuses to refund his part or cannot do so, another must partially supply the part not refunded. For example, in the case given, B refuses to return 10 florins. Must C refund 15 florins? Many deny, because the obligation in solidum exists only toward the creditor, not toward fellow debtors. But it seems this must be affirmed; for by the fact that B refuses to pay 10 florins, A and C are each held to return 15 florins to Peter, so that A, by returning 30 florins, returned 15 florins for C, and therefore can demand them from him.

To the argument of the adversaries I respond that the obligation in solidum exists directly indeed toward the creditor alone, but indirectly toward fellow debtors, if the latter have paid the creditor in place of another debtor.

Corollary III. If a solidary debtor has received condonation, all less principal causes are held to nothing; but more principal causes are in no way freed; nor, per se, are equal causes freed, although they are not held to restore the part condoned to the fellow debtor. I said per se, because sometimes the intention of the one condoning to free equal causes can be presumed (St. Alphonsus, loc. cit.).

Nevertheless, let it be seen what civil law establishes about condonation.

Corollary IV. One of the solidary co-debtors who doubts whether his companion has restored his part is more probably bound to restore the whole; because in doubt about payment, the right of the damaged person, as prior to payment, is of better condition (St. Alphonsus, III, 569; I, 34; n. 1020).

¹ Waffelaert, II, n. 399.

² Sweens, n. 361.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Article III. The Person to whom Restitution Is to Be Made

n. 1010.

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:

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.
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.

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.

n. 1011.

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

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).
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.

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).
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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Art. III, Scholion. On the Case in which Someone Cannot Satisfy All Creditors

n. 1012.

I. With regard to natural law:

Another's thing existing in itself must be returned to the owner (St. Alphonsus, III, 690).
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.
There follow creditors endowed by law with a privilege in certain determinate goods, namely insofar as the law truly grants the privilege.
Then come creditors endowed with a privilege in all the goods of the debtor, namely again insofar as the law truly assigns the privilege.
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.

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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Article IV. The Time of Restitution

n. 1014.

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:

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

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.
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.
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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Article V. The Place of Restitution

n. 1015.

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:

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.
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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Article VI. The Mode of Restitution

n. 1016.

I. In general, any mode is sufficient by which the owner is rendered unharmed. Hence:

It is all the same whether restitution is made while the owner notices it or while he does not notice it, for example by increasing the measure or by decreasing the price of merchandise.
Restitution can more probably also be made through a simulated donation, that is, by which someone gives under the appearance of giving, but intends to satisfy the debt. If, however, the creditor would give it back, being otherwise not about to give, this donation would be invalid (n. 837) and therefore would have to be restored. A non-simulated donation, that is, one by which someone truly intends to give, does not suffice if someone gives while mindful of the debt, because then he wills that the creditor's right endure. If he gives while forgetful of the debt, it does not suffice if it is evident that the debtor, even if he had been mindful of the debt, would nevertheless have given. Otherwise the matter is disputed. St. Alphonsus and many other authors hold the opinion which affirms it as sufficiently founded, relying on this reason, that each person is presumed to have the habitual will of first satisfying debts from justice (St. Alphonsus, III, 700, question 2). There is added that at least condonation on the part of the donee is reasonably presumed.
A debt is also satisfied through restitution (or payment) made by the debtor to the creditor of his own creditor. Make exception if the debtor must restore a determinate thing or a debt of a different species to his creditor; for example, if the debtor owes wheat to his creditor, but the creditor owes money to his own creditor. Besides, restitution (or payment) made in this way, that is, to the creditor of one's creditor, per se seems to be opposed to the order of law.

II. In particular note:

Restitution to be made to the republic should be transmitted to the Minister of Finance, who should be asked to announce the restored sum in some public newspaper. Restitution can also be made by burning either obligations of the public treasury, or notes of the public bank, or stamps to be affixed to letters being transported. But if no mode exists by which it is certain that the restitution truly comes to the republic, it can be made to the poor or to other pious causes, for example Catholic schools, to which equitable subsidies are unjustly denied by the republic.
Restitution to be made to a municipality, institute, or association should be assigned to the administrators of the goods of the municipality or association.
As regards the mode by which household members, that is, spouse, children of the family, and servants, are held or are able to restore, note:

a) Per se they are held to restore from their own goods, if they have any.

b) If they lack goods of their own, or cannot conveniently restore from them, let them restore, for example, by frugality or by extraordinary services; likewise, if there is question of a spouse, by testament, or, if there is question of children of the family, by contributing the sum to be restored into the inheritance to be divided. Nevertheless, there is no obligation to the latter means unless there is question of a large quantity (St. Alphonsus, III, 546).

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Art. VII, § I. Causes Extinguishing the Obligation

The causes which, besides the very fulfillment of the obligation, extinguish it are:

n. 1017.

I. Remission or condonation made by the creditor, provided, of course, those things required for valid condonation are present (St. Alphonsus, III, 700, 1°).

Presumed remission for the future suffices, that is, that the creditor would remit it if he were asked, provided he would not do this on account of the petition alone, but on account of, or also on account of, a good affection toward the debtor. The reason is that, in the hypothesis posited, the owner, morally speaking, is now not unwilling with respect to the omission of restitution. If, however, he is unwilling with respect to the mode, that is, with respect to the omission of restitution without express pardon, you are not excused from venial sin (St. Alphonsus, III, 700, question 1).

n. 1018.

II. Compensation properly so called, or legal compensation, has place when two persons who are debtors between themselves oppose and extinguish a mutual debt. But what is required by law in the case, see in the Code of the country.

There will be discussion later about compensation improperly so called, or hidden compensation, which can likewise extinguish the obligation of restitution.

n. 1019.

III. Composition made by public authority; namely:

A sentence of a judge obtained without fraud frees, if the cause was truly doubtful, whether by doubt of law or of fact. Likewise a punitive sentence which, as a punishment for a delict committed by the creditor, absolves the debtor from restitution, is valid also for the internal forum.
The Supreme Pontiff can condone restitution owed to pious causes.

In fact, the Roman Pontiffs have not rarely granted condonation of this sort concerning those goods which had been unjustly confiscated by the Government, or had been occupied by private persons and then passed into the hands of the Government. But if there is question of those goods which were usurped by private persons, or even by public authority but in those places where the aforesaid condonation has not been made, Catholic acquirers will not be safe in conscience unless, for the individual case, they have recourse to the Holy See to obtain sanation.¹ The Supreme Pontiff can also remit uncertain spiritual debts, or even certain ones, to be paid by someone, for example Masses to be said. He can remit them, I say, by compensating from the treasury of the Church the detriment which the creditor is going to suffer. Indeed, sometimes he has granted a general faculty of satisfying, by one Mass, for several Masses owed from a stipend accepted. Recourse is made to the Sacred Congregation of the Council; but if the case is hidden, to the Sacred Penitentiary.

Prescription can also be referred here, since it sometimes extinguishes the debt itself; it can be referred here, I say, insofar as it receives force from public authority.

¹ Sweens, n. 415.

n. 1020.

IV. As to how far the destruction of the thing excuses from restitution, see nn. 983, 990.

Question 1. Whether he is still held to restore or pay who doubts whether he has restored or paid.

Response 1. He who thinks that he has restored or paid is held to nothing. Now he who is generally diligent in paying can, in doubt, rightly think that he has satisfied the obligation. On the contrary, he who thinks that he has not restored or not paid is held to the whole debt (cf. n. 229).

Response 2. It is disputed to what he is held who, all things considered, strictly doubts whether he has restored or paid. Some deobligate him entirely; a few bind him to a part, others to the whole debt; and this opinion seems to have to be admitted. For 1° in doubt the condition of the possessor is better, that is, of that which is prior and continues to persist with equal probability (n. 229). But the creditor's right to restitution or payment is prior to the restitution or payment itself, and in the hypothesis posited persists with equal probability. 2° Natural equity demands that he who is in doubt whether he contracted an obligation of restoring or paying be obligated to nothing; and, I say, that he who is in doubt whether he has satisfied a contracted obligation be bound to the whole debt (St. Alphonsus, III, 700, question 2; Homo Apostolicus, tr. 1, n. 20).

Objection 1. It is not equitable that the whole debt be paid to him who indeed had a certain right, but here and now has only a doubtful right.

Response 1. I turn the argument back; since with the same right it can be said: it is not equitable that nothing be paid by him who doubtfully did not contract the debt.

Response 2. That is equitable, provided it is admitted that nothing is to be paid by the same person if he only doubtfully contracted the debt. Once this is admitted, and it is now commonly admitted, equity precisely demands that he pay the whole if he certainly contracted the debt and only doubtfully satisfied it.

Objection 2. In doubt the condition of the possessor is better. But the debtor possesses the thing, for example his own money. Therefore in doubt his condition is better.

Response. I distinguish the major: in doubt as to whose some thing is, the condition of him who possesses it is better, I concede (n. 777). In doubt whether the one possessing the thing has satisfied the obligation of yielding it to another, posited that the said obligation certainly existed and with equal probability continues to persist, the condition of the possessor is better, I deny, on account of the reasons given.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. II, Art. VII, § II. Causes Suspending the Obligation

n. 1021.

The causes which suspend the obligation of restoring are enumerated:

I. The impotence of the debtor, whether physical or moral. As regards physical impotence, the matter is clear; as regards moral impotence, it is deduced from the fact that the creditor in the case would demand restitution irrationally. To impotence belong:

The necessity of the debtor or of his own, that is, of wife, children, parents, or, as others add, of the other ascendants and descendants, indeed of brothers and sisters. Necessity excuses: 1° when the debtor lacks the means with which he can satisfy; 2° when by restoring the debtor would be cast into extreme or quasi-extreme necessity. Make exception if the creditor is already in the same necessity, and "precisely by reason of that subtraction or taking away has been cast into extreme necessity, because to take from someone a thing necessary for life itself is the same as killing him; whence in the case the condition of the owner who possessed first ought to be better" (St. Alphonsus, III, 701); 3° when by restoring the debtor would be cast into grave necessity. Make exception if the creditor is already in necessity of this sort, or in graver necessity, because then the condition of the creditor ought to prevail; 4° when both creditor and debtor are already in grave necessity; for then the debtor, by restoring, would be cast into a much worse condition than the creditor. Make exception if the thing taken away exists in species, or if the creditor precisely through that taking away has come into grave necessity (St. Alphonsus, III, 701, 702, 703).
Damage in his own affairs much greater than that which will follow for the creditor from the delay. Hence, for example, you are not held to sell your things for much less than they are worth. But ceasing profit is not a cause for delaying restitution; for it is not equitable that the creditor be deprived of his thing or his debt so that the debtor may gain profit from them. Make exception if the creditor would suffer no damage from the delay, or if there is founded hope that by delaying restitution the debtor could so gain that he would satisfy all the creditors; for then it seems that the creditor ought to suffer some delay (St. Alphonsus, III, 697).
Damage to himself or to his own in goods of a higher order, such as infamy, imprisonment, etc., unless the loss of the higher good is minimal with respect to the damage which the creditor undergoes (St. Alphonsus, III, 698). Hence, for example, a notary is not held, with danger of infamy, to disclose a false instrument made by himself in order to repair the damage which followed from it for another. An adulterous woman ought not, with danger to reputation, confess adultery in order to prevent the damage which threatens legitimate children from illegitimate offspring born. A spouse, in order to restore, is not held to reveal to the other spouse what things he or she has unjustly usurped from common goods. A debtor who has made cession of goods, but has unjustly concealed certain things, is not held afterward to reveal this to the creditors, because on account of the fraudulent cession of goods he would expose himself to danger of a very grave punishment. Nevertheless, he is held in another way, if he can, to repair the damage given.
Ejection from a justly acquired status. According to many, this reason excuses even then when someone by his own vice, for example by feasting, gaming, etc., has come to such necessity. I have said, however, justly acquired; for no one is excused from restitution on account of the loss of a status unjustly acquired, unless the injustice is hidden, in which case he is excused by reason of infamy. For the rest, ejection from a justly acquired status is nowadays to be urged somewhat less than before; both because ejections of this sort occur much more frequently, and because more people can more easily turn aside to another place, there to bear a lower status without confusion. Gluttons and gamblers also are not worthy of such great commiseration. Moreover note that even those who have justly acquired a status have the obligation of abstaining from superfluous expenses, indeed also of procuring for themselves, with some diminution of status, the faculty of restoring gradually and in parts (St. Alphonsus, III, 702).

n. 1022.

II. Damage that will follow either to the creditor himself or to a third party, namely from the fact that the creditor is going to abuse the thing restored, whether for sinning or for harming another. "When the thing to be restored," says St. Thomas, "appears to be harmful to him to whom restitution is to be made, or to another, it ought not then to be restored to him; because restitution is ordered to the utility of him to whom it is restored: for all things that are possessed fall under the aspect of the useful; nor nevertheless ought he who detains another's thing to appropriate it to himself, but either to reserve it so that he may restore it at a fitting time, or even hand it over to another to be kept more safely" (II-II, q. 62, a. 5, ad 1). Indeed, in the case there is per se an obligation of delaying restitution, an obligation, I say, either of charity, if there is question of the creditor himself, or of justice, if there is question of a third party, because in the case restitution would take on the character of cooperation toward the damage of the third party (St. Alphonsus, III, 697).

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. III, Art. I, § I, Point IV. On Mere Damaging in Goods of Fortune

n. 1034.

What has been said about theft in general and about minor thefts in particular is also to be applied to damaging in general and to minor damages in particular. Nevertheless, in particular:

Question 1. Whether even in mere damaging there must be admitted matter absolutely grave, that is, matter which even with respect to the very rich must be held as grave.

Response. It must be affirmed, because the act, for example, of destroying another's thing as such, according to its proper concept, that is, with abstraction made from the damage which is inflicted on the neighbor, involves disorder. But if it involves disorder, one must finally arrive at grave matter (p. 676).

Question 2. How great is the obligation of restoring if someone, through several minor damages following at a brief interval and done against the same owner, finally arrived at grave matter, but subjectively sinned only venially?

Response. The obligation is not grave in practice, because venial sins sufficiently probably do not induce a grave obligation (p. 649). It remains, therefore, that we say the damager is held under venial sin to restore each minor damage.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. III, Article II. On Goods of the Body

n. 1035.

I. Spiritual damages consist in this: that the one killed is deprived of the last sacraments, of time for meriting, etc. Moreover, they must be restored only if both the damage that followed is certain and the damage can truly be compensated; for example, if the killer prevented Masses from being celebrated which the one killed certainly would have taken care to have celebrated for his soul.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. III, Article III. On Goods of the Soul

n. 1038.

Goods of the soul are distinguished into natural and supernatural goods.

I. Natural goods are: intellect, will, memory, sciences, arts, and the use of these. In this matter, injustice is committed either by unjustly harming someone in the said goods or in their use, for example by inducing someone unwilling or ignorant into drunkenness or by casting him into a hypnotic state; or by unjustly impeding someone from obtaining a good of this sort, for example knowledge; or by not procuring for someone a good, for example an art, although one is held from justice to procure it. Now:

He who has committed injustice according to what has been said is held from justice: 1° to remove the cause of the damage, for example fear that has been instilled, and to prevent, insofar as can be done, damages threatening from it; 2° to restore damages or ceasing profit that have followed or will follow for the injured person, for example ceasing profit from the fact that someone is unfit for his office; 3° to return, according to the proportion of negligence, the stipend agreed upon and accepted, if someone, for example, has not duly performed the office of teaching.

Corollary. He who harmed someone only by persuasion, entreaties, or example is commonly not guilty of injustice, and therefore contracts only an obligation of charity. I have said commonly, because he who by persuasion or entreaties led another into a sin of injustice is held from justice to restitution with respect to the injured person.

n. 1039.

II. Supernatural goods are: grace, virtues, vocation to the religious state, etc. Now:

He who unjustly, for example by lies or fear, led another into a harmful error or into sin, or led him away from a good work, for example from Religion, is held as was said under I about him who unjustly harmed someone in the natural goods of the soul.
He who only by persuasion or example led another to evil, or led him away from good, is not held to restitution; nevertheless he is held from charity, more than others, to promote his conversion. There are some who judge that he is held to this from justice; but because he did not sin against justice, no obligation of justice can arise.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. III, Art. IV, § I. On Stuprum

n. 1040.

I. If the young woman freely consented, the man committing stuprum per se is held to nothing. He is not held with respect to the young woman, because no injury is done to one who knows and wills, if there is question of a right which someone can validly renounce. But the young woman could validly renounce the right that no one use her body. Nor is he held to anything with respect to the parents, even if, so that the daughter may marry equally well, they must increase the dowry. The reason is that the young woman herself, since with respect to marriage she is in her own right, can close off for herself access to more honorable marriages without being unjust with respect to her parents; but of the damage which the parents perhaps will suffer from the fact that they increase her dowry, she is the occasion rather than the cause. Therefore, if the young woman, consenting to the man committing stuprum, does not act unjustly with respect to her parents, neither does the man committing stuprum, who enticed her to consent (St. Alphonsus, III, 641, doubt 2).

I have said per se; for if the man committing stuprum has divulged the hidden stuprum, he is held to repair the damages that will follow from his unjust detraction, whether toward the young woman or toward the parents, for example by increasing the dowry so that the daughter can marry equally well, or by procuring honorable marriage.

II. If the young woman was unjustly violated, by fraud, fear, or force, he is held to compensate all damages that will follow from the injustice, except the damage of perhaps injured virginity, which cannot be repaired. Hence he is held either to marry the young woman or, if she rejects marriage, which is free to her, to take care in some way that she can marry equally well as if she had not been violated (St. Alphonsus, III, 641, doubt 2).

Corollary I. Entreaties and gifts do not bring with them the obligation just mentioned. But the obligation follows: 1° "if threats or reverential fear are joined with the entreaties; 2° if the entreaties were so importunate and frequent that the young woman judged that harassment a greater detriment than the loss of virginity: for then solicitation so importunate is compared to force ... this nevertheless happens very rarely, since a woman can easily, by conceived anger or otherwise, free herself from the one soliciting her. ... 3° if a man begins by touches and kisses to bring force upon the young woman, even if afterward she freely consents to be deflowered; because through that antecedent violence the man placed her in proximate danger of consenting to intercourse; ... 4° if the man is unwilling to leave, and the virgin consents because otherwise she fears being defamed if she is found alone with him by others. Yet in these and similar cases, the Salmanticenses say that the violator is held only to a part, not to the whole reparation of damages" (St. Alphonsus, III, 641, question 2).

Corollary II. If the man committing stuprum is going to compensate the damages inflicted with money, let him enter into a contract with those who have suffered the damage, and let him pay the established sum at one time, lest dangerous intercourse be continued.¹

Corollary III. The man committing stuprum is held to nothing, or to restoring only a part, if damages have followed in no way or only partially, as if the young woman can now marry equally well, or if offspring has not followed (St. Alphonsus, III, 641, question 1).

III. If the young woman was led to intercourse by a promise of marriage, the following must be said:

If the promise was made seriously, the man committing stuprum, according to what was said in n. 833, sufficiently probably is not held from justice to contract marriage, because a contract of this sort, namely about base matter, is sufficiently probably invalid and remains invalid even if the other party has furnished her part (St. Alphonsus, III, 712). I have said from justice, because per se he is held from piety toward the offspring, if perhaps one has been conceived, as will be explained in the scholion. Moreover, if it is evident that the promise was made under a suppositive condition, the man committing stuprum, according to what was said in n. 849, once the condition has been fulfilled, or intercourse granted, seems to be held from justice to marriage.
If the promise was made fictitiously, the man committing stuprum is held to prevent or compensate all damages arising from the intercourse; indeed he is held to fulfill the fictitious promise, or to marry the young woman. For the deceiver is held to furnish that for which the deceived party so furnished her part that the matter can no longer be reduced to its former state; otherwise the injury inflicted is not repaired. But in our case the deceived party furnished her part for obtaining marriage, and the matter can no longer be reduced to its former state. Therefore it remains that the deceiver offer marriage to the deceived party (St. Thomas, Supplement, q. 46, a. 2, ad 4; St. Alphonsus, III, 642). Besides, note:

a) True deception, and consequently the obligation of entering marriage, is lacking if the young woman could easily have understood from the circumstances that the promise was not serious; for example, "if the betrothed man is of much better condition, or if there was some evident sign of fraud; because it can probably be presumed that the betrothed woman was not deceived, but feigned that she was being deceived" (St. Thomas, loc. cit.; St. Alphonsus, loc. cit.). But if in the case the young woman was ignorant of the man's condition, not even then does the one promising seem to be held to marriage, because the young woman did not think of a promise of such value, and sought only consent of lesser value. "And therefore he who promised is not held to marry her; but it suffices if he repairs the damage by endowing her or by providing for marriage" (St. Alphonsus, III, 642, doubt 2). Finally, the man committing stuprum is not held by the fictitious promise if the young woman also deceived him, for example by pretending that she was a virgin when she was not such; in that case injury is compensated by injury.

b) If the young woman refuses the offered marriage, the man committing stuprum is held to nothing. If only the parents contradict it and are unwilling to hand over the young woman, it is disputed whether the man committing stuprum is freed. Some affirm it, because then he is not held by reason of the fictitious promise, since by it he is held only to marriage; because then the damage does not arise from his fraud, but from the opposition of the parents. Others with St. Alphonsus deny it, because the fictitious promise of marriage was made for this sole end, that the damage be compensated; hence, if marriage cannot be entered, the damage must be compensated in another way (St. Alphonsus, III, 647).

Corollary. The man committing stuprum, in the case in which per se he is held to marriage, is excused from marrying the young woman: 1° "if the worst outcome is feared from the marriage, as if the young woman is known to be too inconstant ... if great scandals or quarrels are feared among the blood-relatives of those contracting ...; 2° if from such a marriage disgrace would come upon the man's family, by reason of disparity of condition" (St. Alphonsus, III, 644); 3° "if the man knew the woman, thinking she was a virgin, but found her corrupt" (St. Alphonsus, III, 646). But much more probably he is not excused on account of a vow of chastity or another similar thing, nor generally on account of another dispensable canonical impediment. In the case he is held to take care that the impediment be removed, since a means of this sort is ordinary and therefore does not bring with it a cause of excusing (St. Alphonsus, III, 649, 650).

What if the young woman was induced by a promise of marriage only to touches?

Response. If the promise was serious, the seducer is not held to marriage, unless again it is evident that the promise was made under a suppositive condition; he is held if it was made fictitiously. Or, theoretically, the same things hold as in the case in which the young woman was led to intercourse by a promise of marriage. But in practice, as regards a fictitious promise, note that commonly true deception, and consequently the obligation of marriage, is lacking, namely because the young woman can scarcely admit that the promise of so great a good, made for touches alone, is serious (St. Alphonsus, III, 645).

¹ Aertnys-Damen, I, n.^†.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. II, Ch. III, Art. IV, § II. On Adultery

n. 1045.

IV. Mode of restoring. The adulteress, if she has goods of her own, should restore from these. If not, she should strive to satisfy in another way, if it can be done, for example by working more diligently, etc. Nevertheless, the adulteress, even if she cannot restore otherwise, is scarcely ever held to reveal her crime, namely on account of the infamy and other evils threatening from it (St. Alphonsus, III, 652, 653).

Note. What the law is in doubt whether the offspring is adulterous, or of which adulterer it is, see n. 1008.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 42 passages

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Restitution

n. 1751.

Restitution

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).

n. 1752.

Differences between Satisfaction and Restitution

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.

n. 1753.

When Restitution Is Due

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.

n. 1760.

Duties of Confessors about the Obligation of Restitution

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.

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Roots of Restitution

n. 1762.

The Roots of Restitution

The Roots of Restitution.—The roots or sources of restitution are usually reduced to two, according to the following two general kinds of injury inflicted on others:

(a) unjust damage, which is the loss inflicted, on the goods of another, without advantage to the offender, as in murder or incendiarism;

(b) unjust possession, which is the loss inflicted on another by the possession of his goods without his consent or against his will, to the advantage of the offender, as when a murderer steals from his victim, or an incendiary gets the insurance from the house he destroyed.

n. 1763.

Unjust damage that obliges to restitution is only an act (or omission) that is both injurious (being a guilty violation of another’s strict right) and productive of loss. Hence the following conditions:

(a) the act must be objectively unjust, a contravention of a strict right in re or ad rem (see 1695 sqq.), for example, stealing or keeping back the wages due an employee. But it is objectively unjust to deprive another of a non-strict right (e.g., the right of a beggar to an alms) by unjust means, such as force, fraud, calumny, etc. If a neighbor is not hindered from his strict right and unfair means are not employed, there is no objective injustice (e.g., when a merchant improves his place of business and thus draws away customers from a rival merchant);

(b) the act must be efficaciously unjust or the true cause of the loss which another suffers, for one is not responsible for what does not proceed from one’s act. An act is not efficaciously unjust, therefore, if it is only the occasion of damage (e.g., Titus steals and Balbus imitates him; Claudius steals, and on account of circumstantial evidence not arranged by Claudius, Sempronius is arrested and sentenced to prison), or if it is only a conditio sine qua non (e.g., Caius gives whisky to Julius, who needs its stimulation to nerve himself for a crime), or if it is only an accidental cause (e.g., Titus steals a small sum of money from a miser, and the latter, to the great surprise of Titus, becomes insane);

(c) the act must be subjectively unjust, that is, culpable and imputable; for one is not bound to satisfy for acts that are inculpable or not imputable (see 97 sqq.). There must be either theological culpability, that is, the intention to harm another, which is sinful before God (e.g., he who purposely sets fire to his neighbor’s barn), or juridical culpability, that is, carelessness which causes injury to the legal right of another (e.g., he who lights a fire near his neighbor’s buildings and by his absent-mindedness permits the buildings to catch fire).

n. 1765.

Restitution for Damages That Are Only Venially Sinful but Seriously Harmful

Restitution for Damages That Are Only Venially Sinful but Seriously Harmful.—(a) When one injurious act is committed (as when through slight carelessness one sets fire to one’s neighbor’s chicken coop), some deny, but others affirm, the duty of restitution, while still others distinguish according to the full or only partial advertence to the sinfulness of what is done. Of those who hold for restitution, some think that all the damage should be repaired, since all was caused; but others think that it suffices to repair part, since the culpability was limited.

(b) If several injurious acts, which taken singly are slight but taken together are serious, were done to the same person (e.g., a waiter breaking dishes at various times while working for the same proprietor), restitution is due as soon as the sinner realizes the amount of harm he has caused; but it is disputed whether the obligation is grave or light. If the injuries were done to different persons (e.g., a boy breaking windows in many houses in the neighborhood), there is more probably only a light obligation.

n. 1766.

Restitution on Account of Law for Damages That Are Only Juridically Culpable

Restitution on Account of Law for Damages That Are Only Juridically Culpable.—(a) Before sentence of court there is no obligation of restitution, for it would be too heavy a burden to impose this in view of the absentmindedness of so many persons and the numerous distractions one encounters.

(b) After sentence of court there is an obligation of restitution, for the law which gives the court a right to impose it is reasonable, since juridical fault is often accompanied by theological fault, and moreover men will thus be led to a greater prudence in the care of their own goods and in respect for those of others.

n. 1768.

Restitution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers

Restitution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers.—(a) If there was theological fault, restitution is due, unless the injured party took the risk upon himself. (b) If there was only juridical fault, it seems there is no natural duty of restitution, since no injustice was done; but a court may oblige to damages.

n. 1769.

Two Cases in Which Culpability Seems Doubtful

Two Cases in Which Culpability Seems Doubtful.—(a) When one has inculpably done or omitted something from which damage to another can be foreseen, and one has now become aware of the danger (as when Balbus lights a fire on his own property and sees that a change of the wind makes this fire dangerous for his neighbor’s barn), one must prevent the damage, if this can be done without equal or greater damage to oneself; otherwise one must make restitution.

(b) When one has culpably done or omitted something from which damage to another was foreseen, but has tried, though in vain, to prevent the damage after the cause was placed, restitution is due if the cause was physical (e.g., Claudius gave poison to Titus, and then moved by remorse gave an antidote, but Titus died), since the party who set the cause in operation is responsible; but if the cause was moral (e.g., Balbus ordered a gunman to beat up Caius, but withdrew the order, and the gunman on his own responsibility then assaulted Caius), restitution is not due when the revocation ends one’s influence upon the damage that ensues.

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Restitution for Cooperation in Injustice

n. 1778.

Cooperators and Restitution

Cooperators and Restitution.—Restitution is owed for cooperation in injustice when the cooperator becomes at least partially an unjust and efficacious cause of damage to another. It should be noted that this cooperation may be of a limited kind, as when it extends only to the mode of the damage, or when it is not indispensable to the commission of the injury.

(a) Thus, he who cooperates only as to the mode of injury is probably liable only for that damage which he added to the substantial damage. Thus, if Balbus intended to steal $10, and Claudius persuaded him to steal $20, it seems that the influence of Claudius extended only to the amount of $10.

(b) He who cooperates, but whose assistance is not necessary, is bound to restitution as a cooperator, since he is an unjust and efficacious cause of damage. Thus, if Caius steals for Sempronius, knowing that, should he refuse, Mercurius would carry out the orders of Sempronius, the readiness to steal on the part of Mercurius does not excuse Caius or make his act any less harmful.

n. 1781.

The Circumstances of Restitution

The Circumstances of Restitution.—By the circumstances of restitution are understood the persons by whom and to whom compensation is to be made, the things to be restored, the manner, time and place of restitution.

n. 1783.

Cooperators in damage are bound to restitution either in solidum or pro rata.

(a) Thus, they are bound in solidum (i.e., jointly and severally) for all the loss when they are total causes of the damage, But the principal cause is bound absolutely, the secondary or equal cause only conditionally, that is, the principal must pay all the restitution himself, the others must pay all only when the principal or other associates fail to do their duty.

(b) They are bound pro rata (i.e., each one according to his share) when they are only partial causes of the damage. The obligation of restitution in solidum should not be imposed, if it is uncertain, or if the cooperator is in good faith and the admonition would only produce harm.

n. 1784.

The order of restitution among cooperators in injury is according to the priority of the obligation of one to that of another, in the sense that one is obliged to pay all and the other is obliged only in the former’s default. This order of priority in obligation is in force when many cooperators are bound in solidum and when they cooperated in different ways (e.g., one as possessor, another as advisor, another as performer, etc.). The order generally given by moralists is as follows:

(a) the possessor is bound first of all, since he has the goods of another and the goods call for their owner;

(b) the cooperators are bound next in the following order: the originator (such as a perpetrator acting in his own name, or a mandator); the perpetrator acting in the name of another; the others who aided the commission of the act (such as advisors, flatterers, etc.); those who did not prevent or resist injustice.

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Circumstances of Restitution

n. 1786.

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.

n. 1787.

Order of Preference Among Creditors

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.

n. 1789.

The “Thing” to Be Restored

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).

n. 1790.

The “Amount” of Restitution in Certain Cases

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.

n. 1791.

The “Manner” of Making Restitution

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).

n. 1792.

Second Restitution

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.

n. 1793.

The “Time” When Restitution Must Be Made

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.

n. 1794.

Unjust Refusal to Make Restitution or Pay Bills

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.

n. 1795.

The “Place” Where Restitution Must Be Made

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.

n. 1796.

Burden of Expense or Loss When Restitution Is Sent to the Place of the Creditor

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).

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Causes Excusing From Restitution

n. 1797.

The Causes That Excuse Temporarily from Restitution

The Causes That Excuse Temporarily from Restitution.—These causes can be reduced to two, namely, physical and moral impossibility. (a) Physical impossibility exists when the debtor has not the means to pay and cannot secure them; and it excuses as long as it continues. One who is bankrupt is excused from restitution during the continuance of his insolvency; if he later becomes able to pay, it seems to some that the civil declaration of bankruptcy according to the law of the country releases him from further payment, unless his bankruptcy was fraudulent or due to culpable neglect. (b) Moral impossibility exists when the debtor has the means, but cannot pay immediately without incurring a loss of a higher order (e.g., if he pays the small sum of money, he will lose his own excellent reputation), or without suffering a greater loss in his own goods of the same order (e.g., if he pays the money, he will be reduced to starvation), or without surely bringing on a far greater evil than delay of restitution to the creditor or a third party (e.g., if a stolen weapon is returned to its owner, he will commit suicide or murder).

n. 1798.

The Causes That Excuse Permanently from Restitution

The Causes That Excuse Permanently from Restitution.—These causes can also be reduced to two general ones, namely, the cessation of the object and the termination of the obligation through the act of the creditor, or of the debtor, or of authority.

(a) Thus, the cessation of the object releases from the duty of restitution whenever the object perishes to its owner, as when it is lost by a possessor in good faith who has not been enriched by it, or even by a possessor in bad faith, if it would have been lost equally by the owner (see 1771, 1774).

(b) The termination of obligation through the act of the creditor occurs when the creditor freely and lawfully excused the debtor from payment. In some cases condonation may ordinarily be presumed, either on account of the affection of the creditor for the debtor (e.g., in case of debts owed by children to their parents) or on account of the familiar relationship between the parties and the smallness of the debt (e.g., in case of appropriation by servants or employees of some unimportant articles not kept under lock and key), or on account of the indigence of the debtor and the smallness of the damage (e.g., in case of trifling harm to goods of a wealthy person, if there was no great malice and the debtor is very poor).

(c) The termination of obligation is also effected by equivalent payment, which in certain cases is made by payment of the creditor’s creditor, or the cancellation of an equal debt owed the debtor by the creditor, and perhaps also by a gift made the creditor by the debtor and equal in value to the debt. Occult compensation by the creditor is the secret taking by him of what he is entitled to when the debtor will not give it of his own accord. This is lawful when the debt is certain, other means of recovery impossible, and the compensation not injurious; but it covers restitution, and hence the creditor cannot accept another payment from the debtor.

(d) The termination of obligation is also effected by the act of competent authority. Thus, judicial declaration frees from the duty of restitution a person who has lawfully and in good faith received certain goods as damages or award; prescription (see 1875) gives a clear title to property held by adverse possession over a certain number of years, and it frees from the duty of payment, at least in certain cases (though not in the United States); papal composition for good reasons exempts from their obligation those who owe restitution to pious causes or to church property injured by them.

n. 1800.

Excuse from Restitution on Account of Doubtfulness of Obligation

Excuse from Restitution on Account of Doubtfulness of Obligation.—(a) One who doubts positively and in good faith whether or not he did damage to another is excused from restitution if the doubt is about the fact of the damage (e.g., whether his competitor lost business) or about his own culpability (e.g., whether he circulated a calumny about his competitor); he is probably held to restitution pro rata of the doubt, if the doubt is about the responsibility of his culpable act for the damage that followed (e.g., whether his calumny or the poorness of the competitor’s wares caused the falling off in business); he is probably held to only his share, if the doubt is whether his culpable act was responsible for the whole or only a part of the damage (e.g., whether his calumny caused all the damage, in view of the fact that others were also spreading calumnies).

(b) One who doubts positively and in good faith whether the restitution owed by him has been paid (e.g., whether his fellows in calumny have paid their portions of restitution, whether he has paid a bill for goods or services received) is held to full payment by some, to part (pro rata) payment by others, to nothing by others. Some moralists think the presumption favors the creditor, others that it favors the debtor, others that it favors neither and that a compromise is the right solution.

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Some Special Cases of Restitution

n. 1802.

Special Cases

Special Cases.—There are some special cases of restitution for negative injury in thwarting another’s prospects, or for positive injury to goods of fortune, of body, of soul, or of spirit.

(a) For Frustration of Another’s Good.—Restitution is due for keeping another from a good to which he has a strict right (e.g., an office to which he has been chosen, property for which he has paid), or for using force, fraud, bribes, or other unjust means to keep another from a good to which he has a non-strict right (e.g., a position for which he has made application, a gift which another contemplates bestowing on him). The amount of restitution should be calculated according to the previous probability of success on the part of the injured party and the permanent results of the injury.

(b) For Injury Done to Goods of Fortune.—Private injuries are spoken of elsewhere (see 1762 sqq.), and now we consider only injuries that are in some way public. Commutative injustice entailing restitution to the community is committed by damage to public property, breach of contract made with the community, unjust means employed to prevent the government from obtaining its dues, unjust cooperation in any of the aforementioned acts; commutative injustice entailing reparation to individuals is committed when the transgression of a law places an undue burden on a fellow-citizen (e.g., when one unjustly escapes military or jury service and causes a substitute to be called who would not have been called otherwise, or when one unjustly evades one’s taxes and thereby certainly causes the taxes of others to be raised). If a tax law is just, it obliges in conscience, but whether as penal or preceptive, whether in virtue of legal or commutative justice, is a much debated question; and hence the question of sin and of restitution due is not easily settled. Impossibility or a general and admitted custom excuse from restitution (see 2637 sqq.).

(c) For Injury Done to Goods of Body or Personal Goods.—According to one view no restitution is due for merely personal injuries, since the damage cannot be repaired by a good of the same kind as that which was taken away (e.g., the murderer cannot give back life to his victim); but according to another view restitution is due for these injuries, since justice requires that every kind of damage be repaired as far as possible (see 1751 and 2090).

n. 1803.

Restitution for Various Kinds of Damage Done to Persons

Restitution for Various Kinds of Damage Done to Persons.—(a) For Bodily Injury by Unjust Homicide or Mutilation.—The offender (or his heirs) is obliged to restitution to the victim (or his heirs or dependents) for spiritual loss (such as death without the Sacraments), probably for personal loss (such as pain, facial disfigurement), and for real losses due to the injury (such as hospital expenses, loss of support by the widow and orphans). The spiritual loss is compensated by spiritual goods, such as suffrages for the departed, the personal loss by compensation suited to the circumstances (e.g., money employment), the real loss by payment of medical expenses, loss of time, support lost by dependents, etc. The offender is not liable for damages of which he is not the unjust cause (e.g., the alms that will be lost by poor persons on account of homicide, since they have no strict right to the alms), or the efficacious cause (e.g., the pay that will be lost by creditors on account of homicide, for as a rule the slayer cannot foresee this), nor for damages which the injured person clearly condones.

(b) For Bodily Injuries by Fornication or Adultery.—In case of fornication the offender owes restitution to the person seduced and also at times to the latter’s parents, and both sinners are bound to support their illegitimate child. The form of the compensation will depend much on circumstances, but in general it should be either marriage with the person seduced or some kind of pecuniary compensation. It should be noted that a promise to marry, even though it is canonically valid, gives no action to enforce marriage, but even an invalid engagement gives rise to action for unjust material damages, such as loss of chance to marry or loss of money spent in view of the marriage (see Canon 1017). In case of adultery the guilty party or parties are bound to make restitution to the injured husband if an illegitimate child is being reared at his expense, and also to the legitimate children for injuries to their strict rights, as in the diminished inheritance received from their parents on account of the illegitimate child. A child is not obliged to accept the word of his mother that he is illegitimate, but if he is certain about his illegitimacy, he may not take that to which he is not entitled. In restitution for fornication or adultery, care must be taken to preserve the good names of all the parties concerned.

(c) For Injuries of Soul.—In case of unjust and efficacious damage to physical goods (e.g., when one by fraud or force administers to another drugs or intoxicants that take away the use of reason or self-control, when a professor neglects his office of teaching or teaches error), restitution is certainly due for any material damages that result, and probably for the personal injury alone. In case of damage to spiritual goods, by inducement to commit sin or by dissuasion from good, restitution is due when the influence exerted was unjust (e.g., by fraud, force, threats), not when it was merely uncharitable (e.g., by advice, persuasion, request, example). Restitution for spiritual damage may be made negatively, that is, by removal of the unjust influence; but if a person who was seduced has in consequence become a hardened sinner, it seems that restitution should be made positively, that is, by counsels, requests, prayers to God, and other prudent means calculated to recall the injured party to a life of virtue.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Lawful Occupation

n. 1922.

Restitution for Occupied Goods

Restitution for Occupied Goods.—Is the occupier bound to restitution for occupied goods that were consumed (e.g., food and drink), if he afterwards becomes able to pay for them?

(a) If the occupier had no prospect at the time of ever being able to pay for what he took, he is not bound to restitution—not because of possession, since the thing has perished, nor because of the taking, since there was no onerous contract, nor because of injury, since he acted within his rights. The owner cannot complain at this, since charity obliges him to give of his own free will to one who is in supreme need and not to expect that the alms be paid back, while justice forbids that he impede the appropriation of what is needed by the person in distress. It seems, however, that a case of this character would rarely happen, and, if it did happen, the more decent thing would be to pay for what was used. Some moralists think that more probably there would be an obligation of justice to do this, since occupation is lawful only in so far as it is necessary.

(b) If the occupier had the prospect at the time of being able to pay for what he took, he is bound to restitution; for one should not occupy more than is necessary, and, if a loan suffices to tide one over a difficulty, it is not right to expect a gift. Hence, men who raid bakery shops in times of food shortage, are bound to make restitution to the bakers when able.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Judges

n. 1946.

Obligation of a Judge to Restore Goods Received in the Above-Mentioned Ways

Obligation of a Judge to Restore Goods Received in the Above-Mentioned Ways.—(a) If retention of the goods is contrary to the reasonable wishes of the person who gave them, restitution is necessary. Hence, the judge must give back money that was extorted and the payments made by private parties for the exercise of his official duties.

(b) If retention of the goods is contrary to law, restitution is also necessary. Hence, if a judge has taken a bribe, he must give it back, because the agreement is null, and he cannot lawfully keep his part of the compact by acting contrary to justice. The same is true when the law voids the contract whereby he received the goods, or when a court decree obliges him to return a free gift bestowed upon him.

(c) If retention of the goods is not contrary to the will of the giver nor to the law, restitution is not necessary. Hence, if a judge has received a pure gift and no corruption was intended or practised, he sinned in taking it, but the donation was valid and there is no obligation to return it. And even though he has taken a bribe, and in consideration of it has acted against justice, it seems there is no natural obligation to make restitution to the party who gave the bribe, since the latter has received a consideration for his payment, but the judge is held to indemnify the injured party.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Defendants

n. 1983.

Jail-Breaking and Restitution

Jail-Breaking and Restitution.—If one does not sin by jail-breaking, is one bound to restitution for the damages connected with the escape?

(a) If the damages are not caused by, but only follow accidentally on the flight (e.g., escape of other prisoners, dismissal of guards), there is no obligation to make restitution for them; for the flight would not be the efficacious or the unjust cause of such damages.

(b) If the damages result from the flight as from their efficacious and unjust cause, there is an obligation of restitution (see 1763), as when a prisoner, in order to escape, does needless damage, or damage out of all proportion to the evil from which he seeks to escape. But ordinary property damage, such as a hole cut in a wall, does not seem unjust, if there is no other way to get out.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Witnesses

n. 1992.

Obligation of Witness to Make Restitution

Obligation of Witness to Make Restitution.—The obligations of restitution by a witness on account of failure to perform his duties properly are as follows:

(a) if the witness has not sinned against commutative justice, there is no obligation of restitution (see 1753). Hence, if he has evaded testimony to which he was bound in legal justice or charity alone, he is guilty of sin, but he is not held to restitution. Similarly, if he has given false testimony and thereby deprived the State of a fine under a penal law, or saved a guilty party from punishment, he has sinned against legal justice, but is not obliged to make good the fine or pay damages;

(b) if the witness has sinned against commutative justice, materially but not formally, he is not the gravely guilty cause of damage, and hence is not obliged from justice (but there may be an obligation from charity) to make restitution (see 1764). But if he perceives that his testimony was materially or venially unjust and will cause serious damage, he is obliged to recall his testimony, or in some other suitable way prevent the damage, if this is possible (see 1769);

(c) if the witness has sinned against commutative justice formally, he is the efficacious and culpable cause of the damage that results, and hence is bound to restitution, unless there is an excusing cause (see 1797 sqq.). Thus, if false testimony, or testimony about matters which the witness had no right to disclose, has led to the death sentence for an innocent man, the witness who gave that testimony must retract, even at the risk of his own life; for in equal danger the rights of the innocent have the preference. Again, if Titus by false testimony has saved Balbus from paying damages for injury done to public property, Titus must make restitution for the loss caused, if Balbus will not make reparation.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Lawyers

n. 2008.

When a Lawyer Is Bound to Restitution

When a Lawyer Is Bound to Restitution.—(a) Unjust damage obliges to restitution (see 1763), and hence a lawyer must indemnify his client or the opposite party for the losses either one suffers through his unjust conduct. The client has a right to restitution if he was put to unnecessary expense because his lawyer did not tell him the case was hopeless or too risky, or if he lost a case because the lawyer was very incompetent or negligent or helped the opposite party, or if he was injured in his reputation or prospects by the violation of his confidences. The opposite party is entitled to restitution if he lost a right or was condemned because the lawyer unjustly took the case against him, or if he suffered other injuries because the lawyer employed foul means to his disadvantage. If a lawyer acts as the mandatary of his client in the use of injustice, the duty of restitution rests primarily on the client and secondarily on the lawyer (see 1783); if the lawyer alone is guilty, he is responsible for all the damage done. There is no duty of restitution if only legal justice is violated (e.g., if some deception is practised in order to win for the side that is in the right), or if charity is wronged (e.g., if one refuses to take the case of a person who is in need).

(b) Unjust possession also obliges to restitution (see 1770), and hence a lawyer who appropriates goods of his client against the latter’s right, or who charges exorbitant rates for his services, or who drags out a case for lucre’s sake, or who has not refunded when he withdrew from a case, should restore his ill-gotten goods. If the amount of a fee is settled by law, an attorney who takes more than the legal sum does not necessarily incur the duty of restitution. All will depend on the character of the law, whether it is penal or preceptive, and if preceptive, whether it obliges in virtue of legal or of commutative justice.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Contumely

n. 2021.

The Duty of Making Restitution for Contumely

The Duty of Making Restitution for Contumely.—(a) If contumely is not contrary to commutative justice, there is no duty of restitution. Hence, dishonor that is purely negative, such as the refusal to uncover on meeting a clergyman, does not oblige one to make restitution, for the omission is contrary to the virtue of observance or reverence but not to commutative justice. The case would be different, however, if negative dishonor were so marked or noticeable as to be equivalent to positive disrespect, as when at the entrance of a distinguished personage all in the room arise except one man who remains seated and gives a bitter look at the newcomer.

(b) If contumely is contrary to commutative justice, restitution is due. All agree that commutative justice is violated when contumely becomes vilification, or when an insult is committed in the presence of onlookers with the purpose of making the offended person seem contemptible in their eyes. But there are two opinions about the case when contumely is merely revilement, or an insult offered when there are no others present and the purpose is to make the offended person appear vile in his own eyes.

n. 2026.

Cessation of Obligation of Restitution

Cessation of Obligation of Restitution.—The obligation of restitution for contumely ceases in certain cases (see 1797, 1798). (a) Thus, impossibility excuses, as when one cannot make reparation without renewing an old feud that has been buried and forgotten. (b) Forgiveness by the offended person excuses. The offended party forgives the debt expressly when he says or shows that he does not care to have an apology; he forgives implicitly, when he retaliates by an equally injurious action, defends himself by retorting equal contumely on his adversary, or obtains equivalent satisfaction from a court of justice.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Restitution for Defamation

n. 2085.

Restitution for Defamation

Restitution for Defamation.—Restitution for injuries committed is necessary (see 1759), and hence it is required of the defamer. In the language of Scripture (Prov., xiii. 13), he that speaks ill of his neighbor obliges himself for the future. The two injuries to be repaired are: (a) the unjust taking, that is, the fame of which he has deprived his neighbor; (b) the unjust damage, that is, the detriment to fame or the losses that resulted from the defamation (such as failure to obtain or keep a position, decline of business, etc., which were foreseen at least in a confused manner). It is clear there is no duty of restitution, if in spite of talk against a neighbor he suffered no loss (e.g., if the listeners gave no heed or credence to the talk).

Vol. II, Pt. II, Q. II, Art. 5. The Quasi-integral…, Sinfulness of Simony

n. 2340.

Restitution of the Temporal Price Received for a Spiritual Thing

Restitution of the Temporal Price Received for a Spiritual Thing.—(a) If the simoniacal contract is semi-real (that is, if the spiritual consideration has not been received), the price must be restored; for we have then the case of an immoral and unexecuted contract (see 1878 d). (b) If the simoniacal contract is real (that is, if the spiritual consideration has been received), the price should be given back; for the case then is one of commutative justice, a temporal price being taken for a thing (e.g., a blessing) that has no temporal price, or for a service that one was bound to give gratis (e.g., parochial sermon by the pastor). But if a service was not obligatory, it is held by some that there is no certain duty of restitution, if the spiritual thing cannot be restored (e.g., when one received a stipend for a Mass of bination or demanded an excessive fee for a sacred function).

n. 2341.

Restitution of the Temporal Price Received for Temporal Things Annexed to Spirituals

Restitution of the Temporal Price Received for Temporal Things Annexed to Spirituals.—Restitution is obligatory as follows: (a) when commutative justice is violated, as when one charges for a blessed candle or rosary in excess of its market value or just price, or when by fear or force one compels another to exchange a chalice for a ciborium; (b) when law or judicial sentence imposes restitution as a penalty for an offense, as when for money one has resigned one’s benefice in favor of another person.

n. 2342.

Circumstances of Restitution for Simony

Circumstances of Restitution for Simony.—(a) The Time for Restitution.—If simony is against natural law, restitution is due before sentence; if against ecclesiastical law only, restitution is due only after sentence.

(b) The Person to Whom Restitution Is to Be Made.—Satisfaction should be given to the owner, or injured party (e.g., to the person who was charged for a blessing), or, if this is impossible, to the poor or pious causes. The revenues derived from a benefice simoniacally obtained should be restored to the church to which the benefice belongs, unless this is advantageous to the guilty parties, or probably to charity, or religion, or the successor in the benefice.

(c) Excuses from Restitution.—Impossibility, condonation or the permission of the Church, express or presumed, excuses from the duty of restitution.

…and 2 more passages — all of them are listed on the topic page.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 35 passages

Vol. I, On the First Precept of th…, VIII. On Simony

n. 522.

Is the spiritual thing acquired simoniacally to be restored? - R. Affirmative as to benefices; thus the common and certain opinion of the doctors. The reason is that the laws, as a penalty of the delict, stand in the way so that the receiver cannot acquire ownership either of the price or of the benefice received. And since acquisition of the benefice is void, by that very fact ownership of the fruits cannot be acquired either; and therefore these too are to be restored, if they were received in bad faith. But these are to be restored to the church to which the benefice pertains. C. 11, de Simonia, provided that those who committed the simony receive no advantage from this. But it is probable that they can be "spent in alms" for the poor. S. Th. 2. 2, q. 32, a. 7, or returned to the successor in the benefice, or "converted to pious uses," S. Th. 2. 2, q. 62, a. 5 ad 2. A composition can also be made with the Pontiff concerning the said fruits. Received in bad faith; because someone does not seem bound also to restore fruits received in good faith, except insofar as he had become richer, and therefore only those extant. S. Th. 2. 2, q. 100, a. 6 ad 3. And whether the discussion is of a simoniac in good faith or even of a simoniac in bad faith, it is also very probable that fruits received in view of the stole are not to be restored, because those fruits are not given as revenues of the benefice, but as a stipend of office.

R. Negative as to the rest, although a judge can impose restitution as a penalty of the crime. Thus the common opinion with Schmalz., l. 5, t. 3, n. 284. The reason is not only because certain things cannot be restored, for example, sacred order; but also because in order that the transfer of a spiritual thing, for example, of holy relics, be valid, by divine law nothing more is required than power in one person of transferring ownership of the thing, and in the other of receiving it. But unless from elsewhere there is a defect in one or the other, this power is present in both as to the spiritual thing. Therefore. But if the transfer is valid by divine law, it will also be valid by human law, since by this, scarcely anything except simoniacal provisions of benefices are decreed void. L. 113, 116.

Vol. I, On the Fourth Precept of t…, I. Obligations of Children Toward Parents

n. 667.

What is paternal power? - Paternal power is the complex of rights of parents over children, and it arises from a twofold cause: 1. because children have had life from them; 2. because parents must educate them fittingly. C. A. 147; C. L. 137. It is from Natural and Positive Law at the same time, positive law defining and determining natural right. For the rights of parents over children flow from natural and civil law. By Natural Law, piety is owed to parents, whether legitimate or illegitimate, namely to father and mother, and it belongs to them equally and perpetually as to love and honor, but not however as to obedience after the son has become major, or has been emancipated. C. I. 220. Besides this, power belongs to parents as to those things which pertain to the spiritual salvation of children. And this also belongs equally to each, indeed also to grandfather and grandmother. But if they disagree among themselves, he prevails who consults the salvation of the child. And, when the father has died, if the mother as tutor and the paternal grandmother disagree, the latter will be stronger. Benedict XIV, Ep. Probe te, §§ 20, 21, 23; Ep. Postremo mense, §§ 16, 17; C. Ex litteris 2, de Conv. infid. - The natural power of parents in those things which pertain to the salvation of the soul ends when infancy has passed; in those things which pertain to the choice of state it ends at puberty, C. Cum virum 12, de Regul.; C. A. 148; in those things which pertain to domestic care and discipline it ends by emancipation. But in those things which regard the sustenance of the body and generation of offspring, children are their own masters. And as to entering marriage, they commonly are bound only to seek the counsel of parents. L. 335.

But emancipation is naturally had when the son of the family has already grown sufficiently by age, so that he himself can now be father of a family, and by himself duly consider and oblige himself concerning those things which pertain to his own person and to his exterior goods. C. 11, 12, de Regul.; S. Th. 4 D. 27, q. 2, a. 2; D. 38, q. 1, a. 1, q. ult., sol. 3; 2. 2, q. 104, a. 5; S., q. 43, a. 2; q. 58, a. 5; St. Basil the Great, Epist. 276, Migne, vol. 32, col. 1011.

By Common Law paternal power belongs only to the father of the family, and it was per se perpetual. Inst. 1, l. 1, t. 9, §§ 2, 3; t. 12; lib. 1, tit. 6, ff., §§ 3-5, de Patr. pot.; l. 8, t. 46, C.; C. 2, de Convers. infid. But from the More Recent Laws it belongs also to the mother of the family. C. I. 220; C. G. 372; C. B. 1634, 1684, 1685; C. L. 138; C. He. 274. But the mother does not use it as long as the father uses it, to whom it principally belongs. C. I. 46, 220, 230, 331; C. G. 141, 373, 507; C. A. 144, 147; C. H. 154; C. B. 1634; C. L. 139, 155. Moreover it belongs over legitimate and natural children, over natural children acknowledged, over natural children acknowledged and legitimated, and at least in some way also over adoptive children. C. I. 66, 184, 194, 210, 211, 220; C. H. 154; C. A. 183; C. B. 1306, 1757, 1765; C. L. 166. Cf. here n. 663.

Paternal power is exercised by the father, and when he has died or is absent, by the mother with equal right. C. I. 46, 220, 231; C. H. 154; C. G. 141, 390; C. A. 144, 147; C. B. 1627, 1684; C. He. 274. Yet a father dying has the right to prescribe to the surviving mother the manner he wishes to be observed in the education of the children and the administration of goods. C. I. 235, 1059. Cf. C. G. 391; C. B. 1852 seqq. If the mother enters second nuptials, it will be in the power of the family Council or pupilary Judge to permit or remove guardianship from her. C. I. 237; C. G. 395; C. A. 255. When parents are lacking, and a tutor has not been named, guardianship by law belongs to the paternal grandfather; and, he being lacking, to the maternal grandfather. C. I. 244; C. B. 1776.

Moreover paternal power is exercised partly over the persons, partly over the things of children. C. B. 1627.

Paternal Power is exercised, 1. over persons by the faculty which the father has of retaining the son at home, C. He. 273, unless the son wishes voluntarily to give his name to military service. C. I. 221; C. G. 374; by the faculty which the father has of moderately correcting and punishing a disorderly son, C. He. 275; also of barring him from his own house, and even having recourse, where there is need, to the tribunal, and of placing him in another house of education or correction. C. I. 222; C. H. 155, 156; C. G. 375 seqq.; C. A. 145; C. B. 1631, 1632; C. L. 143; L. 3, de Patr. pot., C. Moreover the son is prohibited without the consent of parents from giving himself into adoption, C. I. 208; C. G. 346; C. A. 181; C. B. 1747, and from entering marriage. C. I. 63; C. G. 148; C. A. 49, 153; C. H. 1305; C. L. 1058, 1061; C. He. 98. But when the mother dissents, the consent of the father suffices. C. I.; C. G., ll. cc.; C. He. 274. Finally the right of appointing a tutor belongs to the last surviving parent. C. I. 242; C. G. 397; C. B. 1777; C. He. 274.

Excepting marriage, which before puberty is null from canon law, as to other acts and contracts sons of a family who are minors are only naturally obligated; and if in due time they do not seek restitution in full, they can also be civilly obligated, and those who contract with them are naturally and civilly obligated. Therefore, if they have entered betrothals, if they have emitted a vow, they are bound by the betrothals and by the vow. If they have donated anything, they transfer dominion to the recipient; and if they themselves receive something as a gift, they licitly acquire and retain dominion. C. I., de Desp. impub.; C. I. 1304; C. G. 1314; C. H. 160, 161; C. A. 244, 246; C. B. 106; C. L. 98, 99; Inst. 1, l. 3, t. 19, § 6; S. Th. 2. 2, q. 88, a. 8; 4 D. 27, q. 2, a. 2; L. l. 3, n. 918; Lugo, de Iust., d. 22, nn. 228, 295, 300.

But although a minor validly contracts, from the More Recent Laws he does not contract firmly if various prescriptions of those laws are not observed, and then restitution in full is conceded to them, which also holds in the forum of conscience, since a law of this sort is definitive of right and just; since it is for protecting good morals, for the peace and good of families, and for the common good. C. G. 2012; C. I. 317, 319, 1899.

From C. I. a minor is restored because he is a minor, and an action of nullity is admitted: 1. If a non-emancipated minor performed an act by himself without the intervention of the father or his legitimate representative. 2. If an emancipated minor performed by himself an act for which the law requires the assistance of a curator. 3. When the formalities constituted for certain acts by special dispositions of law are not observed. But an action of nullity is not admitted: 1. If the minor by evil art and deceit concealed his condition as a minor. 2. If the matter concerns an obligation arising from delict or quasi-delict. 3. If it is proved that what was paid was turned to the convenience and utility of the minor. C. I. 1300, 1303, 1305, 1306, 1307, 1899.

From C. G. a minor is restored because he was harmed, and an action of nullity is admitted if the prescriptions of the law in contracts of minors were not observed. Rescission is not admitted: 1. If the harm happened from a chance event. 2. If a minor exercises commerce or some art, as to contracts entered by reason of his commerce or art. 3. If the matter concerns an obligation flowing from delict or quasi-delict. 4. If it is proved that what was paid went to their convenience and utility. C. G. 1304, 1305, 1306, 1308, 1310, 1312, 2012; L. l. 3, nn. 514, 918. Cf. Troplong, della Vendita, cap. 2, art. 1594, num. 166 seqq.

From C. H., the formalities of law not having been observed, the contract of a minor becomes liable to rescission. But he is not bound to restitution except insofar as he became richer by the thing received. C. H. 317, 420, 1163, 1304, 1764, 1765. From C. A., in general a minor indeed cannot be validly obligated without the consent of the father and the other prescriptions of the law. Yet he can freely dispose of things acquired by his own industry, and of others given to him for his own use after puberty has been attained. C. A. 151, 152, 244, 246, 248. From C. B., a minor needs the consent of his representative for any declaration of will whatever, unless this procures a juridical advantage for him, or unless the matter concerns things left to his free disposition. Without the aforesaid consent of the representative, the act can be rescinded. C. B. 108 seqq. From C. L. 297 seqq., the acts of a minor are null if they are made without due authority. But they themselves cannot use this nullity as to obligations upon things of their own art or profession, or if they use deceit so that they may be held as majors.

The power of the father is exercised, 2. over the things of children. From common Law the son was at first a thing of the father of the family; whatever he acquired belonged to the father. Afterwards peculium was recognized. Peculium is any good whatever proper to the son, separated from paternal goods. It is fourfold: 1. Castrense, acquired by military service or on the occasion of military service; and this whole thing, in perfect dominion, belongs to the son. Yet one below puberty does not have its administration.

Quasi-castrense, acquired by the profession of sciences or liberal arts, or by some civil office, for example, of judge, advocate, physician, teacher, from an ecclesiastical office or benefice; and the perfect dominion of this also belongs to the son. Yet administration belongs to the father if he himself is below puberty.
Adventitious, which comes to the son from elsewhere than from paternal goods, and not by regard for the father, for example, what comes to the same son from the mother, from the maternal line, or by regard for the mother, or what is acquired by his own industry and labor, by the liberality of others, by chance and fortune. The dominion of ownership belongs to the son; the usufruct and administration of this peculium belongs to the father as long as he lives. Therefore by Roman Law the father has the usufruct of all these goods of the son; and this usufruct ends only by the death of the father, otherwise than is had by More Recent Law.
Profectitious, which either is acquired from paternal goods, or has been donated to the son by regard for the father. And this whole thing belongs to the father, in ownership, usufruct, and administration. Inst. 1, l. 2, t. 9, §§ 1, 2; l. 3, t. 29; Lugo, d. 5, n. 23 seqq. The father can dispose of adventitious goods if they are consumable, with the burden however of restitution. If the son trades outside the father's house from goods other than paternal goods, the gain is adventitious. If he labors in the paternal house and is fed by the father, or trades from the father's goods, it is profectitious. "If a son trades with the money of the father, either received as a loan or secretly stolen, at his own risk, so that he seriously determines to preserve the father unharmed in any event whatever, it is certain from the common opinion of all cited by Laymann, l. 3, tr. 4, c. 8, n. 12, that the whole gain pertains to the ownership of the son as adventitious peculium. Why is this? Because although he obtains the whole gain by the money of the father, he obtains it in such a way that the whole gain is derived not from the money of the father, sterile of its own nature, but from the industry of the son, which renders the money fruitful." Ithur., Cas. 3, n. 6; L. 488.

The father of the family and the son of the family are held as one person. Since therefore no one can contract with himself, if they contract, the pact is civilly void. Civilly, for naturally they are mutually obligated and obligate. Inst. 1, l. 3, t. 19, § 6. A son of the family, not even with the father consenting, can make a testament concerning adventitious or profectitious peculium; but he can, even against the father's will, concerning castrense or quasi-castrense peculium. Inst. 1, l. 2, t. 12.

From More Recent Laws, minors are held by law incapable of protecting themselves and their own goods. Hence as to each, he with whom paternal power is represents them. C. B. 1630; C. L. 98, 100; C. He. 279.

The administration of all goods of minor children is in the hands of the father or mother, or tutor, who must supply the incapacity or lack of skill of the children until they become majors or obtain emancipation. Exceptions must be made, from C. B. 1638; C. L. 147; C. He. 294; C. I. 224, of goods given to the son with exclusion from this administration of the father. Cf. C. L. 146, 147. Majors are altogether free in managing their own affairs, unless in some case the law specially forbids this to them, and therefore they have full administration of their own goods; but emancipated persons have it only limited. C. I. 323, 310 seqq.; C. G. 488, 476 seqq.; C. A. 149, 187, 251. Cf. C. L. 305 seqq., 311.

Hence he who exercises paternal power manages the affairs of the son. C. I. 224, 242; C. G. 389; C. A. 149, 152. He, not the son, acts in judgment, enters upon inheritances coming to the son after an inventory has been made, accepts donations, C. I. 226, 1059; C. A. 205, 222 seqq., 243, and administers his goods, C. I. 224; C. G. 389; C. H. 159; C. A. 149. But goods, whether immovable or movable, excepting those which cannot be preserved by being preserved or become worse, he cannot alienate, bind by mortgage or pledge, nor likewise receive a loan in the name of the son, nor exercise other acts which exceed acts of simple administration, except from a cause of necessity or evident utility and by decree of the civil tribunal. C. I. 224, 225; C. H. 164; C. G. 389; C. B. 1640 seqq.; C. L. 150; C. He. 290, 299, 300.

The father, or mother exercising paternal power, has the usufruct of those things which come to the son by succession, donation, or another lucrative title. C. I. 228, 229, 231; C. G. 384, 386; C. H. 160; C. B. 1640, 1685; C. He. 294, unless the goods were left to the son by testament, or given by donation, on this condition, that the usufruct not pertain to the parents, C. I. 229; C. G. 387; C. B. 1651; or were left to the son by testament, or given by donation for undertaking some course of life, art, or profession, C. I. 229; or for his education and instruction, C. H. 162; or unless, against the will of the parents, the son accepted the donation or legacy, or entered upon the inheritance, C. I. 229. Likewise excluded from that usufruct are those things which the son acquired for himself by labor, profession, or separate industry, C. I. 229; C. G. 387; C. B. 1650, 1651, and the goods of the succession of a son as to which parents have been declared unworthy. C. I. 728; C. G. 730.

To this usufruct there inheres the obligation of feeding, sustaining, educating, and instructing the children. C. I. 230; C. G. 385; C. B. 1602, 1603, 1606, 1656; C. L. 148; C. He. 293. Neither father nor mother has the usufruct of the goods of natural children. They can only administer their goods, but with the burden of rendering an account also concerning the fruits. Gousset on a. 384, C. G.; C. I. 184. Cf. C. L. 166, 167.

From C. A. 149, 150, 151, 154, all goods, administration excepted, simply pertain to the son; yet the father can deduct the expenses of education from the revenues. From C. H. 161, goods acquired by children from the goods of the same parents simply pertain to the parents. From the same C. H. 160, the usufruct even of those goods which the son acquired by his own labor and industry pertains to the parent exercising paternal power. From C. L. 145, 146, 147, the usufruct of goods which a son of the family acquires by his labor, his industry, his means, or by any other gratuitous title whatever, pertains to the parents, unless they were given with exclusion of this usufruct, or the children acquire by arms, letters, liberal arts, or acquire by their own labor and industry, but live from themselves with the father's permission.

Usufruct of this sort ends by the emancipation of the son, or by death, or when minority or legitimate age has been completed; by the widowed father or mother passing to other nuptials; if the father abuses paternal power, either by not caring for the obligations imposed or by administering goods badly, with a sentence of the tribunal added; and likewise it ceases with respect to the spouse by whose fault divorce has legally been pronounced. C. I. 156, 228, 232, 233; C. G. 384, 386; C. H. 167, 172; C. B. 1666, 1673, 1679, 1680; C. He. 297 seqq. From C. B. 1661, 1662, usufruct also has an end by the marriage of the son, and by renunciation of the father. From C. G. 384, 386, usufruct is conceded to the father, and after he has died to the mother remaining unmarried, up to the eighteenth year of the children, or their emancipation. Cf. C. L. 149; C. He. 274, 292.

But when the son has become a major, those things which have been done by the parents, if they were done according to law, remain ratified; but otherwise they can be made void by him. And if meanwhile a conflict arises as to goods between father and son under paternal power, the latter will be able to have recourse to the tribunal. C. I. 224, 227, 1304; C. G. 1314; C. H. 165; C. A. 271; C. B. 1667, 1668; C. L. 153; L. 488, 543, 544; Gousset 682; C. He. 283, 284, 297 seqq.

Paternal power is dissolved by the death of the father or son, C. H. 167; C. L. 170; C. He. 274; by adoption of the son, C. H. 167; C. B. 1757, 1765; C. A. 183; by emancipation of the son, C. I. 220, 311; C. G. 372, 476-479; C. L. 170; C. H. 167; C. A. 172, 252. But a son is emancipated by the law itself through marriage, C. I. 310; C. G. 476; C. L. 304; C. He. 14, otherwise from C. A. 175. Emancipation is a legitimate act by which a father dismisses his minor son from his power, so that he is made his own master. Emancipation cannot be made before the completed eighteenth year, C. I. 311; C. He. 15. It is dissolved besides by majority of age, C. I. 220;

C. G. 372; C. A. 172; C. L. 170. Cf. here 664. From C. B. 386, which does not admit emancipation, declaration of majority can be had in the eighteenth year of age. It is likewise dissolved if the father abuses paternal power, with a sentence for the crime added. C. I. Poen. 392; C. H. 171; C. B. 1666, 1680; C. A. 177, 178. Paternal power ought to consist in piety, not in atrocity. If the mother survives, she does not simply lose it, although she passes to other nuptials. Yet in this case, from C. I. 237, she can be removed from the administration of the son's goods. From C. B. 1697, a mother passing to other nuptials loses paternal power in part. Cf. C. L. 155 seqq.; C. He. 286. When parents are interdicted, insane, or mad, their paternal power remains suspended. C. I. 220, 229 seqq.; C. A. 179; C. B. 1676 seqq.

When paternal power has been dissolved, the son of the family becomes his own master. But whether he is his own master or is still subject to paternal power, the father of the family can usefully contract with him, and from the eighteenth year of age he can make a testament. C. I. 763, 1107; C. A. 271, 596; at the sixteenth year, but in a limited way, from C. G. 903, 904. Inst. 1, l. 1, t. 12.

Vol. I, On the Fourth Precept of t…, III. Obligations of Spouses

n. 677.

What are the rights and obligations of spouses concerning goods? - If Natural Law is considered, marital society does not prevent both husband and wife from retaining ownership, usufruct, and administration even of goods which they had before marriage, and which they acquire during marriage. Yet they must concur for expenses necessarily to be sustained on account of common burdens. Moreover, it is fitting that the husband either have the whole administration of goods, or certainly assist the wife as much as is necessary for supplying her weakness.

But if positive Law is considered, the husband's power in this matter is broader. Hence by positive Law various goods of the wife are distinguished. S. Th. 2. 2, q. 57, a. 4.

Some goods of the wife are dotal, whose fruits the husband enjoys for sustaining the burdens of marriage; others are paraphernal, namely beyond the dowry, which the wife has beyond the dowry, and which she specially reserves to herself; others are common, which by pacts of the spouses or by determination of law are brought into a certain society. Before entering marriage, spouses can determine under what conditions their goods are to be subjected, with certain statutes of the law observed. If they have omitted to do this, the law will supply.

From Roman Law: The wife has direct dominion of her dowry, but the husband has usufruct and administration. When the husband has died, she is preferred to all personal creditors of the husband, and even during life she can juridically seek the dowry again if she fears lest the husband become unable to restore it. If the dowry consists in money, or in other things consumable by use, or in appraised things handed over, full dominion of the dowry is indeed attributed to the husband, but with the obligation of restoring the value, dominion being transferred for the wife into all goods of the husband according to the rate or quota of her dowry. The wife has full dominion and administration of paraphernal goods, so that concerning these the husband, with her unwilling, can dispose of nothing. Hence as to these she in no way depends upon the husband.

The ownership and utility of common goods pertain to each spouse; but administration of the same pertains to the husband alone. But this community of goods can admit various conditions or restrictions, and therefore attention must be given to the various dispositions of places. Gury 549; Elbel 69; L. 489; Troplong, della Prescrizione, c. 3, n. 483 seqq.

From More Recent Law: In the first place we can distinguish goods of the wife, goods of the husband, and common goods. As to goods of the wife, these likewise are either dotal or extradotal, or paraphernal. Dowry is goods brought to the husband for sustaining the burdens of marriage. But any goods whatever of the wife not constituted as dowry are held as paraphernal. C. I. 1388, 1425; C. G. 1540, 1575; C. A. 1218.

That there be dowry it is necessary: 1. that it was expressly constituted by this name, C. I. 1388; C. H. 1336. Therefore those things which are donated to the woman by contract of marriage are not dotal, unless something else has expressly been provided. But it is otherwise from C. G. 1541. Moreover, dowry can comprehend all goods, even future goods. C. I. 1389; C. G. 1542; C. A. 1218, 1227; C. H. 1336, 1337. 2. That an instrument be drawn up by a notary, and, if the dowry is constituted by the spouses themselves, before marriage. C. I. 1382, 1391; C. G. 1394. For after marriage dowry can neither be constituted nor increased by them. C. I. 1341; C. H. 1338; and from C. G. 1543, not by others either. Cf. C. A. 1225; C. H. 1344. 3. That nuptials have been entered from Civil Law. L. 3, de Iure dot.; C. I. 93; C. G. 165; C. A. 44; C. H. 42.

He who constitutes a dowry must furnish it from his own goods, even if the woman does not lack her own goods. C. I. 1392, 1393, 1394, 1395; C. G. 1544, 1545, 1546; C. A. 1224. Cf. C. H. 1340, 1341; and he furnishes security against eviction. C. I. 1396; C. G. 1547. But the husband is not bound to surety for the dowry unless he is obligated to it by agreement made, or is driven to it by sentence of the judge, if the dowry is exposed to danger, and the dowry was constituted by him who, if it were lacking, would be compelled to furnish support to the dowered woman. C. I. 1400; C. G. 1550, 1563; C. A. 1245. Cf. C. H. 1345, 1349, 1358.

Of those things which are given by reason of dowry, some pass into the full dominion of the husband, others do not, and constitute a permanent dowry. Things which are consumed by use pass into the full dominion of the husband, C. A. 1227; things, whether movable or immovable, which are given to him in payment, C. I. 1403; C. G. 1553; movable things, if they were given appraised, C. I. 1401; C. G. 1551; not likewise immovable things, unless this was openly expressed. C. I. 1402; C. G. 1551; C. A. 1228. From C. H. 1346, if nothing is determined in the marriage contract, the wife preserves dominion of all her dotal goods. Cf. C. B. 1227, 1228.

Of those goods which constitute a permanent dowry, natural and direct dominion remains with the wife; civil and useful dominion passes to the husband. C. A. 1227, 1228, 1230. Therefore, by force of the natural and direct dominion of the wife, the increase or damage of the dowry will belong to the wife. By force of the civil and useful dominion of the husband, the husband has administration and usufruct of dotal goods; whence he administers dotal goods as his own, acts in judgment for them, C. I. 1339; C. G. 1549; C. H. 1357, 1360, and all things which are contained under the name of fruits are his from the marriage entered, C. I. 1399; C. G. 1549; C. A. 1227; and if counted money was promised, interest by the law itself is owed to him, although delay for payment had been stipulated. C. I. 1397; C. G. 1548. But the husband must furnish that diligence in administering dotal things which he furnishes in his own things, and he must fulfill all obligations of a usufructuary, C. I. 1408; C. G. 1562. But he is bound to use the fruits for feeding the family, for this is why the fruits are assigned to him, namely for bearing matrimonial burdens.

A woman can obtain separation of dotal goods by the office of the judge if the dowry is in danger, or the affairs of the husband are turning to evil, or she has been judicially separated from him. C. I. 1418; C. G. 1563. When this has been obtained, she herself, in place of the husband, administers the dotal goods, C. I. 1424; C. G. 1449; C. H. 225, 1365; but together with the husband she must provide for domestic necessities and for the instruction of the children. C. I. 1423; C. G. 1448. Cf. C. A. 1241, 1263. It can be established in the marriage contract: 1. that the wife receive each year a part of the fruits for small expenses, C. I. 1399; C. G. 1549; 2. that the surviving spouse receive some gain beyond the dowry, with the legitimate portion of the children preserved. C. I. 1398; L. l. 3, n. 539.

Dotal goods regularly, while marriage remains, cannot be alienated, and an alienation made can be revoked even by the husband himself who consented to the alienation. C. I. 1407; C. G. 1560. Dotal goods, namely all from C. I. 1405, but only immovables from C. G. 1554. Regularly; for they can be alienated from a grave cause of necessity or utility, by decree of the tribunal and consent of each spouse, C. I. 1405; C. G. 1558; C. H. 1358 seqq.; or if alienation was permitted in the marriage contract itself. C. I. 1404; C. G. 1557. They cannot be alienated for any cause whatever from C. I. 1405, which distinguishes nothing, except the cause of placing some child from C. G. 1556. Alienation, moreover, also comprehends exchanges, servitudes, and mortgages. C. I. 1404, 1405; cf. C. G. 1554, 1559. While marriage remains; therefore also after separation from C. I. 1405; cf. C. G. 1449. But if, while marriage remains, a woman has legitimately contracted debt, or any obligation whatever, after the marriage has been dissolved even dotal goods are bound to creditors from C. I. 1407; but otherwise from C. G. 1558, 1560. Cf. C. A. 1260.

When the marriage has been dissolved, the dowry ceases and must be restored. The dowry must be restored to the wife, or to her heirs. C. A. 1229; C. H. 1365. Things whose civil and useful dominion only was in the hands of the husband must be restored immediately in their own species, as they then are. C. I. 1409, 1411, 1412; C. G. 1564, 1566, 1567; C. H. 1367; and if by the fault of the husband they have become worse, the loss is charged to him. C. I. 1408; C. G. 1562; C. H. 1360, 1375. But of things of which the husband had full dominion, only the price must be restored within a year. C. I. 1401, 1410; C. G. 1551, 1565; C. H. 1347, 1366, 1370. From these the woman can retain for herself linens and those things necessary for her ordinary use, with their actual price deducted, if, after an appraisal of the same had been made, they were first given. C. I. 1411; C. G. 1566. Cf. C. H. 1384.

Besides this, the fruits of the last year of marriage are to be restored, according to the proportion of time. The year is computed from the anniversary day of the marriage celebrated. But the widow can according to her judgment either demand these fruits, or support for the whole year of mourning. Besides, during this year housing and mourning clothes are owed to her. C. I. 1415, 1416; C. G. 1570, 1571; only mourning clothes, C. H. 1879. Cf. C. A. 1242, 1243. Finally, when the marriage has been dissolved, gains also or dotal increases are owed to the surviving spouse from the goods of the deceased, if a pact concerning them was present in the marriage contract. C. I. 1398.

Paraphernal or extradotal goods are those which the wife reserves to herself outside the dowry. C. H. 1381. These are the wife's by full right, and therefore she administers them and enjoys their usufruct. C. I. 1427; C. G. 1576; C. H. 1382. Yet she cannot alienate immovables, nor stand in judgment for them without the express consent of the husband, or, with the husband resisting, without sentence of the tribunal. C. I. 134, 136; C. G. 215, 217, 1576, 1538; C. H. 1387; cf. C. A. 91. The same must be said from C. G. 1536, if the wife is altogether separated in goods. But if the husband administers them from the express or tacit mandate of the wife and receives the fruits, he must restore only the fruits which then exist when the woman asks, or dies; but he must restore all the fruits which he received if the condition was added to the mandate that he render accounts of the fruits, or if the woman opposed herself at least by an extrajudicial act. C. I. 1427 seqq.; C. G. 1576 seqq. But from C. H. 1384, 1389 seqq., if paraphernal goods are handed over by the wife to the husband to be administered, they are then equated with dotal goods, whose dominion remains in the hands of the wife. From C. A. 1238, 1239, unless the wife opposes herself, by presumption of law the administration of the wife's free patrimony is judged to have been entrusted to the husband as legitimate procurator. But he is responsible only for the substance of the thing, or for the capital; he is not bound to give an account of the fruits received, unless this was expressly agreed.

To paraphernal goods belong, and they are the wife's, those goods which, during marriage, she acquires from her own goods, or from singular industry, or from her own extraordinary labor, especially if she exercises commerce in her own name, or also by subtracting something from what has been conceded to her for food, clothing, recreation, etc.; and also those things which were given to her with the express condition that they not fall to the husband. C. A. 1237; L. l. 3, n. 541.

As to the goods of the husband. The wife has no dominion over the goods of the husband. But since the wife is the companion of the husband, and the husband must feed the wife according to her condition, the wife can by her own right take for herself those things which are necessary to her for this reason. Lugo, de Iust. et Iur., d. 16, n. 72; Lessius, de Iust. et Iur., l. 2, c. 12, n. 85. And if by received custom of the region it is accepted that the wife spend something from the goods of the husband, she can also do this. Lugo, l. c. Therefore the wife can take not only those things which are necessary for the body, but also those things which pertain to relieving the mind and to the decency of her state. Lugo, l. c., nn. 68, 70. Nor indeed can she do this for herself only, but also for the children received from that marriage, for the utility of the family, or for removing some harm to it, and this even against the will of the husband. Therefore she can withdraw things from a prodigal husband in order to reserve them for the family in the future, or from an avaricious husband for making moderate alms. Lugo, l. c., n. 65; Lessius, l. c., n. 85. From the very nature of conjugal society the wife has administration of domestic things, the pantry, furniture, etc. C. He. 163; Lugo, l. c., n. 65; Lessius, l. c., n. 85. From C. I. 1432, if the wife administered the goods of the husband, she is subject to the same law to which he himself is subject in the administration of the wife's paraphernal goods.

But when the husband is absent or insane, the wife administers his goods, and she can spend them, according to the strength of the patrimony, for the sustenance and preservation of the dignity of the family, although perhaps the husband, if he were present or in control of himself, would not have spent them. From C. H. 1442, 1444, the wife administering all the goods of the marriage has the same faculties and obligations as when the husband administers them. Yet she cannot alienate or burden immovables. Lugo, l. c., nn. 16, 70; Lessius, nn. 12, 86; L. 541.

As to common goods. From C. I. 1433, 1435, 1436, 1438, 1439, 1441, in the marriage contract itself, although a dowry has been constituted, the spouses can enter together into a universal society, not indeed of goods, but of fruits coming from the goods themselves, whether movable or immovable, whether present or future. Yet this society cannot comprehend debts and credits existing before marriage, nor those which are later deferred by title of succession or donation while the communion itself lasts. The effect of this communion is to render common and divisible those things which are acquired by the spouses together or separately during the communion, whether by common industry, or by thrift made upon the fruits or incomes of the spouses, the debts of the communion itself always being deducted. Goods placed in common are administered by the husband, who cannot alienate them or subject them to mortgage except by onerous title, and if he leases them, he must observe the laws established for leasing which is done by a usufructuary. But the society ceases by the death of either spouse, by the declared absence of one, by definitive separation of persons, and by judicial separation of goods.

From C. H., when a contract concerning goods is lacking, by which they can also establish separation of goods between themselves, the marriage is judged to have been entered under the regime of legal society of gains, 1315, 1432. But if this society is excluded, without the rules by which the goods are governed being expressed, then the dotal regime is observed, and nevertheless the husband receives all the fruits of the society of gains just as if it existed, 1364.

Now by society of gains husband and wife make their own, by half, when the marriage has been dissolved, the gains and benefits indistinctly obtained by either spouse during marriage, 1392. By the law itself the proper goods of each spouse and the common gains are determined, 1396 seqq., 1401 seqq., and also the burdens and obligations of this society, 1408 seqq. The husband administers the society according to the established laws, 1412 seqq.; he can make moderate donations for the sake of piety and beneficence, but cannot reserve usufruct for himself, 1415.

The society is dissolved by dissolution of marriage, by the absence of either spouse, by separation of persons or goods, 1417, 1433. When the society has been dissolved, after an inventory has been made, and dotal and paraphernal goods have been restored, and the other burdens of the society have been satisfied, what remains is divided equally between husband and wife, or their respective heirs, 1418 seqq. Cf. ibid. 1435, 1436.

From C. G. 1393, even if spouses do not establish that certain goods will be common, nevertheless if any other pact is lacking, legal Community has place by force of law. For the pacts which can be entered by spouses before marriage constitute three classes, or a threefold regime, namely the dotal regime, concerning which we have already spoken, the regime of community, and the regime excluding community. Moreover, Community is either legal or conventional, according as it is constituted by law or by a special pact of the contracting parties. 1391, 1400 seqq., 1497 seqq., 1540 seqq. Legal Community coalesces: 1. from all movable goods which the spouses possessed on the very day of the marriage entered, or which afterwards come to them by title of succession or donation; 2. from all fruits and any revenues whatever of immovable goods possessed by the spouses before marriage, or coming to them during marriage; 3. from all immovable goods which were acquired from common goods during the time of marriage. Conventional Community consists in other pacts of the spouses, by which legal statutes can be restricted or relaxed. When these are lacking, the community is governed by the disposition of the law alone.

Under the regime of community the husband alone has administration of common goods. Indeed he can sell them, exchange them, and hand them over into mortgage, even without the consent of the wife. Yet he cannot donate immovables by gratuitous title, nor movables by universal title, or as to their universality or quota, that is, a half, third, or fourth part. He can dispose of some movable thing by gratuitous title, provided he does not reserve usufruct for himself. But when the community has been dissolved, goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus to exempt themselves from the burdens. Debts are to be paid by each spouse, or by their heirs. The husband also has administration of the proper or personal goods of the wife. 1400, 1401, 1409, 1422, 1428, 1441, 1453, 1467 seqq., 1497 seqq.

A regime excluding community can be constituted by the spouses in two ways, namely: 1. by declaring that they enter marriage without community; 2. by establishing that each will be altogether separate as to goods. In the former case the man receives all revenues of the wife's goods and alone administers all things. But if they are consumed by use, he is bound to return their value. But in the latter case the woman has administration and usufruct of all her own goods. Each spouse concurs for the burdens of marriage by special pact; but if no agreement exists, the wife must concur up to a third part of her revenues. Therefore in this third regime, as also in the second, some dowry must be contributed by the wife, by which she may in part aid the burdens of marriage; but a dowry of this sort can be alienated by the husband. 1530 seqq., 1536 seqq. Cf. here 868, 1237.

From C. A. 1233, 1234. For communion of goods between spouses a special contract is required. But it is understood only for the case of death, and gives to the spouse a right to the half part of the goods constituted in communion which remain after the death of the other spouse. Cf. art. 1262, 1266.

From C. B. the regime of goods is twofold, legal and conventional. Legal matrimonial regime of goods. By the marriage contract the goods of the wife, even those which she herself acquires during marriage, are administered by the husband, who has their usufruct, but must sustain the expenses of marriage. The goods reserved to the wife are excepted, whether by law, namely clothes, precious gems, and instruments of labor, and goods acquired by labor or the personal exercise of a gainful profession; or by contract, namely those which were declared such by the marriage contract; by succession, legacy, or donation made with that reservation. The wife has administration and usufruct of these reserved goods. When administration and usufruct of the husband have ceased, the husband is bound to restore the goods to the wife and also to render an account of administration. But the wife can demand this cessation if her goods are placed in danger. C. B. 1363 seqq.

Conventional regime of matrimonial goods. Spouses can establish an agreement concerning goods both before marriage and after marriage has been contracted, and they can dissolve or modify the regime of goods. If by the marriage contract the administration and usufruct of the husband is excluded, or if the community of goods is dissolved, then separation of goods is had. But community can be either universal of goods, or particular, or particular of acquisitions, or particular of movables and acquisitions. The husband administers the community and sustains the burdens of marriage from the goods of the community. When the community has been dissolved, the debts having first been paid, those things which remain are divided into two equal parts between the two spouses, or the descendants of either and the widowed spouse. C. B. 1432 seqq.

Besides these things, which are constituted by various laws, all those pacts must be observed both by the husband and by the wife which in the marriage contract either were tacitly entered, according to the proper laws of the region, or expressly constituted by private will, provided however that these agreed pacts do not oppose good morals or the laws. C. I. 1378; C. A. 1217; C. G. 1387; C. H. 1315.

From C. L. It is licit for spouses before marriage to make a contract concerning goods, within the limits of the law, 1096. Agreements of this sort will not be valid unless they have been made by public writing, 1097. If no agreement is made, the marriage is judged to have been contracted according to the custom of the kingdom, 1098. A woman can reserve to herself the right of receiving part of the fruits of her goods, provided it does not exceed a third part, 1104. An agreement can be made of marriage according to the custom of the kingdom, of community of acquisitions, of separation of goods, of the dotal regime, 1099 seqq. Agreement according to the custom of the kingdom imports community of all present and future goods not excepted by law, 1108 seqq. Dominion and possession of these goods is with each spouse; administration is in the hands of the husband, 1117 seqq. When the Community has ended, its goods are divided between the spouses and their heirs, due equality being observed. But satisfaction must be made first to the woman, then to the man, 1123, 1124. Agreement of community of acquisitions does not comprehend goods which are had at the time of marriage, or which afterwards are had by succession or another gratuitous title, 1130 seqq. Agreement of separation of goods does not exclude from community goods acquired without express declaration, 1125. Each spouse preserves dominion of his or her own goods, and their free disposition, with however that restriction for the woman which is made by law, 1127, 1128. Under the dotal regime the husband can alienate movable goods, but is bound concerning their value, 1148. Immovable goods are inalienable except for cases permitted by law, 1149 seqq., nor can they be prescribed during marriage, 1152. When the marriage has been dissolved, dotal goods must be restored to the woman and her heirs, 1156 seqq.

C. He. has the regime of union of goods, communion of goods, and separation of goods. Unless otherwise disposed, spouses are subject to the regime of union, 178. By union of goods all goods which the spouses possess at the moment of the celebration of marriage, or acquire during marriage, are joined into one sole conjugal substance, 194. The part of this conjugal substance brought by the wife remains her property. The husband is owner of the goods which he himself brought, and of any conjugal substance which was not brought by the wife. The wife's revenues and natural fruits of goods brought by her are the property of the husband from the moment when they are owed or separated, 195. The husband administers the conjugal substance, uses and enjoys it as a usufructuary, 200, 201. When the wife has died, the goods brought by her pass to her heirs. When the husband has died, the wife recovers the goods brought by her. If, after separation has been made, an increase is had, two thirds of this pertain to the wife and her descendants, the third part to the husband and his heirs. If on the contrary diminution is had, it is to be sustained by the husband and his heirs unless it is proved to have been caused by the wife. And, if on account of debts made by the husband the wife would obtain less than half of the goods brought by her, her credit for completing this half part is privileged. The cession of this privilege in favor of individual creditors is null, 211 seqq.

By communion of goods all goods and revenues of husband and wife are joined into one undivided substance, which pertains to each. The husband administers it. By the death of either spouse, half part of the common substance pertains to the surviving spouse, the other half part to the heirs of the deceased. Increase is divided into two equal parts between the spouses or their heirs. Diminution must be sustained by the husband or by his heirs, unless it is proved to have been caused by the wife. 215, 216, 225, 240.

Separation of goods regards the whole substance of each spouse. Each preserves ownership, administration, and usufruct of his or her own substance. But the wife is bound to contribute, in an equitable portion, to the burdens of marriage, even with reserved goods. 192, 241, 242, 246. Goods are reserved either by matrimonial contract, or by the liberality of third parties, or by law. Reserved by law are those things which personally and exclusively pertain to either spouse; goods of the wife which serve her for the exercise of her profession or art; and the gain which the wife receives by laboring in her own name. Reserved goods of the wife are not comprehended in the union of goods. 190, 191, 194.

n. 678.

What can a wife do as to entering various contracts? - The wife cannot, without the consent and authority of the husband, donate, alienate, or subject to mortgage her immovable things, contract a loan, cede or demand capitals, stand surety, make a settlement, or act in judgment concerning these acts. C. I. 134; cf. C. G. 215, 217; C. A. 91. Nor can she undertake to manage another's affairs without authorization of the husband. C. I. 1743; cf. C. G. 1990. But a woman needs no consent or authority of the husband or of another when the husband is a minor, interdicted, absent, or expiating a penalty longer than a year, or absent, or when she is juridically separated by the fault of the husband, or when she exercises commerce. C. I. 135; C. G. 220. From C. He. 161, 163, the wife is the one who directs domestic economy and represents it. And from art. 167, the wife has the faculty of exercising a certain profession or art with the express or tacit consent of the husband.

He who contracts with a wife, without the consent and authority of the husband, when this is needed, is obligated to the wife both civilly and naturally; and the wife is likewise obligated to him. But restitution in full is given to the wife and her heirs, and also to the husband while marriage remains, and to those having cause, unless it is proved that what was paid to the wife went to her convenience and utility. C. I. 134, 137, 1157, 1300; C. G. 217, 225, 1304, 1312. From C. H. 1304, the wife is not bound to restore a thing received by contract, when it has been rescinded, unless she became richer by it. Cf. also art. 1163. From C. B. 1365-1371, 1395-1400, 1405-1407, the wife can freely dispose of goods reserved to her; but as to goods subject to the administration and usufruct of the husband, she needs the approval of the husband.

Vol. II, On the Seventh and Tenth P…, I. On Justice Considered Generally

n. 871.

Are clerics badly spending the superfluous goods of ecclesiastical goods bound to restitution? R. Negatively, probably, because although the precept of the Church is certain, nevertheless the obligation from justice is not certain. Indeed, from Trent, sess. 24. C. 12. de R., it is gathered that they make the fruits their own, although with the obligation of expending the superfluous on alms or other pious works. For the Council says concerning non-resident clerics: Let them not make the fruits their own.

Nevertheless others probably affirm, because clerics are only administrators and stewards of ecclesiastical goods; or at least because the Church does not grant them ownership of those goods except limited, with this burden imposed from justice. The first opinion, that is, the negative, says St. Liguori in Retract. qu. X, seems no less probable in practice, notably because of the authority and reason of S. Th. 2. 2. q. 185. a. 7. But as regards the fault of violating the precept of the Church, for grave matter there is required a quantity much greater than in theft. L. 491. IV. 492; S. Th. Quodl. 6. a. 12. Since each opinion is probable, heirs also of these goods can probably retain them without injustice and sin.

But whether one who receives these goods sins by cooperating with the sin of the donor, many affirm; but it must more probably be said that "the receiver does not sin, neither against religion nor against charity, unless he asks, or induces to donating." L. 492.

Vol. II, On the Seventh and Tenth P…, III. On the Mode of Acquiring Ownership by Civil Law

n. 924.

What is suspension of prescription, and when is it had? Prescription is suspended when it, having first been begun, ceases because of some legitimate impediment interposed, so that the time during which the impediment lasts cannot be computed; nevertheless, once the impediment ceases, the prior years, with the intervening time of the impediment omitted, can be joined with the following years, and from all of them prescription be completed. - Now prescription is generally suspended against those unable to act, namely in cases determined by the law itself, C. G. 2251; but specifically: 1. against married women, during marriage, as to dotal goods, C. I. 2120; C. G. 1561, 2255. 2. Against minors and interdicted persons, C. I. 2120; C. G. 2252. 3. Against soldiers in time of war, C. I. 2120.

Against a church as long as it lacks a rector, C. 4, 15 de Praescr. 5. Against those absent because of civil or military service, and while courts cannot be exercised, in time of plague, war, etc. C. A. 1496. The stated causes of impediment in the first three cases from C. I. 2121 do not have place in usucapion of 30 years as to a third possessor of an immovable, or of a real right over an immovable. C. B. 202 ff., 939; C. H. 1932; C. L. 548 ff. Even when the time of prescription has been completed, the benefit of restitution in full is conceded to the Church, which, as is had in C. Auditis de In integr. restit., enjoys the right of a minor.

Vol. II, On the Seventh and Tenth P…, IV. On the Modes of Acquiring Ownership by Private Will

n. 950.

Note: Restitution in full is given to those harmed, by civil law, unless, namely, someone has approved the matter as duly and rightly done. C. I. 1309; C. G. 1311, 1338. It is given only in the cases expressed in law, C. G. 1118, even if there is question of minors, C. I. 1308; C. G. 1313, that is, in divisions, sales, and exchanges from C. I. 1038, 1529, 1554; in divisions and sales, but not in exchanges, from C. G. 887, 1674, 1706; in all contracts except aleatory contracts and compromises from C. A. 934, 1060, 1268, 1386; only in contracts celebrated by tutors or by representatives of absentees from C. H. 1291, 1293. Restitution in full, that is, replacement into the former state, and therefore each one is restored in his prior right. Therefore the harmed person recovers his thing, and the one harming, if he acted in good faith, ought to lose nothing of his own.

It must be sought from the judge; it has place even if injury was absent; and from C. I. 1300, the action of nullity or rescission is prescribed by five years; from C. G. 1304, by ten years; from C. H. 1299, by four years. Prescription of this sort holds also in the forum of conscience, because restitution belongs only by civil law. Action; for the exception of nullity or rescission is perpetual in favor of him who is compelled to execute the contract. C. I. 1302.

This benefit likewise belongs to churches and pious places within four years, from C. 1, 2 de Restit. in integr. in the Sixth. But restitution in full which belongs by natural law to those harmed, from injury inflicted because of fraud or fear, does not need the office of a judge, and it is verified in all contracts, and is perpetual. L. 717; Gousset 739; S. Th. 2. 2. q. 89 ad 3. From C. B. 853, payment of a credit obtained by an illicit act can always be denied.

Vol. II, On the Seventh and Tenth P…, XX. On Reparation of Injustice

n. 1319.

How is injustice repaired? Injustice or injury inflicted on another is repaired through restitution. Restitution is the rendering of another's thing, or the compensation of damage unjustly inflicted. This definition, as is clear, comprehends not only restitution of mutuum, commodatum, deposit, and pledge, where no violation of another's right preceded, but also restitution from actions in which violation of another's right preceded. - Therefore restitution differs from satisfaction in this: that satisfaction is compensation of offense or personal injury through some service, or request for pardon, or some other fine or penalty; but restitution is rendering of a real right, or compensation of real injury. C. A. 1323; St. Thomas, 2. 2, q. 62, aa. 1, 5; L. 547. Cf. here n. 1287.

n. 1320.

Whether the obligation of restitution arises from any violation whatever of justice? The obligation of restoring of itself does not arise from violation of distributive or legal justice, but from violation damaging commutative justice alone. The first part is proved, because through violation of distributive or legal justice, precisely as such, the right of property in a thing or to a thing is not injured, or no damage is inflicted on another; therefore from violation of distributive or legal justice, precisely as such, no obligation of real restitution arises. For neither violation of justice regards a good which is in some way at least one's own or proper, of which another is despoiled or deprived, as can be seen in the unequal distribution, e.g., of common goods, which do not pertain to individuals but to the community, and are to be assigned to individuals; likewise in defrauding fines which are owed by individuals and are to be paid to the community from the precept of law. Moreover, by transgression of distributive or legal justice there is indeed sin against such kinds of justice, but there is no precept of repairing that transgression, since it is now impossible that one has not sinned. There can indeed only be a new other obligation to be fulfilled, at another time, on another occasion. And thus if on Sunday you did not hear Mass, there will indeed be again an obligation to hear Mass for the following Sunday, but the obligation of the preceding Sunday has now entirely ceased. - The second part is proved, because restitution strictly such is compensation of damage unjustly inflicted; but real damage is inflicted only when the right of property, and commutative justice, is injured; which regards equality of things, and consequently the good which is one's own or proper to another, namely that each one have what is his. Hence the obligation always perseveres until you give to another his right. Therefore. Hence St. Thomas, 2. 2, q. 62, a. 1, says: "To restore seems to be nothing other than to set someone again in the possession or ownership of his own thing." But since "to preserve justice is of necessity of salvation, it follows that to restore that which has been unjustly taken from someone is of necessity of salvation." St. Thomas, ib., a. 2; L. 547; C. L. 2356, 2361 ff.

n. 1321.

Resolutions: A superior is not bound to restitution if he distributes the offices of society to those less worthy, because he does not violate the strict right of the more worthy person, nor of the community, which cannot demand anything else except that the unworthy be kept away from offices. But it is otherwise if in a competition the superior preferred the less worthy to the more worthy, because in a competition, speaking of itself, a pact intervenes, from which strict right belongs to the more worthy person. A superior who distributes merely honorific dignities, whether to the less worthy or even to the unworthy, is not bound to restitution, because he deprived no one of his right, although he sinned because of acceptance of persons. One guilty of damage is not held if he denies his crime lest goods be extorted from him; nor is he held who carries out prohibited merchandise against the command of the laws, although from this their price increases. L. 547; l. 4, n. 107; St. Thomas, 2. 2, q. 63.

n. 1322.

Whether the obligation of restitution ever arises from violation of distributive and legal justice? From violation of distributive and legal justice accidentally, and because of connected commutative justice, an obligation of restoring can arise. It is proved, for from violation of either of those kinds of justice real damage to a third party can arise, which by reason of office could and ought to have been avoided; and therefore an obligation arises at the same time of repairing that damage. But this obligation arises because of connected commutative justice; since in that case someone is guilty not only of the common good omitted, to which distributive and legal justice incline, but also of a violated contract, or quasi-contract, by which, in assuming the office, he implicitly obliged himself to prevent damages to subjects or others. St. Thomas, 2. 2, q. 62, a. 7; q. 66, a. 8.

n. 1323.

Resolutions: An unjust distributor of public offices is held to nothing toward the worthy person passed over, because he violated no strict right of his. Nevertheless he is certainly held toward society and toward private persons concerning all damages, arising therefrom both to society and to private persons. St. Thomas, l.c. A magistrate who prevents someone from competing for a prize, or forbids the prize to be adjudged to him who surpassed the others in the contest, is held concerning damage. - A magistrate likewise is held concerning damage who afflicts someone with an unjust penalty, if damage follows from it. A magistrate is also held concerning damage who burdens someone with taxes beyond his resources. Gousset 671, 1001; St. Thomas, 2. 2, q. 66, a. 8. Speaking of themselves, those who do not pay just tributes and tolls are bound to restitution, since they are owed from legal justice, which is intimately connected in this matter with commutative justice, by the very fact that someone is part of society, and a right has been acquired by society by force of the law itself of exacting tributes and tolls, so that its necessary expenses to be made may be compensated, if they are actually demanded and their payment is denied. Hence the Roman Catechism, 10, affirms that those not paying tributes and tolls are guilty of theft and rapacity. Gousset 671, 999. Cf. 232.

n. 1324.

Whether one unable to restore from goods of the same order is bound to restore from goods of a different order? Resp. Negatively, more probably. The reason is that restitution is replacement into the former state; and justice gives to each his own, not something else. Yet others probably affirm, because one who cannot render the same thing ought to render that which he can. But this follows from equity of right, not from strict justice. For he owes not this, but another thing. Hence through vindicative justice it can be imposed by a judge or superior that someone for injury concerning one genus of goods furnish something in goods of another order; more probably, however, by reason of penalty only, not by reason of justice. Moreover, the injured person has the right of denouncing before the Judge the one from whom he received injury, and therefore of accepting money from that one so that he may omit denunciation. Thus, e.g., a woman violently oppressed by someone can summon the violator before the judge, C. I. Poen. 38, or exact money from the scoundrel so that she may renounce her right. C. A. 1326, 1329, 1330, 1413; C. B. 842; L. 627, 1000; St. Thomas, 2. 2, q. 62, a. 2, ad 1.

n. 1325.

Whether restitution made by one civilly incapable is valid? - By positive law, the payment of a thing owed is not valid if it was made by him who was not proprietor of the thing, or was incapable of alienating. Thus according to C. I. 1240; C. G. 1238; C. H. 1160; and according to C. A. 1421, if the debt was not yet liquid. But a payment of this kind, made by one incapable of alienating, although subject to rescission, is not declared invalid by full right. Nor does it seem that there is place for rescission even in the external forum, if the thing owed is certain and the day has arrived. But by natural law there can be no doubt about the validity of a payment owed, made, e.g., by a minor, by a wife, by an interdicted person.

n. 1326.

From what does the obligation of restitution proximately arise? The obligation of restitution broadly accepted remotely arises from an obligation contracted by commutative justice and from violation of commutative justice; but it can proximately arise from the following heads: 1. From the unjust taking of another's thing: such taking injures another's right, and therefore the injured right must be repaired. 2. From another's thing possessed, formally or equivalently existing, and not yet legitimately prescribed: although another's thing was not unjustly accepted, nevertheless another's thing possessed and not yet prescribed is always its owner's, and must be rendered to him. 3.

From the fact that someone has been made richer unjustly from another's thing: if he has been made unjustly richer, another's right has been injured; but an injured right requires reparation. 4. From unjust damaging: he who brings damage to another injures his right. 5. From contract or quasi-contract: contracts have the force of private law; and therefore they oblige one to render to the contracting co-party his right. 6. From law or from juridical sentence: law or the sentence of a judge has the force of obliging in conscience. 7. From unjust cooperation: he who unjustly cooperates in an unjust action, by his cooperation truly injures another's right. L. 534, 547, 548, 711, 927; St. Thomas, 2. 2, q. 62, aa. 1, 2, 4, 6, 7; q. 66, a. 6.

Vol. II, On the Seventh and Tenth P…, XXI. On Restitution from Unjust Taking

n. 1327.

Whether there is an obligation of restitution from unjust taking; what in a case of doubt? It is undoubted that from the unjust taking of another's thing an obligation of restitution arises. For if another's thing has been unjustly accepted, it is possessed either by no title or by an invalid title; and therefore that thing cries out for its owner.

Inst. l. 4, t. 1, 2; St. Thomas, 2. 2, q. 62, a. 6; L. 548. But one thing can be asked here: Whether someone unjustly accepts another's thing when he begins possession with doubt concerning his right. Now in truth, he could begin possession here in two ways: 1. By despoiling another, without any title of itself able to transfer ownership; and in this case, since the peaceful possession of another gives a morally certain right, the despoiler is bound to restitution. 2.

By accepting a thing under another title, e.g., of purchase, donation, etc., from another concerning whom it is doubted whether he is its owner; and then one is bound to inquire into the truth of the matter, and, if doubt perseveres, "he must restore," says Father Gury, 652, "according to the proportion of the doubt, to the probable owner, or to the poor, if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor from another source does he seem bound to restore the whole, since he doubts whether the thing is another's and not his." But even if that doubt is not merely negative, but positive, he seems to be held to nothing; for he can then form conscience from reflex principles: no one is evil unless proved, etc.; nor from another source can a certain obligation be imposed which certainly is not established. Moreover, he can use the right of him to whom he succeeds by title of purchase, donation, etc. Wherefore, if that one possessed the thing in good faith and therefore could retain it, the one who succeeds him will also be able to retain the same thing for himself. Lugo d. 17, n. 83. Finally, he can retain the thing by title of occupation or possession until the owner appears; and if he does not appear, it can rightly be presumed that no owner is present, if, e.g., someone found a gem on the shore of the sea and doubts whether the thing belongs to no one, or was lost by some traveler. Cf. here 1334. But to what one retaining and continuing possession with doubt concerning his right is bound, cf. 1352-1354. - St. Thomas, 2. 2, q. 62, a. 6; L. 547, 625; Gousset 939, 1028; d'Annibale, ed. 4, p. 2, n. 121.

Vol. II, On the Seventh and Tenth P…, XXII. On Restitution from Another's Thing

n. 1331.

Whether there is an obligation of restitution from another's thing? It is undoubted that by reason of another's thing there is an obligation of restitution. For this is to restore: to set the owner again in possession of his own thing. Nor indeed is it considered by whom, or by what cause, or whether in good, bad, or doubtful faith, the thing is held. For these do not change the truth that the thing is another's. A possessor is in good, bad, or doubtful faith according as he invincibly does not know the thing to be another's and prudently judges it to be his own; or openly knows it to be another's; or doubts whether it is his own or another's. We shall speak of each gradually and specifically. St. Thomas, 2. 2, q. 62, aa. 1, 6; C. A. 826; Inst. l. 4, t. 1, 2; E. M.

Vol. II, On the Seventh and Tenth P…, XXIII. On Restitution from Unjust Profit

n. 1356.

What sort of obligation of restitution is had from unjust profit? Resp. An obligation of restitution is had first from the fact that someone has been unjustly made richer from another's thing. This head of restitution, from the fact that someone has been unjustly made richer from another's thing, does not regard another's thing itself, but profit made from another's thing and fruits received from another's thing; and not any fruits whatever, but fruits immediately received from another's thing, by which someone has been unjustly made richer, as we have already explained. Cf. 1341. But concerning restitution of profit and fruits of this kind we have already said enough. Cf. XXII. Wherefore nothing remains to be added here. Moreover, the obligation of restitution by reason of unjust profit is had in every contract in which someone does not preserve due equality; and restitution then must also be made from another cause, namely from the cause of contract, concerning which it will have to be spoken below. But this must be noted: that as another's thing is a source of restitution, so from the fact that someone has been unjustly made richer there is another source of restitution; for restitution must then be made not of another's thing itself, but of the profit unjustly made, as can be seen, e.g., in a mandatary, borrower, depositary, mutuum by reason of usury, acceptance of what was not owed, etc.

Vol. II, On the Seventh and Tenth P…, XXIV. On Restitution from Unjust Damaging

n. 1357.

Whether from damaging there arises an obligation of restitution? A damager is called one who injures another's right, harming his neighbor in his goods, yet without becoming richer thereby. Wherefore damaging is a source of restitution diverse from the preceding ones. "Whoever damages someone seems to take away from him that in which he damages him; for damage is so called from the fact that someone has less than he ought to have.... And therefore a man is bound to restitution of that in which he damaged someone." St. Thomas, 2. 2, q. 62, aa. 4, 6; Inst. l. 4, t. 3; C. B. 249 ff. Whatever act of man is the cause of damage to another obliges to reparation of that damage.

Nor indeed does only one's own act oblige to restitution, but also the act of another person or of a thing, of which someone has custody and care. And thus the proprietor of a house which falls because of defect of due conservation or construction is held concerning the damage which comes from it. The proprietor or custodian of an animal which causes pauperies is also held concerning damage. If a damaging act of this kind was committed with the intention of harming, it is called deceit and delict; if without that intention, from imprudence and negligence, it is called quasi-delict and juridical fault. C. I. 1151 ff.; C. G. 1382 ff.; C. H. 1089, 1092, 1104, 1105, 1902 ff.; C. A. 1293 ff.; C. B. 823 ff.; St. Thomas, 2. 2, q. 62, a. 1, ad 2; aa. 4, 7; E. M.

Vol. II, On the Seventh and Tenth P…, XXV. On Restitution from Contract

n. 1387.

Whether there is an obligation of restitution from contract? Restitution is the restoration of damage given. But damage is said from taking away. Wherefore restitution properly supposes something taken away and as it were diminished from our things. Hence the things which someone owes to another precisely by force of contract or quasi-contract, e.g., by force of sale, purchase, mutuum, commodatum, etc., he does not restore, but renders, as though giving back. Nevertheless, as restitution truly belongs by nature and by law, so also it can belong by pact. And thus, if a borrower by evil deceit broke vessels lent to him, by natural right he is held to restitution.

If by civil fault he did not guard them and lost them, by civil right he is held to restitution. If he took a fortuitous event upon himself, he is also held to restitution, not from natural or civil right, but from pact. Likewise someone is held to restitution and compensation of damages from pact when it is not fulfilled, or if he is constituted in delay. And the same obligation of restitution arises from quasi-contract: "as Princes, who are bound to preserve justice in the land, if robbers increase through their defect, are held to restitution; because the revenues which they have are as it were stipends instituted for this, that they preserve justice in the land." St. Thomas, 2. 2, q. 62, a. 7. - C. I. 1218 ff.; C. A. 919, 1295; Inst. l. 3, t. 14.

n. 1391.

Whether there is an obligation of restitution from the sentence of a judge? There is no doubt that an obligation of restoring is present from the juridical sentence of a judge. This is established 1. from the common opinion of theologians; 2. because civil power also, when it legitimately commands, has the force of obliging in conscience. But the civil magistrate commands legitimately, whether according to law he imposes a fine to be paid, or also according to the same law settles lawsuits regarding property. Therefore. But that these laws are just is clear again 1. from the common authority of theologians; 2. from the fact that among all civil nations these laws have flourished and do flourish; 3. because these laws are especially necessary for the right rule of civil society and its common good, whence civil authority can in no way lack the moral faculty of making such laws. L. 631, 641, 711, 927; St. Thomas, 2. 2, q. 62, a. 3; q. 66, a. 5, ad 1.

Vol. II, On the Seventh and Tenth P…, XXVII. On Restitution from Unjust Cooperation

n. 1395.

Whether restitution is owed from unjust cooperation, and how many kinds are there? - Restitution must be made from unjust cooperation. For there is not always only one cause of damage given, and a cooperator in unjust damage to a neighbor is truly its cause. Hence all those who in any way are an influencing and efficacious cause of the damage that followed are held to restitution; and those who, obliged by office and obligation of justice to guard against damage, did not guard against it. But cooperation in damage to neighbor can be done in nine ways, of which the first six are positive, the later three negative. All are contained in the following verses: Command, counsel, consent, flatterer, recourse, participant, silent, not preventing, not revealing. St. Thomas, 2. 2, q. 62, a. 7; C. B. 830.

n. 1416.

Whether a confessor is held to restitution if, from grave negligence or ignorance, he omitted to admonish a penitent concerning restitution to be made? Resp. More probably negatively. For although from office the confessor is held to instruct the penitent well, and therefore sins gravely if he omits this when it is necessary, nevertheless he is not held to this from an obligation toward a third party. Except if the silence of the confessor is equivalent to positive approval, e.g., if, having been questioned, he avoids an answer in such a way that the absence of obligation is suggested to the penitent. L. 578.

Vol. II, On the Seventh and Tenth P…, XXVIII. To Whom Restitution is to be Made

n. 1420.

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.

Vol. II, On the Seventh and Tenth P…, XXIX. How Much is to be Restored

n. 1424.

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.

n. 1427.

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.

Vol. II, On the Seventh and Tenth P…, XXX. In What Order Restitution is to be Made

n. 1429.

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.

Vol. II, On the Seventh and Tenth P…, XXXI. How Restitution is to be Made

n. 1447.

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.

Vol. II, On the Seventh and Tenth P…, XXXII. When Restitution is to be Made

n. 1455.

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.

Vol. II, On the Seventh and Tenth P…, XXXIII. On Causes Excusing from Restitution

n. 1459.

What things generally excuse from restitution? - All those things excuse for a time, or even exempt totally, which cause the creditor reasonably to have to be content, even if in fact he is not content. - L. 696, 700.

Vol. II, On the Seventh and Tenth P…, XXXIV. On Occult Compensation

n. 1471.

What is occult compensation? - Occult compensation is nothing other than an occult equivalent recovery of one's own thing, the occult reparation of damage unjustly suffered in one's own goods. This compensation is usually called extra-legal, to distinguish it from legal compensation, which touches certain particular cases, when two persons, debtors to each other, each receive in payment the thing owed to the other; which compensation, by force of the law itself, by full right, has place. Legal compensation obtains even when the debtors are unaware, up to the concurrent quantity of each debt, provided nevertheless that both are of the same nature and goodness and can be exacted immediately. But a delay which is conceded to the debtor for paying does not prevent compensation. - But legal compensation is not admitted 1. when restitution is sought of a thing of which the owner was unjustly despoiled; 2. when restitution of a deposit or loan is sought; 3. when there is question of a debt whose title has its origin from support payments which do not fall under seizure, such as wages, pensions, etc.; 4. when the creditor has renounced the right of compensation. But renunciation cannot be made to the damage of other creditors or sureties. C. I. 1285 seqq.; C. G. 1289 seqq.; C. A. 1438 seqq.; C. H. 1195 seqq.; C. B. 273, 274, 387 seqq. Cf. here 966.

Vol. II, On the Eighth Precept of t…, II. On Detraction

n. 1506.

What obligation of restitution is present in the detractor? - The detractor is held from justice, as much as can be done: 1. to repair the reputation unjustly taken away; 2. to compensate all temporal damages arising from the defamation and in some way foreseen. The reason for the first is that through the taking away of reputation a damaging injury has been inflicted; for the right which each one has to reputation cannot be taken away by private authority: therefore, since restitution of a good unjustly taken away is necessary, on that account that injury must be repaired. The reason for the second is that all damages arising from detraction are to be attributed to the detractor as their efficacious cause, whether the crime revealed is false or true, since in either case the detractor has unjustly injured reputation. The obligation of restoring reputation is personal. But the obligation of repairing damages which have arisen from defamation is real, and therefore passes to heirs. - L. 613, 991, 994, 995, 996.; St. Thomas, 2. 2, q. 62, a. 2, q. 73, a. 2.; C. B. 824.; C. L. 2389, 2390.

Vol. II, On the Eighth Precept of t…, III. On Contumely

n. 1517.

Whether an obligation of restitution arises from contumely? - Contumely of itself induces a strict obligation of restoring honor and repairing damages, if any have followed, at least if they were foreseen confusedly. The reason is that contumely contains injury, and any injury requires satisfaction, and if it is damaging, moreover compensation of damages. - Cf. 1506 seqq.; L. 966.; St. Thomas, 2. 2, q. 62, a. 2 ad 3.; C. A. 1330.

Vol. III, On Penance, XII. On the Various Duties of the Minister

n. 828.

To what is a confessor bound who unduly released a penitent from making restitution, or on the contrary obligated him to it? - If from malice or vincible ignorance, or grave negligence, he unduly released the penitent, he is bound to correct the error; but if he does not correct it, or the penitent, who otherwise would have restored, meanwhile has become unable to restore, the confessor himself is bound to restore in his place, because he violated the right of the creditor, namely by impeding the restitution owed to him. Likewise, if from malice or ignorance or grave negligence he obligated the penitent to undue restitution, he is bound from justice to retract the error; and if the penitent has already restored, he is bound to compensate him for the harm. - If inculpably or from light negligence he unduly obligated the penitent, or released him from the obligation, he is bound from justice to correct the error, but not with such grave inconvenience. The reason is that on the one hand each person is bound from justice to prevent his action, even an inculpable one, from causing another harm which he can easily prevent; and on the other hand, from light fault, or only material fault, ordinarily there does not arise an obligation with grave inconvenience. But if he neglects to admonish, when he can without grave inconvenience to himself, he is consequently bound to restitution. L. 621.

The admonition, in this case as in the following one, must be made in confession if the penitent returns to it. But if the penitent does not return, it is to be made outside confession, but only after permission has first been sought from the penitent. Cf. 827.

n. 829.

To what is a confessor bound who omitted to admonish a penitent about restitution to be made? - He is bound to admonish the penitent within Confession about the obligation, with some inconvenience, if no fault or only light fault intervened, at least by reason of charity; but with greater inconvenience, if in the omission he sinned gravely. In either case, however, this inconvenience is to be weighed against the grave harm of another. - More probably he is not bound to restore, even if by omitting the admonition he sinned gravely; the reason is that the confessor is not bound from justice to prevent the harm of him to whom restitution is owed. - L. 621; Lugo, d. 22, n. 67.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 31 passages

81. Restitution from Profit without Cause

Pamelius buys an ox, which he sells to Lucas for a higher price. But behold, a little later he learns that the ox belongs to Ioannes. He likewise buys wheat in good faith. He keeps it for a brief time; for soon the price of wheat notably increases, and he sells it with great profit. But then he learns that that wheat is stolen and belongs to Caius.

Q. What as to the Case?

R. Pamelius, apart from eviction, concerning which nothing is had in the Case, probably can retain the price of the ox, and the profit made in its sale. For the price of the ox, since it is not the ox itself, does not pertain to the owner of the ox; and to him the ox and the price of the ox cannot both pertain at the same time. But the profit made in this sale has not been made unjustly, since it was made only on the occasion of another’s thing from his own industry or commerce. — The same seems to be said concerning the price of the wheat, and concerning the profit made.

Nevertheless Fr. Gury, 600, 601, denies the parity, saying: “that the value of the ox had not grown in itself, and therefore the seller could attribute the profit obtained to his own skill. But in the present case the value of the wheat grew from common estimation. Therefore the profit coming from resale is in no way to be attributed to the seller’s skill. Therefore Pamelius was made richer from that profit independently of his own industry. Therefore he must restore it to the owner.”

But in truth the whole industry in the sale of the ox was nothing other than this, namely that Pamelius, using the good and favorable occasion of a buyer, sold the ox. The industry in the sale of the wheat is the same: instead of consuming it at once, or selling it, he keeps it, and then, using the good and favorable occasion of the increased price of wheat, he sells it. Next, if that profit does not truly come from industry or commerce opportunely made by Pamelius, does it come from the wheat itself? Certainly not. If Pamelius had not sold the wheat, or if he had sold it when it was being sold for less, certainly there would have been no profit. Therefore that profit was not the fruit of the wheat, but the fruit of the sale, and so of the work and industry of Pamelius.

But in this sale of wheat there certainly was no singular and extraordinary industry. — Indeed that is of no force. For that there was not present a singular and extraordinary industry does not remove the fact that the work and industry of the person were truly present. And was a singular and extraordinary industry present in the sale of the ox? — Besides, if Pamelius probably can retain the price of the resale of the wheat, as Fr. Gury himself has at 601, he can probably retain also that profit, or excess of price in the resale. For he certainly cannot retain the price by any title other than by title of the contract of sale made in good faith, no eviction truly intervening. But by force of that sale Pamelius licitly and justly acquired ownership of that price, not only of part of the price but of the whole price; and he will be able licitly and justly to retain it until that contract is rescinded by eviction. I. M. 1339.

Fr. Gury, 606, proposes this other case: “Pancratius in the best faith bought from a certain traveler a horse at the price of 300 francs. But after a few days, behold, by good fortune, that Bucephalus, since it was of female sex, brought forth a pretty new foal for its master. Thrice-blessed Pancratius, having kept the foal, sold the mother to Lubinus with a profit of 30 francs. The matter had proceeded very well, when from an unfortunate message he learned that the horse was stolen, and belonged to Bernard.... What is the law?” The same Fr. Gury responds: “In the case of eviction, Pancratius must refund the whole price accepted to the evicted buyer, because then the contract is altogether dissolved. But let him have recourse against his own seller, if he can find him. But what of the foal? By Roman Law, it must be returned to the owner of the horse. For a thing fructifies for the owner; and the offspring follows the womb. But by Gallic Law (and it is the same by Italian Law) it can be retained by the possessor, since the thing alone, the fruits excluded, must be returned. — Outside the case of eviction, he can at least probably keep both the 300 francs with which he bought the horse, because he does not have the thing, nor has he been made richer from it, and the profit of 30 francs, which he acquired by reselling the animal, as a fruit of his industry. But what again of the foal? By Natural and Roman Law the foal cries out to the mother and to the mother’s owner. But by Gallic Law (as also by Italian Law) it can be kept by the possessor.”

Now, what indeed was the industry of Pancratius in selling the horse, so that those 30 francs are fruits of the industry of Pancratius? It was nothing other than this, that, with a good and favorable occasion offered and taken for selling the horse with profit, he sold it. For a horse which is worth 300 is also worth 330, and with this latitude of price a horse is accustomed to be bought and sold. Wherefore it could well be said with Fr. Gury against Pamelius, that the profit coming from resale is in no way to be attributed to the seller’s skill. But certainly that profit must be attributed to the work and industry of Pancratius, as in the case of Pamelius: by this very fact, that that profit comes from resale. — Besides, if in the case of eviction, by Gallic and Italian Law, Pancratius can retain the foal for himself, therefore a fortiori Pamelius, outside the case of eviction, will be able to retain for himself the profit perceived. And if again by Gallic and Italian Law, outside the case of eviction, Pancratius can keep the foal for himself, much more Pamelius can keep the aforesaid profit for himself. For the foal is a natural fruit in the case of another’s thing, and that profit is only an industrial and civil fruit. Nor is it valid to say that Pamelius has been made richer independently of his own industry. For first, Pamelius has not been made richer independently of his own industry, as has already been proved. Besides, has not Pancratius also been made richer independently of his own industry? Moreover, as Pancratius, so also Pamelius indeed has been made richer, but not illicitly nor unjustly. And while Pancratius truly has been made richer from another’s thing, Pamelius has been made richer, but only on the occasion of another’s thing. Wherefore, as Pancratius, so Pamelius does not seem to be disturbed.

Fr. Gury, n. 612, proposes another case: “Zacharias stole 100 gold coins from Carolus. But since he is a man by no means unskilled, he employed them so prosperously in commerce that he perceived a notable profit from them. Q. 1. Is Zacharias held to restore the profit perceived from the stolen money? 2. What if he had placed this money at loan, and had received interest from it?” Fr. Gury responds in the same place: “To the 1st. Zacharias is certainly held to restore that whole profit, if the owner suffered an equal damage, e.g., because he also would have placed his own money in commerce, etc.; and this is presumed as often as the injured owner is a merchant, or is accustomed to employ money in various businesses. Otherwise Zacharias does not seem bound to restitution of that profit, perceived from his own dealing, because it can be called an industrial fruit. — To the 2nd. Also in this hypothesis one must attend to the damage which the injured owner is presumed to have undergone from lack of the money, and that damage is to be repaired. Otherwise the thief does not seem to be urged to restitution of the profit perceived, because it can be held as a fruit of industry.”

Now there is industry as much in giving money as a loan as in the sale of some thing. Indeed there is greater industry in the sale of a thing, so that someone may perceive profit by selling it for more, than in giving a loan, so that from it he may perceive legal interest. Therefore if Zacharias, a possessor in bad faith, is not to be disturbed as to the profit perceived from stolen money given as a loan, neither does Pamelius, a possessor in good faith, seem to be disturbed as to the profit perceived from a sale.

Callixtus, a goldsmith, in good faith bought for 100 lire a certain mass of melted silver, from which he made a chalice, which afterward he sold to a certain monastery for 150 lire. But soon he learned certainly that that silver had been furtively taken away from the same monastery to which he had sold the chalice.

Q. 1. Is Callixtus held to anything toward the monastery? — 2. Can the Superior of the monastery, the matter being known, reclaim the price paid, or refuse the price not yet paid? — 3. What if the chalice itself in specie had been stolen from the monastery, bought in good faith by Callixtus, and sold to the monastery for a higher price, and recognized by the Superior, whether before or after the payment of the price?

R. To the 1st. Callixtus is held to absolutely nothing toward the monastery.

For he is not held from the thing accepted, which he does not have, nor from unjust acceptance, toward which he cooperated in no way, nor from the fact that he has been made richer from another’s thing; for he has not been made richer unjustly from another’s thing, but he has justly been made richer on the occasion of another’s thing from his own labor and industry. G. 603; I. M. 1341.

To the 2nd. The Superior of the monastery cannot reclaim from Callixtus the price paid. For Callixtus, the contract of sale having already been perfected, legitimately made the price accepted his own; and so that price is no longer the monastery’s. I. M. 1339, 1341. Nevertheless the superior is not held to pay the whole price of the chalice not yet paid, but is held to refund the price of the labor and art to the goldsmith; for specification intervened, made in good faith. I. M. 906; G. 604.

To the 3rd. 1. Payment having been made, the goldsmith probably can retain the whole price. For the price accepted is his own by force of the contract of sale already perfectly made, unless, eviction intervening, that contract is rescinded. But the profit perceived, if he sold the chalice for a higher price, is also his own; because, the aforesaid contract of sale standing, the whole price accepted is his, and because the aforesaid profit or excess of price in the sale made of the chalice is the fruit of his industry and commerce. I. M. 1339, 1341; G. 605.

But before the payment of the price, the contract of sale not yet being perfected, the superior is not held to pay the price of the chalice. For one’s own thing is not bought, nor is anyone held to pay the price of his own thing which he has, in whatever way he has it, unless in a particular case some special disposition of law is present, which does not obtain in the present case. I. M. 1131, 1343; G. 605.

Palemon, in order to feed his wife, contracted many debts from loan, without having whence he might pay. After his death, the wife asks whether she herself, from her own goods, is held to pay the debts made by the husband for her.

Q. What must be answered to the wife?

R. The authors of the Cases of Conscience of the Diocese of Bologna, in the year 1778, month of November, Case 1, more probably affirm that the wife is held to pay the aforesaid debts of the husband. “An indigent husband, although he is held by a radical obligation to feed his wife, nevertheless while he is impotent he is not held by an actual obligation; for no one is held to the impossible, from L. Etiam, L. Maritum ff. Solut. Matrim. Therefore, if in order to feed her he contracted debts, the wife, for whose utility they were contracted, will be held to pay, if the husband is not solvent. For if someone accepted another’s thing and is not solvent, an action is equally given against him to whom the thing itself came, not indeed from an onerous cause, but from a lucrative cause, L. Eum servum, and L. Si et me et Titium ff. Si cert. petat. Next, it is unjust that someone be enriched from the things of others, and he who from another’s thing has been made richer is held to restore that in which he has been made richer. L. 2. § Aequissimum ff. ad L. Rhod. de Iactu, where it is said that, if, while a ship is being tossed by waves, a jettison of merchandise has been made, the detriment ought to be common also to those whose goods by reason of that jettison were saved. But in the Case the wife has been made richer from the monies accepted as a loan by the husband; for, the husband being impotent, the wife herself is held to feed herself. Therefore, if she has been fed from those loans, she spared her own things, and has been made richer. Add that by natural law the wife herself is held to feed not only herself, but also her indigent husband. Therefore the debt contracted by the poor husband for feeding the wife can truly be called the debt of the wife herself; and so, the husband being unable to pay, she herself is held to pay. Lastly, although from the whole title ff. ad S. C. Macedon. the father is not held to pay a loan contracted by a son under paternal power, nevertheless, if that loan has been turned to the utility of the father, or to a thing to which the father was held, he himself will be held to restore, L. Sed Iulian. 9. § Proinde ff. e. t.; Cap. Quod quibusdam de Solut., C. Ad hoc e. t.; L. 1. ff. de Condict. indeb.

Then truly the cited authors note two things: “1. How much is the wife held to pay in the Case? And it is necessary to distinguish. For either at the time when the husband was poor, the wife also was destitute, or not. If the first, when riches afterward come to her, she will be held to pay only that part of the debt which was consumed by her, that is, pro rata corresponding to the food for herself, because nothing else was truly turned to her utility. But if she was rich, the wife will be held to pay the whole debts. For, while she can, she herself is held by the right of natural conjunction to feed her indigent husband and her children. Whence the whole debt was contracted for her utility, or for supplying her actual obligation.

It must be noted that the wife is by no means obligated to those debts, if the husband, although he dies unequal to paying, nevertheless was able to pay at the time when he contracted the debts. For then, since he was actually held to feed his wife, the wife perceived no advantage from another’s money. Likewise she will not be held if the husband, after debts contracted in poverty, his faculties having increased, was made solvent. For since with the husband’s riches supervening his obligation revives, every reason in the wife, whether of utility or of equity, that she pay, ceases.”

Sanchez, de Matrim. l. 9. d. 4. n. 29, on the contrary more probably denies that the wife is held to pay the aforesaid debts of the husband. At n. 28 Sanchez proposes the question thus: “Whether, when the marriage has been dissolved, no goods of the husband remaining, the wife is held to pay from dotal goods the debts contracted by the husband for feeding her and the family, as for paying the wages of servants, the rent of the house, clothing and food of the family? And similarly, whether the children can be sued, and are held to pay the loan accepted by the indigent father for their food? For the decision and reason of both questions is altogether the same.” The first opinion affirming having been related at the cited n. 28, then in the following n. 29 he adds these things: “But although this opinion is sufficiently probable, the contrary pleases me more, namely that neither the wife nor the children are held to pay those debts contracted by the husband or father from their own goods. To prove this I premise that in a poor husband the obligation of feeding wife and children is not altogether extinguished, but only suspended for the time of the poverty excusing him; just as any debtor by reason of poverty is not wholly released from paying a debt, but that obligation is only suspended, and he is excused from payment while inability by reason of poverty lasts. This is plainly evident from this; for no one will doubt that wife and children are by no means held to those debts contracted by an indigent husband for their food, if the faculties of the husband in the course of time so increase that he is able to pay. But if by reason of poverty that obligation had been altogether extinguished, once the faculties had been increased it would by no means revive. For an obligation once extinguished does not revive. L. Cum ex causa C. de Remis. pign.

This having been premised, our opinion is proved thus. If Peter, that he may satisfy his creditors, contracts a great debt, thinking that afterward he will be able to pay it, although the contrary happens, no one will say that the creditors who were satisfied by that loan, and to whose utility it yielded, are held to the later creditors who gave those monies on loan to Peter. Because these later creditors entered into no contract with the prior ones, and truly through the loan they transferred ownership to Peter, and Peter as true owner could satisfy his debts from that loan, although by reason of poverty he was excused from paying them. Similarly, therefore, although an indigent husband by reason of inability is exempted, or rather excused for that time from the burden of feeding wife and children, and is not held to burden himself with debt, by which he may answer to this obligation; nevertheless, if he truly burdened himself, and thus fed them, he fulfilled a true obligation suspended by reason of inability. Nor will that money be said to have been turned to the utility of the wife and children, to which the father was truly not held; nor will wife and children truly be said to have been made more wealthy, and to have received from a lucrative cause (and from the liberality of the husband), but rather from an onerous cause (namely as a thing owed to them), since truly they received a debt owed to them; and therefore they will by no means be constrained to pay that loan. And it is confirmed, because although the wife was rich at the time of the loan accepted by the poor husband, she was not held directly to the food of husband and children, but in subsidy, namely, if the husband were not seeking elsewhere the monies by which he might supply necessities; and since he had now sought them, accepting a loan, the wife was relieved by him from that burden, and the money was not given on loan to her, nor received in her name; therefore she will not be held to pay it.

Secondly it is proved from L. Non adversus 15. C. Si certum petat, and L. Eum cui 13. C. de Action. et oblig., there: Him to whom you have given money as a loan, you ought to urge to payment by the competent action. For against business-agents, whom you allege to have taken monies from merchandise from your debtor, you have no action. From these texts it is evident that this action of reclaiming a loan is personal, and therefore competent against the debtor alone, to whom it was given; since ownership has truly been transferred to him, and in the manner of a true owner he could dispose of it....

Nor do the arguments of the contrary opinion stand in the way, because, from what has been said, it is evident that wife and children have from an onerous cause, and that loan is not said to have been turned to their utility.”

But Lugo, de Iust. et Iur. d. 20. n. 127 seqq., has these things to the point:

“From what has been said it can now first be inferred what must be said concerning the wife of a debtor or usurer who cannot pay his creditors, concerning whom Sylvester says that she must restore whatever she consumes from the goods of the husband. Others nevertheless concede that she can consume, without obligation of restoring, the things which are necessary to her for life and for the preservation of status. Both because the husband owes food to his wife no less than he owes it to other creditors, and because the creditors ought to be content that the debtor in such necessity defer or omit payment in order to feed his own wife. Note, however, first, if the things which the husband has were still in their proper species the goods of another, the wife could not consume them, except in the case in which it would be lawful because of necessity to usurp the things of another, and with the same conditions and limitations with which the usurpation of another’s thing is lawful. Note, secondly, if the wife could, with her dowry received by herself, or with her own goods, or in another honest way, feed herself, she could not accept from the goods of the husband to the prejudice of creditors; nevertheless she ought not to be compelled to serve or work for a living, when this would be done with dishonor.

It is inferred secondly that the same must be said concerning children, who also can licitly accept from the father, even one unable to pay his debts, the things which in the same way are necessary to them for the sustaining of life and status, because the father also owes them necessary food.”

And St. Alphonsus, l. 3. n. 354: “Whether a wife, her husband having died, is held from dotal goods to pay debts contracted for feeding the family? The first opinion affirms, if the man was poor while he contracted the debts, otherwise if he was wealthy, because a poor man was not held to feed his wife; therefore she herself is held to pay what was turned to her utility. But the second, more probable opinion denies this, whether the man was poor or wealthy. The reason is that the action of creditors for reclaiming the loan made is personal, namely only against the husband; and although in the husband by reason of poverty the obligation of feeding the wife was suspended, nevertheless it was not extinguished; wherefore, if he fed her from a loan, he furnished his own debt.”

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Chapter I. On the Obligation of Restitution · Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Chapter IV. On the Causes Excusing from Restitution

Therefore, with this variety of opinions standing, it does not seem that the wife of Palemon can be obligated to restitution. And this is consonant not only with Roman Law, but also with the more recent Law. For if, while marriage is standing, a woman contracts a debt or any obligation whatever, the dotal goods also certainly become liable to creditors after the marriage has been dissolved, from the Italian Code 1407 (otherwise from the Gallic Code). But in the Case the wife contracted neither a debt nor any obligation, but only the husband; nor truly did the husband contract the aforesaid debts, in the Case, in the name of the wife, or with the wife at least knowing and consenting. — I. M. 677, 679.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 65 passages

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Chapter I. On the Obligation of Restitution

Restitution, as regards the name, sounds the same as the placing of a thing into its pristine state. As regards the reality, it is the repair of another's injured right.

- Principles. I. Restitution in reality, or at least in vow, is absolutely necessary of itself for salvation if it is a matter of grave matter.

It is evident from the principles established above, n. 532. For commutative justice necessarily demands that the violation of another's right cease; but it cannot cease except through restitution. Therefore.

It is evident also from Sacred Scripture. Thus Ezek. 33:14: But if you say to the impious man: You shall die the death; and he does penance for his sin, and does judgment and justice, and that impious man has restored the pledge and has returned robbery..., he shall live life and shall not die. - And Epist. St. Jas. 5:4: Behold the wages of the laborers who have reaped your fields, which have been defrauded by you, cry out; and their cry has entered into the ears of the Lord of Sabaoth.

It is evident from the unanimous consent of the Holy Fathers. Thus St. Augustine, ep. 153 to Macedonius: The sin is not forgiven unless the thing taken away is restored, when it can be restored. - These words of the holy Doctor were inserted into Canon Law (Decret. Gratiani, cap. Si res aliena 1, causa 14, q. 6); and thence the fourth rule of law in the Sext: Sin is not forgiven unless the thing taken away is restored.

I said in reality or in vow; for restitution is not necessary by necessity of means for salvation in reality; wherefore if it is impossible in reality, it does not obstruct salvation. But no one can be excused from restitution in vow; and whoever has injured another's right must always have a firm purpose of restoring when he can; for otherwise he would retain affection toward an evil thing, and thus would be found in habitual sin. - Thus all. - Hence St. Augustine in the text just cited says: when it can be restored.

n. 627.

- II. The precept of restitution is primarily negative, but secondarily affirmative. The first reason is that the precept of restitution is immediately founded on the obligation of not violating another's right, or on the obligation of neither accepting nor retaining another's thing. But this obligation is primarily negative, as is plain, and therefore it urges always and for always, that is, it urges at any moment until restitution has been made. - The second reason is that the obligation of not receiving or retaining another's thing, on which the precept of restitution is primarily and immediately founded, cannot be fulfilled without there thence being made a positive action by which that which is his is returned to the owner.

n. 627.

III. There is no obligation of restitution except on account of the violation of strict right, or of commutative justice; but otherwise not on account of violation of the right of uprightness simply. The reason is that restitution brings it about that the thing owed to the neighbor equals his right unjustly violated. But now this cannot be done when speech is of the violation of the right of uprightness. For if someone injures the right of his Superior or of his neighbor, by denying obedience to the former, and offices of charity to the latter, that violation cannot be strictly repaired, because a new act of obedience or charity would not repair the violated right, but would only satisfy the precept, which always urges, namely of obeying the Superior and relieving the neighbor in straits.

- Questions. Q. 1. Whether one unable to restore from goods of the same order is held to restore from goods of a diverse order?

Resp. More probably negatively. The reason is that no comparison is given between goods of a diverse order; therefore neither can compensation be given. And indeed it could never be decreed how much arithmetically ought to be restored, since between goods of a diverse order no common measure is given. - St. Lig., n. 627. - Lacroix, etc., and others more commonly.

Nevertheless certain others affirm, because, they say, he who cannot repair the whole damage is held at least to compensate the part which he can. - St. Th., 2. 2, q. 62, art. 2. St. Lig. calls this sentence probable, but holds the first as more probable.

Nevertheless, through vindicative justice it can be imposed by a judge or by a Superior that for injury concerning one kind of goods someone provide something in goods of another order; yet more probably by reason of penalty only, but not by reason of justice. The injured person besides has the right of denouncing before a judge him from whom he accepted injury, and therefore of accepting money from him so that he may omit the denunciation; thus, for example, a woman violently oppressed by someone can compel the violator to court, or exact money from the scoundrel so that she may renounce her right.

- Q. 2. Whether an obligation of restitution is induced from an action affectively only, but not effectively injuring another's right?

Resp. Wholly negatively, because no real injury is inflicted on the neighbor, although the agent sins gravely by an internal act against justice. Hence a malicious judge bringing forth a sentence which he thinks unjust, if in reality it is just, is to be exempted from the burden of restitution; or he who snatches away a thing which he thinks another's, while it is his own. - St. Lig., n. 556. - Recall what was said above, n. 602, 605.

Q. 3. Whether sins are multiplied by delay of restitution?

Resp. More probably negatively, if the bad will of not restoring habitually perseveres. - St. Lig., l. 5, n. 40. - Recall what was said in the Treatise on Sins, n. 166.

- Q. 4. Whether little thefts made to diverse persons oblige to restitution under grave obligation if they have arrived at grave matter, and whether restitution must be made under grave obligation also to the owners themselves?

Resp. to the first: Affirmatively, because the precept not to steal not only prohibits damage from being brought on another, but also that someone be unjustly enriched by another's thing. - Thus commonly. - Recall what was said above, n. 609.

Resp. to the second: More probably negatively. The reason is that by hypothesis no owner has suffered grave injury. - Therefore, even if the owners are known, without grave injury of anyone restitution can be made to the poor, or to pious places; indeed if a reasonable cause accedes, for example, the urgent necessity of the poor, etc., even venial sin will be absent. - St. Ligorius, n. 534, 595. But if the owners are unknown, restitution must be made under grave obligation to the poor or to pious places. - St. Lig., ibid.

Q. 5. Whether he who in minute thefts did not sin gravely, but from inadvertence arrived at grave matter, is held to restore under grave obligation?

Resp. Affirmatively; because although he did not sin gravely by stealing, nevertheless he is an unjust possessor of grave matter, and therefore he will sin gravely by retaining the stolen thing. This is valid even if the thefts were made to diverse persons; for otherwise he could be unjustly enriched by another's thing without grave sin, which from what has been said is not lawful.

- Q. 6. Whether a thief who has stolen a grave sum of money is held to restore it whole under grave obligation?

Resp. Negatively. For he is held under grave obligation to restore only that which completes grave matter, because when this has been restored the matter retained is no longer grave. Hence someone can be obligated under grave obligation to restore light matter; but then the obligation arises not from the light thing, but from the grave quantity. - St. Lig., n. 555.

Q. 7. Whether the soul of a deceased person, as they say, is detained in purgatory until restitution has been made by his heirs?

Resp. Negatively. This error of the common people has arisen from certain fictitious or badly understood revelations, in which souls dwelling in purgatory are reported to have appeared and to have begged for restitution, that they might be liberated from the flames. The reason is plain. For no one in the other life is punished except for fault which he personally committed in the present life; but no one is punished on account of the fault of heirs. Nevertheless, if the heirs have been solicitous to accomplish restitution so that they may exhibit some satisfaction for the soul of the debtor, it must piously be trusted that God will benignly accept this for it, at least in part.

- Resolutions. 1. He who is found in inability to restore another's thing or its value must always have a firm purpose of restoring when he can, and meanwhile to acquire, if he can, something by which he may satisfy his obligation as soon as possible.

If someone cannot restore the whole, and it is a matter of a divisible thing, he is held to the part which he can. For the injured person has a right to the individual parts, just as to the whole.

He who has inflicted light damage on his neighbor is held to restitution toward the injured owner under light obligation, and with inconvenience proportionate to the thing; for light injustice must be repaired under light obligation, just as grave under grave. Yet a reason excusing from restitution can then more easily be present, especially from making it to the owner himself. But if it is a matter of a very slight thing, any difficulty whatever will suffice so that restitution can be made to the poor. - St. Lig., n. 534.

He is deservedly held unworthy of absolution who refuses to promise restitution; who leaves to his heirs the care of restoring, while he can do it by himself; who, burdened by debt, in food, clothing, service of servants..., undergoes expenses of such a kind on account of which he foresees that he will afterwards be unequal to paying his debts. The same must be said of him who, enjoying good fortune, does not wish gradually to diminish his state so that he may satisfy creditors. But with him who twice or three times has promised that he will restore, and has by no means kept his promises, it will belong to the prudent Confessor to judge whether restitution is to be exacted before absolution or not ¹.

¹ Namely, even if the Confessor judges the penitent to be wholly prepared to fulfill as soon as possible the obligation of restoring, nevertheless, unless circumstances persuade otherwise, it is expedient that he rescue him from the danger which can be feared from his inconstancy.

Nor are those to be absolved who bring forth futile pretexts for delaying restitution, for example, those who are accustomed to keep saying: I shall not carry my goods into the tomb...; the heirs will restore...; I shall establish in my testament that restitution must be made...; or: I have already instructed my children that they themselves restore as soon as possible... For those are to be reckoned badly disposed who do not wish to do here and now whatever they morally can for satisfying the neighbor: 1. because the precept of restitution urges without ceasing, and the creditor suffers injury and often also damage from delay; 2. because provision is badly made for restitution to be made by committing it to heirs; for they too can similarly put it off to the end of their life; 3. because perhaps time will be lacking for making a testament, or, if it is made, perhaps also for various reasons or pretexts it will happen that it is not executed.

The Confessor ought to act cautiously with dying persons subject to restitution. But he will be able to proceed thus: 1. If the penitent seems to be in good faith, and there is no time remaining for prudently warning him concerning his obligation, or it is foreseen that the warning will not be of use, this having been omitted, he is to be absolved. 2. But if fruit from the warning is hoped for, or if the penitent is not in good faith, he will have to be warned of the obligation of restitution both firmly and gently, and aided to accomplish it immediately. 3. If the obligation is hidden and cannot be done immediately, the sick man will have to be induced to commit a sum of money to himself the Confessor, or rather, if it can be done, to a faithful man, so that afterwards it may be secretly committed to the creditor; or to leave that sum to him in the testament, mention of restitution having been omitted. 4. If the obligation is not hidden, nor can it be fulfilled immediately, let the Confessor bring it about that it is certainly cared for by the heirs, whether through a small note to be handed to the creditor, etc. - See Casus, n. 580 and following.

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Chapter IV. On the Causes Excusing from Restitution

n. 715.

- I. The following excuse for a time: 1. physical impotence, or every kind of impossibility, which is had in extreme necessity; indeed also in very grave necessity either of the debtor himself or of his own, that is, of his wife and nearest blood-relatives; 2. moral impotence, or grave difficulty of restoring, namely when restitution cannot be made without grave inconvenience of the debtor, for example, if by restoring he would have to fall notably from his state justly acquired, or fall into grave necessity, etc. The reason is that then there is true impossibility of restoring; for in morals that is called impossible which is very difficult, and which cannot be done decently and honorably. - Hence if a nobleman cannot restore unless he deprives himself of servants, horses, arms; or a leading citizen, unless he undertakes a mechanical art unaccustomed to him; or a craftsman, unless he sells the instruments of his art, or undergoes great damage, he can defer restitution, and pay his debts gradually. - St. Lig., Hom. apost., n. 117.

n. 715.

Several except the case in which the debtor has culpably cast himself into such necessity, for example, by games, banquets, and debauches. - Thus Laymann, Lacroix, Busemb., with others. But St. Lig., Hom. apost., n. 118, says: This notwithstanding, if the debtor would fall from his state justly acquired, to me and to other learned men it seems hard to oblige him to integral restitution. Moreover St. Anton., Sporer, Elbel rightly advert that in such a case the debtor is always held to diminish expenses, so that he may restore at least what he can.

n. 716.

- II. The following excuse in perpetuity: 1. remission, or condonation of the debt on the part of the creditor; but it is required that the creditor be able to condone, and that he have dominion and administration of the thing owed to him; likewise that the remission not be made by force or fraud, but altogether freely and spontaneously; 2. compensation, that is, when the creditor by his own authority vindicates an equivalent for himself, or retains the same debt for himself; 3. prescription clothed with the due conditions. But prescription for debts is not regularly completed except through thirty years; nor commonly can it have place as regards the debtor himself who contracted the debt, because good faith cannot be found in him. - St. Lig., n. 700, etc. Recall what was said concerning prescription, n. 580 and following.

Questions. - Q. 1. Whether a debtor is held to restore if he is situated in the same necessity, whether grave or extreme, with the creditor?

Resp. 1. If the creditor is already found in grave necessity, and the debtor by restoring falls into it, he must restore according to all.

If each is already found in grave necessity, and the debtor by restoring would fall into extreme necessity, it is disputed. More probably he is excused from restitution which is not owed from delict. Indeed probably even if it is owed from delict; because the debtor then by restoring would subject himself to damage indeed graver. Except if the thing itself still exists in species. - Thus commonly.

Vol. II, Tr. XI, Sect. I, Q. III, Ch. IV, Article I. On The Obligation Of Restitution In General · Vol. II, Tr. XI, Sect. I, Q. III, Ch. IV, Article II. On The Roots Of Restitution To Be Made

If each is in extreme necessity, more probably restitution can be omitted; because then all things become common. - Bonac. - St. Lig., n. 701, Hom. apost., n. 119. Lugo, however, with others, holds the opposite no less probably.

n. 718.

- Q. 2. Whether he who accepted and consumed another's thing in extreme necessity is held to restore?

n. 718.

Resp. 1. If he has his own things elsewhere, affirmatively; the reason is that even at the time of necessity he is not truly unable. - St. Lig., n. 520, and others commonly.

…and 25 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 44 passages (filed under the subtopics)

Vol. III, Contracts, and the Obligat…, On the Virtue of Justice (…, Part I — Chapter III: On Restitution

n. 485.

4. On Doubt as Regards Damaging.

That doubt can precede or follow the damaging.

(A) If the doubt precedes the action, namely if someone doubts whether such an action can injure the right of another or not, he must investigate the matter, with that diligence namely which the gravity of the matter demands; but if, after diligent examination, a positive and grave doubt perseveres, he must abstain from the probably harmful action; for justice forbids that damage be even probably inflicted upon another.

Thus a judge cannot pronounce sentence against someone if he seriously doubts whether this man is guilty; nor can a physician apply a remedy which he judges to be probably dangerous, when another certainly efficacious one is at hand; nor can a hunter discharge a gun at some object about which he doubts whether it is a man or a beast.¹

¹ These cases differ altogether from the case of the indirect voluntary, namely when from a cause licit in itself a twofold effect can arise: one certain, namely one's own good or that of the neighbor, and the other doubtful, namely damage to a third person: for then the action is licit, provided the good effect compensates the evil.

n. 486.

(B) If the doubt follows the action, several hypotheses can be imagined: (a) if, after diligent examination, a probable doubt remains whether the cause of damage was unjustly posited, e.g., whether someone unjustly calumniated another, - or whether in fact some damage was inflicted upon the neighbor, e.g., whether the neighbor suffered damage in his business from the calumny or not; in both cases, strictly speaking, there is no obligation of restoring, because an obligation ought not to be imposed unless it is morally certain; but in the case the injury is doubtful. - Moreover, in doubt the condition of the possessor is better.

n. 487.

(b) If the damage is certain, and it is likewise certain that a sufficient cause of the damage was posited (e.g., calumny), but it is doubted whether this damage followed from this cause or from another, more probably he who posited the cause is bound to restitution, because the damage is deservedly presumed in fact to follow from this cause, until the contrary is proved; yet probably some hold that the obligation of restitution is not to be urged, because that the effect followed from the cause ought not to be presumed, but proved.

n. 488.

(c) If damage certainly has been inflicted, but there is a twofold cause, each of itself efficacious, and it is doubted from which one the effect followed (e.g., two men at the same time discharged a gun at the same victim), the matter is controverted; much more probably each is held in solidum to restitution; for each culpably posited a cause of itself efficacious for damage, and if uncertainty arises as regards the author of the damage, this must be attributed to the damagers themselves. - Yet St. Alphonsus probably holds (n. 657) that the obligation of restitution is strictly to be imposed upon no one, because no one is bound to despoil himself on account of a doubtful obligation. In practice, restitution is earnestly to be advised, if not urged.

n. 516.

I. Which Cooperators Are Bound to Restitution?

Nine are commonly enumerated, comprehended in these verses:

Command, counsel, consent, flatterer, refuge,

Participant, silent, not opposing, not revealing.

Of these the first six are called positive, because they concur by action in inflicting damage; the latter three are called negative, because they concur in it by omission of an action owed from justice. - Concerning each we shall explain whether and by what reason they are bound to restitution.²

² St. Thomas (l. c.) briefly contracts this as follows: "It must however be known that five of the preceding always oblige to restitution: first, command, because he who commands is the principal mover, whence he is principally bound to restore; second, consent, in that, namely, without which robbery cannot be done; third, refuge, when namely someone is a receiver of robbers and furnishes patronage to them; fourth, participation, when namely someone participates in the crime of robbery and in the booty; fifth, he is bound who does not oppose, when he is bound to oppose... But in the other enumerated cases someone is not always obliged to restore: for counsel, or flattery, or something of this kind, is not always the efficacious cause of the ruin. Hence only then is the counselor, or flatterer, that is, adulator, bound to restitution, when it can probably be estimated that the unjust taking followed from causes of this kind."

n. 517.

1. On the One Mandating or Commanding.

(A) Notion. In general, one mandating is said to be he who entrusts to another a business to be carried out in his own name; but in our matter he is one who induces another to inflict damage upon the neighbor in his own name; if the one mandating is a superior, who has the power to command, he is called one commanding. - And this indeed can be done in a twofold way: explicitly, namely by command, threats, prayers, hope of reward, or another act by which another is positively moved to harm the neighbor; implicitly, if by deeds or words he signifies to a subject that damage inflicted on another will be pleasing to himself; e.g., when Henry II, king of England, was often complaining that he had no peace with Thomas, Bishop of Canterbury, so that the courtiers understood that they would do something pleasing to the king if they took Thomas out of the midst.¹ - But he is not judged one mandating who only ratifies damage already previously inflicted in his name.

¹ Breviarium Rom., Winter Part, On the feast of St. Thomas, lessons 5-6.

n. 518.

(B) Obligations of the one mandating toward the one damaged.

(a) The one mandating is bound to repair all damages which another, by force of the mandate, inflicted upon the neighbor; and all those things which are morally connected with the execution of the mandate, namely those which at least confusedly were foreseen, after all circumstances have been carefully weighed. For he who mandates that some damage be done in his name perpetrates it through another; but he who acts through another is judged to act through himself, and therefore is bound to repair this damage.

I said: by force of the mandate; hence if the mandatary transgressed the limits of the mandate, so that this could not have been foreseen, the one mandating is not bound to repair these further damages, nor therefore is he bound concerning damages which the mandatary inflicted from an error which could easily have been avoided.

(b) If the one mandating revoked the mandate, and this revocation became known to the mandatary before the damage was inflicted, he is not bound to restitution, provided he is only one mandating and not one counseling (below, n. 523); because when such a revocation is known, the mandate is now extinguished, and if the mandatary inflicts damage, it is perpetrated in his own name. - But, if the revocation did not become known, the damage truly follows from the mandate.

n. 519.

(C) Obligations of the one mandating toward the mandatary. As regards damages which the mandatary himself suffers, the one mandating is bound to repair them if by force, fear, fraud, or another unjust mode he compelled the mandatary to do this, or also if he expressly obligated himself to furnish such indemnity; in the former case he truly is the cause of this damage; in the latter he is bound to reparation by force of contract; - otherwise, the one mandating is not bound: for he who spontaneously, or for an agreed reward, undertakes some business to be carried out, assumes upon himself the dangers of the execution.

n. 520.

2. On the One Counseling.

(A) Notion. One counseling is he who, by showing motive or means, or by persuasion, induces another to inflict damage upon the neighbor; he is distinguished from one mandating, because he does not move another to act in his own name.

Hence counsel can be given especially in three ways: (a) by proposing motives from which it may appear that the thing is licit, or honorable, or useful, or even necessary; (b) by indicating means by which damage can be inflicted, by which, e.g., poison can be made or administered without danger, - or such a house invaded; (c) by using persuasion, e.g., by exhortation, prayers, blandishments, promises, inducing another to harm the neighbor. - Under another respect, especially a twofold counsel can be given: doctrinal, by which it is declared that such an action is evil or good, valid or invalid, etc.; impulsive, by which, abstracting from the question of validity or liceity, another is moved to inflicting damage.

n. 521.

(B) Obligations of the one counseling in the case of impulsive counsel. The general principle is that the one counseling is bound to restitution of that damage which he foresaw as going to follow efficaciously from his wicked counsel. It is clear from what has already been said; for then he is the unjust, efficacious, and culpable cause of that damage. - If two at the same time have furnished unjust counsel to the same person, each is bound to restitution, because each had efficacious influence in the damage.

n. 522.

Applications. (a) If unjust counsel is given to one who is already truly determined to inflict evil, there is no obligation of restoring; because in this case the counsel was not the efficacious cause of the damage.

(b) If another is already determined to inflict damage, and the one counseling persuaded him only as to the mode of doing the thing, or other circumstances of time, place, etc., the one counseling is not bound to restitution, unless accidentally by such counsel he increased the damage, or was the cause of the whole damage; e.g., if by persuading as to the mode he persuaded him to greater damage, he is bound concerning this excess; if he persuaded that the damage should be inflicted sooner, so that the damage would have been impeded if longer delay had been awaited, he is bound to repair the whole damage.

(c) He who counsels a lesser evil to one who is already determined to inflict a greater is not bound to restitution, if the lesser damage is inflicted upon the same person; for in this case he is not the efficacious cause of any damage. But if he counsels that damage be inflicted upon another determinate person, according to the common opinion he must restore, since he truly is the cause of the lesser damage inflicted upon such a determinate person. Yet some say that, even in this case, no place is given to restitution, because, they say, counsel of this kind is in conformity with charity; moreover he who suffers the lesser damage is not reasonably unwilling toward the one counseling, but only toward the damager. - This argument seems weak; for, if the counsel had not been given, damage would not have been inflicted upon this determinate person; but this person is not bound to yield his own right in order to avoid another's greater damage. Hence in practice the former opinion seems to us to be followed.

n. 523.

Corollary. He who revokes counsel given before the damage is inflicted: (a) is not bound to restitution, if the counsel was simple, or bare, namely founded upon no motive, because by revocation the influence of the counsel is removed; (b) but more probably he is bound when the counsel was supported by reasons, if by contrary motives he could not change the mind of the executor; for the reasons previously alleged still subsist, and efficaciously act upon the mind of the other. This is especially true and commonly admitted if the one counseling made known to the damager the mode of perpetrating the damage, without knowledge of which the injury could not have been committed, e.g., by teaching the secret mode of opening doors; or furnished means of inflicting the damage.

Nevertheless some probably hold that the one counseling is not bound to restitution, even when he alleged motives, provided in the retraction he brought forward other motives equally efficacious; for if the executor does not wish to yield, the damage must be attributed to his malice, not to the counsel of another. - Besides, according to all, if the one counseling could not turn the executor away from the unjust purpose, from justice he is bound to warn the owner that he guard himself.

n. 524.

(C) Obligations of the one counseling in the case of doctrinal counsel. (a) He who by force of his office, as a confessor, advocate, physician, gave harmful counsel, whether from vincible ignorance or from evil intention, is bound to compensate the damages following from it, whether to the one seeking counsel or to a third party; for he who seeks counsel from one who is in office has a strict right not to be deceived by the culpable lack of skill or malice of the one counseling; and therefore the one counseling in this case directly violates the right of him who seeks counsel, and indirectly of those who contract with him.

n. 525.

(b) But he who gives counsel, not from office, is generally excused from restitution for the damage which the one seeking counsel suffered, unless however he deceitfully pretended skill; for, the case of fraud being excluded, he who seeks such counsel from an unskilled person and follows it spontaneously exposes himself to the danger of damage, and ought to ascribe to himself the damage which he suffered.

Yet one furnishing wicked counsel is bound to repair damage inflicted upon an innocent third party, provided he foresaw this at least confusedly.

(c) He who gave harmful counsel from ignorance or negligence, without grave fault, certainly from charity and more probably from justice is bound to retract it, provided he can do this without grave inconvenience; if he neglected this, he is bound to restitution. This is clear from what was said above, n. 480.

n. 526.

3. On the Flatterer.

The flatterer, or adulator, must be equated with one counseling; for he is one who by praising or blaming another incites him to inflict damage upon a third party; and therefore he is bound to restitution in the same way and under the same conditions as the one counseling. - But if he approves damage already inflicted, of itself he is not bound to reparation; otherwise, however, if this approval induces another to new injuries, or efficaciously impedes him from repairing an injury.

n. 527.

4. On the One Consenting.

He is called one consenting who by external approval, by vote, or by sentence truly cooperates in damage.¹ But a vote can be twofold: consultative and decretory; here the question concerns a decretory vote, which has the force of precept or law: the former is referred to counsel. - Thus, senators, deputies, and others who by their vote establish an unjust law; judges or jurors who pronounce an unjust sentence.

¹ Therefore here the question is not about any consent whatever furnished to an unjust thing, but about that which is the efficacious cause of the damage.

Now those consenting are bound to restitution as often as they have efficaciously and culpably violated the strict right of another. The reason is that, by making an unjust law or sentence, they concur in the damage inflicted in almost the same way as those mandating.

n. 528.

But the question is when those consenting can be judged the efficacious cause of the damage. Now:

(A) If all at the same time cast an unjust vote, whether by secret ballots, or by rising, etc., all equally concur in the damage, and all are bound to restitution.

(B) The same must be said of those who cast unjust votes from mutual conspiracy, because by a common vote they concur in the damage.

(C) If votes are given successively and by living voice: (a) certainly the first who emit votes are bound to restitution until the number necessary for establishing the law is completed, even if they foresee that others who will consent will not be lacking; for they truly have influence in the law and therefore in the damage; - (b) as regards those who, after the sufficient number has been completed, give votes, a distinction must be made: if the votes are revocable, they are bound to restitution, because the damage is not consummated, and therefore even the last truly cooperate in it; but if the votes are irrevocable, the damage is now complete, and therefore the last probably and speculatively are not bound to restitution, because they are not the efficacious cause of the damage. But in practice, at least for the most part, all the suffrages have influence upon the effect by way of one thing, insofar as they add strength to the executors of the law and render its revocation more difficult; wherefore generally they are bound to reparation.

(D) If before the law or sentence is made, the unjust vote is efficaciously revoked, no place is given to restitution, because now no efficacious cooperation is furnished.

(E) But those who give a vote for a thing less just, not intrinsically evil, when this is the only means of averting a greater evil, do not sin, nor therefore are they bound to restitution.¹

¹ Lehmk., n. 800; Genicot, n. 540; Noldin, n. 481.

n. 529.

Corollaries. (A) In modern societies, in which matters of the greatest moment are determined by the vote of senators and deputies, the duty is incumbent upon all these of emitting votes at the opportune time, so that they may promote the good of the commonwealth and avert the evils which wicked citizens are contriving: therefore not only do those sin gravely who cast a vote for an unjust law, but also those who, without just cause, from grave negligence or fear of displeasing the Government, abstain from giving votes, or are absent at the time of voting, when they can foresee that by silence of this kind grave damage is threatening the public good or some body of citizens; indeed they are bound to restitution, as often as by this way of acting they can be called the efficacious cause of some injustice.

n. 530.

(B) The same duty is likewise incumbent upon those electors who choose senators or deputies, as often as it is foreseen that unjust laws are going to be proposed and established; and this indeed today for the most part ought to be foreseen; for there are many who are attempting utterly to overthrow the religious and social order; and unless upright men perform their duty, form political associations, and at the opportune time elect honorable deputies, soon injustice will prevail everywhere. Therefore citizens who enjoy the right of suffrage, and do not use it because of negligence or vain fear, today of themselves sin gravely, because negatively indeed, but efficaciously, they concur in establishing unjust laws.¹ Not a few are subjectively excused from grave sin, because they do not think about the consequences of their negligence; but upon priests, and laymen who understand the matter better, the duty is incumbent of instructing them, prudently indeed, but unceasingly, so that good citizens, with forces united and federated, may be able to break the audacity and injustice of wicked men.

¹ Concerning this see Ami du Clerge, Le peche electoral, t. XXV, 1903, p. 979, and t. XXVI, 1904, p. 2.

n. 531.

5. On the Receiver.

The receiver, or one furnishing refuge, is he who furnishes refuge or security to an evildoer, as such, or receives and keeps the things taken away by him. - I said: as such, because if he receives him not as an evildoer, but as a blood-relative, or friend, or by force of office (e.g., if the question concerns an innkeeper), and does not intend to furnish him aid, he is not properly a receiver.

Now the receiver is bound to restitution insofar as he makes the evildoer more secure in unjustly inflicting damage upon others, or is the cause why goods unjustly taken away are not restored.

n. 532.

Hence the following are obliged to restitution: (a) merchants and innkeepers who accept from children of families, servants, etc., money or things secretly taken away from parents or masters, because thus they favor thefts of this kind; (b) advocates who in a civil matter patronize manifestly unjust causes, or, in a criminal matter, an unjust accuser; but not those who, in a criminal trial, defend evildoers when these ought from the law itself to have a defender; (c) those who furnish help to a thief or another evildoer, by watching and warning if perhaps persons occur who are going to denounce or impede the crime; (d) tavern-keepers who receive thieves and conceal them lest they be seized.

n. 533.

6. On the Participant.

Notion. A participant can be twofold: in the booty and in the unjust action. If the former, he must restore that which he unjustly received, as will be said below concerning the possessor of another's thing; here we treat only of the participant in an unjust action.

Now cooperation of this kind is called formal, or intentional, if the one cooperating concurs both in the action and in the unjust intention; material, if he concurs only in the wicked action. Thus he who hands over the keys of a house to a thief so that the latter may more easily steal cooperates formally; but materially, if he does this only for this end, that he may avoid his own damage, death or a wound.

n. 534.

Principles. (A) He who formally cooperates with another in an unjust action, and indeed efficaciously, is bound to restitution: for then he is the unjust, efficacious, and culpable cause of the damage inflicted, since he intends to do injury and in fact does it.

The specific malice of cooperation is taken from the nature of the sin to which concurrence is furnished, and therefore in confession this sin must be declared.

n. 535.

(B) He who materially cooperates in a damaging action is excused from sin and from the obligation of restitution, provided the act is not intrinsically evil, and moreover there is a proportionate cause for cooperating. This is clear from what was said where cooperation in general was treated.

Hence it is not licit to participate immediately in the killing of an innocent man, since this action is intrinsically evil; - nor in his mutilation, except for preserving his life or health, from what was said above, n. 308.

It is more probably licit materially and immediately to cooperate in theft in order to avoid an evil of a higher order, e.g., death; for then the owner, if he were to oppose, would not be reasonably unwilling. - Indeed this is licit from a grave cause, if the one cooperating can and wishes to repair the damage going to follow from his cooperation, - or if the damage is light, - or if equal damage would be inflicted even if cooperation were omitted: for in these cases he is not judged reasonably unwilling.

n. 536.

7. On Negative Cooperators.

(A) Notion. There are three negative cooperators: the silent, the one not opposing, the one not revealing. (a) The silent person is he who, before damage is inflicted, does not impede it, at least by warning, when he can and ought; e.g., the guard of a house who, when the thief arrives, does not cry out. (b) The one not opposing is he who, while evil is being inflicted, does not impede it, when he is bound to this, e.g., soldiers who do not prohibit an unjust aggressor from killing an innocent man. (c) The one not revealing is he who, after damage has been inflicted, does not denounce the damager, when he can and ought to furnish this; e.g., customs guards who say nothing about those who defraud taxes.

n. 537.

(B) General principle: Negative cooperators must restore when these two things concur: namely when 1. from justice (i.e., from office or from pact) they are bound to impede the damage; and 2. they can impede it without a graver inconvenience.

For, if they are bound not from justice, but only from charity or another virtue, they indeed sin against these virtues, but not against justice, and therefore they are not bound to restitution. - Now from justice those must impede damage who obligated themselves to this by some pact, or contract, whether explicit or implicit, or who undertook a function, or office, by force of which they are bound to prohibit damage: for there is then a quasi-contract.

Moreover all these are not judged to obligate themselves to impeding damage with the greatest inconvenience to themselves, e.g., with danger to life, unless the public good is in question, which sometimes demands the sacrifice of one's own life.

n. 538.

(C) Principal applications: - (a) A confessor who, even from grave negligence, neglects to warn the penitent about making restitution is not bound to restitution, unless his silence is equivalent to positive counsel, e.g., if the penitent asked the confessor to warn him concerning the duty of restoring; for the confessor, by force of his function, is indeed bound to provide for the spiritual good of the penitent, but not to guard against the temporal damage of others. - But if he knowingly gave a false response, he is bound to restitution as one counseling from office.¹

¹ Concerning this the matter is treated more fully in the Treatise on Penance, n. 415-416.

n. 539.

(b) Parents, or superiors, who suffer damage to be inflicted upon the neighbor by children or subjects, must restore: when by their silence they moved the children or subjects to inflicting damage; or when the children are not yet masters of themselves. - Otherwise, by natural law, they are not bound to restitution; for from office they indeed have care of their own, but are not bound to protect the goods of others. But civil law proceeds further in many regions at least.

n. 540.

(c) The owner is bound to repair damage inflicted by animals of which he has ownership, or use, or custody, when it was caused by his grave negligence; for upon him is incumbent the care of watching lest they harm others.

(d) Servants who are hired as guards of things, e.g., guards of houses, vineyards, and forests, are bound to repair damage inflicted upon those things which have been committed to their care; for by contract they obligated themselves to averting this damage. - As regards servants who did not explicitly undertake such a burden, it is controverted whether, by not impeding damages inflicted by strangers, they are bound to restitution; many indeed affirm, because, by entering the household, they are judged implicitly to undertake the obligation of defending domestic goods against strangers;¹ yet not a few authors, especially modern ones, probably deny this, because, according to our customs, servants obligate themselves in justice to nothing except faithfully carrying out the special function committed to them. - In practice, attention must be paid to the usage and customs of places, and also to the psychological dispositions of servants; nevertheless, according to all, from charity they are bound to impede this damage.

¹ It is said against strangers; for unless from special office they preside over the whole house, they are not judged to obligate themselves to protecting the goods of the master against other servants: for this would be too odious.

(e) Customs guards who from grave negligence do not collect taxes are bound to restitution, because by force of their function they must collect these at the opportune time, and denounce those defrauding them, unless the question concerns things of lesser moment, for which tribute is not usually rigorously exacted.

n. 541.

(f) On which occasion it is asked whether he is bound to restitution who received money from a thief in order not to denounce the guilty person. - If the question concerns him who is bound from office to denounce, he must restore to the injured owner, because he truly is an unjust cooperator; - the same must be said if the money accepted is stolen, because then he is a receiver; - outside these cases, it is controverted: some deny with Lugo,² because then charity indeed is injured, but not justice; others affirm,³ because to receive money and be silent in this case is nothing other than to furnish help and security to the thief. We embrace this latter opinion as more probable, consonant with natural equity and the public good. But restitution must be made not to the thief, but to the injured owner or to the magistrates.

² Lugo, disp. XIX, n. 102; Genicot, n. 547.

³ Crolly, t. III, n. 703.

n. 542.

II. On the Mode by Which Cooperators Must Restore.

Cooperators are often bound to restitution in solidum, insofar as the obligation is incumbent upon individual cooperators of repairing the whole damage which was inflicted by several. This obligation is absolute, if restitution must be made without recourse against the other accomplices; conditional, if one has a right of having recourse against the others.

n. 543.

(A) Principle: Individual cooperators are bound to restitution in solidum as often as they had influence upon the whole damage, so that the whole can morally be attributed to individuals: absolutely, if they are a principal cause; conditionally, if they are a secondary cause.

For each one is bound to repair the whole damage of which he was the unjust, efficacious, and culpable cause; but such is the case with those of whom we are treating, as is clear. - The whole difficulty is in defining who have influence upon the whole damage. - These are:

n. 544.

(a) Cooperators who act by a conspiracy properly so called, namely when individuals efficaciously impel the others to inflicting the whole damage by persuasion, counsels, etc.; e.g., robbers who enter upon a plan of plundering a house and mutually incite themselves to doing this. - But it is doubted whether the same must be said of those who by simultaneous action, but without mutual persuasion, inflict some damage in one and the same thing, e.g., burn the same house or sink a ship, when otherwise the cooperation of individuals is not necessary; many more probably affirm,¹ because morally the whole effect proceeds from individuals; yet not a few probably deny,² because individuals concur only partially in the damage, and therefore are bound only to repairing the part of the damage which they caused.

¹ Salmantic., de Restit., cap. 1, n. 151; Soto, Bonacina, etc.

² Lugo, disp. XIX, n. 83; Sporer-Bierb., tr. IV, n. 351; St. Alphonsus, n. 579.

(b) Cooperators each of whom was a necessary cause for inflicting the whole damage; e.g., jurors who in England or the United States would condemn an innocent man, since the vote of each is necessary for obtaining the condemnation; two thieves unjustly carrying away another's thing, which one could not have carried away.

n. 545.

(c) Cooperators each of whom was a sufficient cause of the whole damage, e.g., two men at the same time discharging a gun at an innocent man, so that each inflicts a lethal wound; or two giving wicked counsel, when either one would have been sufficient for moving the agent to the damaging action.

(d) A damager who is the principal cause of the whole damage, as one mandating, or the thief who seeks other associates for carrying away a stolen thing.

n. 546.

Hence he who joins himself to others already determined to plunder a house, but so that his action is not necessary, is bound only to repairing the part of the damage which he himself inflicted; he who sets fire to buildings which others have already efficaciously set on fire is bound only to compensating the part of the damage which he himself caused; a soldier who in an unjust war inflicted damages with the rest of the army is bound only to repairing the part of the damage of which he himself was the author.

n. 547.

(B) On the order to be preserved among cooperators who are obliged in solidum. A distinction must be made between those who caused the damage in the same grade and those who caused it in a different grade.

If cooperators inflicted damage in the same grade and manner, e.g., if all were mandators, or counselors, having influence upon the agent in the same manner, individuals must restore equally; i.e., each is bound to his own part, and if one or another does not restore, the others must proportionately restore this part, with recourse preserved against him who paid nothing.

n. 548.

1. If cooperators concurred in the damage in a different grade, they are bound in this order: (a) he who detains another's thing; (b) the one mandating; (c) those executing; (d) the other positive causes; (e) finally the negative causes; namely: -

(a) He who detains the thing in itself or in an equivalent, or unjustly consumed it; for the thing cries out to the owner, if it still exists; and, if it does not exist, he who before the others had profit from another's thing ought first to feel the burden of restitution; (b) the one mandating, who is the principal cause in relation to those executing; (c) those executing, because, after the one mandating, they had the principal parts; and if among them one was principal, because he himself gave the mandate to others, he is bound before the others; (d) the other positive causes, which are bound equally, provided they acted in almost equal manner and independently; (e) in the last place the negative causes, among whom that one will be bound first who was held by a stricter obligation of averting the damage.

n. 549.

(C) Corollaries. (a) If the principal cause has restored or obtained condonation from the owner, the secondary causes are bound to nothing. But if the owner has condoned one of the secondary causes, the principal cause is not thereby freed.

(b) If one of the secondary causes has restored, the principal cause is bound to restore to him.

And so, if the holder of another's thing has restored, the other cooperators are bound to nothing. - If the one mandating has restored, the holder must make restitution to him, and the rest are bound to nothing. - If the principal executor has restored, first the holder, and, in his absence, the one mandating, must furnish compensation to the principal executor. - If one of the positive causes has restored, first the holder, afterward the one mandating, third the principal executor, must restore the whole to him. - But if these refuse, the other equal causes must pay their own part to him.

(c) If one of the negative causes has restored, the holder, and in his absence the one mandating, afterward the executor, and at last the other positive cooperators must restore the whole to him; but if these are lacking, the negative causes are bound to pay their own part to him.

n. 550.

Things to be noted for practice. (a) If one of the secondary cooperators doubts, after inquiry has been made, whether the principal author has restored, he is not to be compelled to restitution, since the obligation of restoring cannot be imposed unless it is morally certain. - But if he doubts whether cooperators of the same grade have restored, it suffices that he restore his own part, for the same reason.

(b) Often it is expedient not to compel cooperators to restore the whole damage, even if they are held in solidum. For St. Alphonsus rightly says (n. 579): "Yet it must be noted that the uneducated, although they are held in solidum, rarely is it expedient to oblige them to the whole; since these persons with difficulty persuade themselves that they are held to restoring the part taken away by associates. Indeed it can sufficiently 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 they will restore nothing, if they are obliged to the whole." Hence often the confessor will exhort the unjust cooperator to restore what he owes, according to the dictate of his conscience.

n. 587.

1. He who in any way impedes another from attaining some good to which he has a strict right, whether in a thing or to a thing, commits true injustice, and is bound to restitution proportioned to the damage inflicted.

Thus, e.g., if an advocate impedes a creditor from obtaining payment of a debt; if someone by prayers, persuasions, or other means induces a father to deprive a son of the legitimate part of inheritance to which from civil law he has a strict right.

…and 4 more passages — all of them are listed on the topic page.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 10 passages

Vol. II, Bk. II, Tr. III, Ch. I, Article II: The Notion and Obligation of Restitution

n. 580.

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

n. 581.

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

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

n. 582.

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

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

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

n. 583.

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

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

n. 584.

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

n. 585.

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

n. 586.

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

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

n. 587.

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

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

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

n. 588.

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

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

n. 589.

Summary

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

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

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

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

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

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

Damnose injury, and it alone, begets the obligation of restoring as a remote cause. For unless the author of a damnose injury has restored the harmed person into his right, this person will have less than he ought to have from justice, and this on account of the voluntary fact of another, which is contrary to the equality of justice. Again, nothing is to be rendered to him who, in a way at least imputable to another, has lost nothing.
The proximate roots of restitution are two: another's thing accepted, which, wherever it is found in its proper species or in an equivalent, is judged to cry out to its owner; and injurious acceptance of it, under which name comes every formal nature of damnose injury. That damage be imputed, it is necessary that it follow from an action which is not so remote a cause that it escapes human precaution.
A condition of the obligation is a) theological fault, since otherwise the necessary voluntariness is lacking. But the fault of light negligence or not fully deliberated negligence is not proportionate for restitution of grave matter. Under grave obligation, however, the deliberately unjust man will have to restore matter whose price he did not ignore, but which he thought morally light. Except if the error was founded in the riches of the harmed person: then he will be held under light obligation. He who through several light thefts has arrived at grave matter without grave guilt will have to despoil himself of grave matter under mortal fault; but he who has inflicted several damages without grave guilt will be held by a light obligation of restoring for each.

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

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

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

Standing by natural law, an obligation of compensation in a thing of an order different from the damage inflicted is not demonstrated.
The obligation of restitution is positive. Wherefore it admits causes of excuse and delay.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 7 passages

Vol. II, Tr. XI, Sect. I, Q. III, Ch. IV, Article I. On The Obligation Of Restitution In General

n. ¶38.

¹ Fr. J. Loenarts discusses this matter at great length in Die Restitutionspflicht des Besitzes fremden Gutes (Trier, 1885).

n. 202.

202. Notion. "To restore seems to be nothing other than to place someone again in the possession or dominion of his own thing."² But since certain things taken away can no longer be restored individually or specifically to the legitimate owner, e.g., an eye torn out, a member cut off, restitution hence includes also compensation for damage inflicted, and can be defined: the return of a thing received or the restoration of damage inflicted. According to St. Thomas,³ restitution does not always suppose an unjust taking away of a thing, but can also have place in a contract of loan and deposit; modern theologians, however, are accustomed to take restitution in a stricter sense, namely, for the reparation of damage inflicted.

Restitution differs both from satisfaction and from payment of a debt.

It differs from satisfaction, since satisfaction properly regards the person to whom satisfaction is made; but restitution regards the thing which must be returned, either the same or an equivalent. Then satisfaction regards an injury inflicted or wounded honor, although no other damage was caused; but restitution principally regards material damage inflicted. Hence there can be satisfaction without restitution, e.g., when we make satisfaction to God for sins, or ask pardon from offended parents. Likewise there can be restitution without satisfaction, as in returning a deposit or loan. Both can also be together, as when we return a thing injuriously taken away and at the same time humbly ask pardon.

But payment of a debt requires that the thing which is paid be diverse from the thing for which it is paid, and that it was not yet in the possession of him to whom it is paid. Hence, e.g., he who returns a deposit truly restores, but does not pay; on the contrary, he who gives money for wheat purchased properly pays, but does not restore.⁴

² S. theol. 2, 2, q. 62, a. 1. If that thing was some personal right, there is the so-called restitutio in integrum, concerning which jurists speak; but if it was another thing, there is simple restitution.

³ Ibid.

⁴ Cf. Billuart, De iure et iust. diss. 8, a. 1.

n. 203.

203. Principle. Restitution is the proper act of commutative justice, or in other words: the obligation of restitution arises only from a violation of commutative justice, but not of distributive or legal justice.⁵

The reason is that it belongs to commutative justice alone to establish strict equality of thing to thing (between what was given and what was received, between damage and compensation). But in distributive and legal justice there is only an equality of proportion.⁶ Restitution, however, establishes strict equality of thing to thing. Therefore it is the proper act of commutative justice. Distributive or even legal justice is often joined with commutative justice, and then certainly per accidens their violation also induces an obligation of restitution; e.g., a superior distributes taxes unjustly, so that on account of unjust favor toward one person another is held to pay more and suffers real damage.⁷ - It must be noted that not every violation of commutative justice induces a strict obligation of restitution; e.g., a husband committing adultery violates commutative justice toward his wife, but nevertheless he is not held to restitution unless damage compensable by money has also arisen from the adultery.

⁵ Thus the most common opinion, to which Cajetan, Molina, and Vasquez are said to contradict (in Vermeersch, Quaest. de iust. n. 156); Cajetan, however, is cited undeservedly. For although in his commentary on 2, 2, q. 63, a. 2 he teaches that an unjust distributor of ecclesiastical benefices is sometimes held to restitution toward him who had a right to the benefice, he constantly asserts that restitution is an act of commutative justice. But all theologians teach with St. Thomas (S. theol. 2, 2, q. 62, a. 1 ad 3) that an unjust distributor is sometimes held to restitution, yet not on account of distributive justice alone having been violated, but on account of the conjoined commutative justice having been violated.

⁶ S. theol. 2, 2, q. 61, a. 2.

⁷ Cf. Billuart, l.c.

n. 204.

204. Authors dispute greatly whether restitution, or at least some material compensation, must sometimes be made for merely personal damage, e.g., for defloration, contumely, defamation, mutilation, killing, etc.

It is indeed agreed among all: 1. that material restitution must be made if real damage was joined to personal damage, e.g., that restitution must be made for the expenses which a wounded person has for treatment; 2. that some material reparation is often to be counseled, since in this way the injured man is better satisfied; 3. that material reparation must be made if the judge has imposed it.⁸ But apart from these cases, must restitution be made for purely personal damage? Must, e.g., an unjust wounder give material compensation to him whose face he gravely disfigured with indelible scars? For the affirmative opinion St. Alphonsus⁹ adduces St. Thomas, Cajetan, and Sylvester Prierias, with whom Dominic Soto,¹⁰ Sylvius,¹¹ and Billuart¹² agree. Here are the words of St. Thomas:¹³ "In those things in which an equivalent cannot be recompensed, it suffices that what is possible be recompensed there, as is clear concerning honors which are toward God and parents. And therefore, when that which has been taken away cannot be restored by something equal, such compensation as is possible ought to be made; for example, when someone has taken a member away from another, he ought to recompense him either in money or in some honor, the condition of each person being considered, according to the judgment of a good man." - For the negative opinion St. Alphonsus cites Báñez, Lessius, Lugo, Laymann, Bonacina, Sanchez, Sporer, etc.; and the holy Doctor himself calls this negative opinion more probable and more common, and adduces this reason: "Because commutative justice obliges one to restore according to the equality of the damage inflicted. But where restitution must be made in a diverse genus, no equality is present, nor will there ever be any compensation of the damage; for by any amount of money whatever the damage will not be repaired at all, either in whole or in part."

As far as could be seen, other authors adduce the same or a similar reason for their negative opinion. But this reason does not seem convincing. For, granted but not conceded that the damager cannot repair personal damage according to equality, is it lawful to deduce logically from this: Therefore he is held to nothing? If someone has unjustly taken away 10,000 francs and is unable to restore the whole according to equality, is he not held at least to restore a notable part, if he can? - Then compensation for personal damage is not always and simply impossible. E.g., a rich hunter with a shotgun wounded a worker assisting in a driven hunt (commonly Treibjagd, chasse à rabatteurs), who from the injury has a disfigured face but no other material damage. If now the rich hunter spontaneously (or compelled by a judge) gives a sufficiently large sum to the injured worker, cannot there be sufficient compensation for the pains and disfigurement? Since these things are so, the opinion denying the obligation of restitution indeed does not seem sufficiently proved intrinsically, but nevertheless can be applied in practice: 1. since it is externally probable on account of the authority of theologians, and notably of St. Alphonsus, Doctor of the Church; 2. because he who has unjustly suffered personal damage is often judged to remit material reparation.¹⁴ Moreover, material damage is almost always joined to personal damage, and then assuredly there is a strict obligation of restitution.

⁸ German Civil Code §§ 253, 847, 1300; Austrian Civil Code §§ 1323-1330; Swiss Code of Obligations a. 47.

⁹ Theol. mor. l. 3, n. 627.

¹⁰ De iure et iust. l. 4, q. 6, a. 3.

¹¹ Comm. in S. theol. 2, 2, q. 62, a. 2.

¹² De iure et iust. diss. 10, a. 11, § 1.

¹³ S. theol. 2, 2, q. 62, a. 2 ad 1.

¹⁴ Billuart treats this question clearly, De iure et iust. diss. 10, a. 11, § 1.

n. 205.

205. The necessity of restitution. The restitution, in reality when possible, otherwise in desire, of a thing unjustly taken away or at least now unjustly possessed, or of damage unjustly inflicted, is necessary for salvation if it concerns a notable thing or damage.

It is proved 1. from Sacred Scripture. God prescribed restitution: "If anyone damages a field or vineyard, ... he shall restore according to the estimation of the damage."¹⁵ Therefore He says that the wicked man will not die "if ... he does penance for his sin and performs judgment and justice, and that wicked man restores the pledge and returns the robbery";¹⁶ and St. Paul admonishes: "Render therefore to all their dues."¹⁷

from the holy Fathers. Let one, St. Augustine, be heard: "For if another's thing through which the sin was committed is not returned when it can be returned, penance is not performed but feigned; but if it is truly performed, the sin will not be remitted unless what was taken away is restored; but, as I have said, when it can be restored."¹⁸ These words of St. Augustine were inserted into the Decree of Gratian,¹⁹ and Rule of Law 4 in the Liber Sextus has: "Sin is not remitted unless what was taken away is restored."
from reason. a) To preserve justice is necessary for salvation. But he who does not restore (when he can) what was unjustly taken away, unjustly possessed, and damage unjustly inflicted does not preserve but violates justice, because, namely, he does not preserve equality. Therefore such restitution is necessary for salvation.²⁰ b) Moreover, not to steal is necessary for salvation; but not to restore a thing taken away is continued theft. For it is the unjust detention of another's thing. Therefore, at least after another's thing has been taken away, it must be restored. c) Finally, natural reason dictates that to each one his own must be rendered. Therefore that which was unjustly taken from one's neighbor must be rendered to him.

But I said: otherwise in desire, because, if real restitution is impossible, a firm purpose of restoring as soon as this will be possible is required and suffices. For no one is held to accomplish the impossible. Therefore, when a penitent confesses a grave injury committed, the confessor cannot impart absolution to him unless he promises that restitution will be made as quickly as possible. But if the penitent cannot restore the whole, he ought at least to return the possible part according to that maxim: He who cannot restore as much as he ought is held to restore as much as he can. Hence, e.g., he who took away 1,000 francs by theft and cannot really restore except 100 francs is held under grave sin to make this partial compensation and, moreover, to have a firm purpose of restoring the remaining 900 francs if he can. He who, having made a purpose of making restitution, neglects to execute it, sins. This sin indeed is numerically one, unless, however, the sinner repeatedly elicits the purpose and neglects it. Yet let the confessor not question the penitent too troublesomely concerning a repeated purpose neglected; it suffices if the penitent says for how much time he had the purpose not to restore or culpably neglected restitution.

¹⁵ Ex. 22, 5.

¹⁶ Ezek. 33, 14 sqq.

¹⁷ Rom. 13, 7.

¹⁸ Ep. 153 ad Maced. n. 20, formerly ep. 54 (Migne, Patr. lat. 33, 662).

¹⁹ c. 1, C. 14, q. 6.

²⁰ Cf. S. theol. 2, 2, q. 62, a. 2.

n. 206.

206. The character of this necessity. a) Theologians dispute whether the precept of restitution is an affirmative or a negative precept.²¹

St. Thomas²² says: "The precept concerning restitution to be made, although according to its form it is affirmative, nevertheless implies in itself a negative precept by which we are forbidden to retain another's thing." In practice this controversy is of small importance, provided, however, that it is attended to that another's thing must be restored as quickly as this is possible.

b) Theologians likewise dispute whether restitution is necessary for salvation by necessity of means or of precept.

Without any doubt, actual restitution itself is not necessary by necessity of means; for even he who on account of inability cannot restore can be saved. But restitution in desire is necessary by necessity of means, insofar as no one can be saved who does not have a firm purpose of restoring a thing unjustly taken away or damage unjustly caused.

c) The obligation of restitution is grave if it concerns repairing damage absolutely or relatively grave.²³ Otherwise there is only a light obligation. - Moreover, formal injustice or theological fault is required to induce an obligation of restitution from unjust damaging committed. If, however, a sentence of a judge has intervened, juridical fault suffices.²⁴

Popular error. Entirely unfounded is the frequent opinion of the common people believing that the souls of the deceased are detained in purgatory for so long as their debts are not paid by their heirs. For the deceased, while he was living, either strove according to his powers to repair injuries done, or did not. If the former, he will be saved; if the latter, either grave fault was present, and then he is punished in Gehenna, or there was only light fault, and then he is punished longer or more briefly in purgatory according to the quantity of that fault, but not on account of the negligence of the heirs.

²¹ Cf. Tanquerey, Synopsis Theol. mor. de iust. n. 463.

²² L.c. a. 8 ad 1.

²³ Cf. above, n. 80.

²⁴ Cf. above, n. 93 sqq. Concerning the controversy whether light theological fault induces a grave, light, or no obligation of restitution, see n. 96.

Vol. II, Tr. XI, Sect. I, Q. III, Ch. IV, Article II. On The Roots Of Restitution To Be Made

n. 207.

207. Preliminary observation. The Angelic Doctor²⁵ succinctly notes: "Restitution is not principally ordered to this, that he who has more than he ought may cease to have it; but to this, that what is lacking may be supplied to him who has less." In whatever manner, therefore, some thing has been taken away from its legitimate owner (whether by loan, by theft, by damaging, etc.), it ought to be restored to equality. This restitution indeed is an act of commutative justice. But a thing taken away from its legitimate owner can either be detained by another or be unjustly destroyed. Hence a twofold root from which the obligation of restitution springs is most commonly assigned: another's thing possessed and another's thing destroyed or damaged.²⁶ A third root, namely, unjust cooperation, is undeservedly assigned by some authors. For cooperation induces the obligation of restitution not by reason of itself, but by reason of another's thing either possessed or destroyed, and therefore is reduced to one or the other of the roots assigned. We shall treat individually of the two assigned roots of restitution.

²⁵ S. theol. 2, 2, q. 62, a. 6 ad 1.

²⁶ Cf. S. Alph., Theol. mor. l. 3, n. 548. St. Thomas and the older theologians, taking restitution in a somewhat broader sense, are accustomed to express the two roots of restitution in this way: A man is held to restore either 1. by reason of a thing received, or 2. by reason of the reception of a thing. By reason of a thing received, the possessor in good faith and in bad faith ought to restore another's thing; by reason of the reception of a thing, the obligation of restitution arises: a) from every delict which causes real damage to one's neighbor; b) from certain contracts, e.g., from a loan or deposit (cf. S. theol. 2, 2, q. 62, a. 6; Const. Hohenlohe, O.S.B., Gründe der Schadenersatzpflicht [1914], p. 170 sqq.; Fr. Schindler, Quellen des Schadenersatzes, in Innsbrucker Zeitschrift für Theol. 1915, p. 605 sqq.). There will later be a special discussion of the obligation arising from contracts, and therefore we omit it now.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 40 passages

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, CHAPTER I: On the Obligation of Restoring · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, CHAPTER VI: On Causes Excusing from Restitution · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. VI, ARTICLE I: On Causes Which Suspend the Obligation of Restoring · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. VI, ARTICLE II: On Causes Which Take Away the Obligation of Restitution

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, CHAPTER I: On the Obligation of Restoring

St. Thomas, 2. 2, q. 62; St. Alphonsus, III, n. 582; ed. G., II, p. 73; Lugo, disp. 8, n. 17; Lessius, l. I, c. 7, dub. 4; Carriere, III, n. 1021; Vermeersch, o. c., n. 155; Hohenlohe, Grunde der Schadenersatzpflicht. - As to practical cases, besides Lehmkuhl, Genicot, Bucceroni, see Ami du Cl., Tabl. gener., word Restitution, and Linz. Quart. Schr., v. Restitutionspflicht.

There are two things concerning which we must dispute here: 1. the notion and gravity of the obligation of restoring; - 2. the roots from which this obligation arises.

n. ¶3.

1. On the Nature and Gravity of the Obligation of Restoring

n. ¶924.

DEFINITION. Restitution (rursus statuo) is defined: an act of commutative justice by which damage inflicted on one's neighbor through injury is repaired.

Therefore restitution differs: 1. from satisfaction; for satisfaction is the compensation of an offense which was inflicted without external damage; - 2. from payment; for payment is the counting out of a price or the extinguishing of a debt, to which one is held without having inflicted injury, for example the payment of the price for a thing bought.

It is said: an act of commutative justice; therefore, when it is a question of legal or distributive justice alone, there can be no place for restitution strictly so called. But if it is sometimes said, for example in n. 949, 3rd Condition, 3, that something must be restored, this is to be understood of restitution improperly so called, which is rather the necessity of obeying a just law (Vermeersch, de Just., n. 158).

DIVISION. A twofold restitution is distinguished: 1. Restitution in the stricter sense, by which another's thing or its equivalent is returned. - 2. Compensation, by which damage unjustly inflicted and profit ceasing are repaired.

If satisfaction or reparation of the offense is joined to compensation, there is had what in Law is called full satisfaction.

n. ¶925.

PRINCIPLES. I. Restitution must be made, in reality or in desire, by precept of natural and positive Law. a) Of natural Law: for nature dictates: As you wish that men should do to you, so you also do to them likewise (Luke 6:31; Matt. 7:12). But each one seeks from his soul the reparation of injury. - Besides, the law of nature intimates that spoliation which is not repaired by restitution is truly prolonged (cf. n. 726). b) Of positive Law: for it is said in Exod. 22:5: If anyone shall damage a field or vineyard ... he shall restore according to the estimation of the damage; and Rom. 13:7: Render to all their due. Hence St. Augustine says: "The sin is not remitted, unless what has been taken away is restored, when it can be restored" (Epist. 153, to Macedonius, n. 20). Cf. Rule 4 in the Sext.

We said 1. Restitution must be made by precept, that is, restitution is not to be made by necessity of means; for it is necessary by the same reason as the omission of theft, and not otherwise. Hence he is not excluded from eternal salvation who in good faith, or because of inability, omits restitution.

It must be made in reality or in desire; for he who cannot restore is never excused from restitution in desire, that is, he must always have a firm purpose of restoring when he can; otherwise he would retain an affection for an evil thing.

n. ¶926.

II. The precept about restitution to be made is affirmative and negative at the same time. It is affirmative according to its form; it is negative insofar as it includes the prohibition of detaining another's thing. Thus St. Thomas (2. 2, q. 62, a. 8, ad 1).

Hence: 1. The obligation of restoring urges always and for always, that is, at every moment, until restitution has been made. - 2. Restitution must be made as soon as it morally can be made, because at no time is it licit to retain another's thing without the owner's consent, at least presumed.⁰¹ - 3. He who cannot restore the thing here and now is held, at least according to his condition, to take care that he satisfy his obligation as soon as possible; because one obligated to an end is obligated also to the means. - 4. He who cannot restore the whole is held to the part, if it is a question of a divisible thing (H. Ap., X, 118).

n. ¶927.

III. The precept about making restitution obliges gravely in grave matter, and lightly in light matter. Thus all.

Hence: 1. He who has stolen a great sum of money from his neighbor, or has inflicted grave damage, is held under grave sin to restore at least that part which completes grave matter, although this in itself would be light. - 2. He who has inflicted light damage is held to restitution under light sin, and with inconvenience proportioned to the thing. Therefore he can more easily be excused from restitution, especially from restitution to be made to the owner himself (III, 534 seqq.).

These things are regular; but let it be noted (III, 706): a) In doubt whether a thing taken away and existing in species is grave or light matter, you are held under grave sin to restore the thing itself, lest you expose the owner to the danger of undergoing grave damage. b) If you

doubt whether you owe more or less, you are held to the less; likewise, if you doubt whether the damage which you inflicted is light or grave, you are not held to compensate except light damage (see n. 44, and 949, 4th Condition). c) Indeed it can happen that there is only a light obligation of restitution, or none, however grave the matter may have been in itself. Cf. the things to be said below in nn. 949, 950.

n. ¶928.

Corollaries. 1. He who is unable to restore in one genus of goods is not held to restore in another inferior genus; for example, he who has killed, wounded, or defamed a man is not held to give money, even if he cannot otherwise compensate the damage. The reason is, says St. Alphonsus (III, 627), "because commutative justice obliges to restoring according to the equality of the damage inflicted; but where restitution must be made in a different genus, there is no equality, nor will there ever be any compensation of the damage; for by any money whatever the damage will by no means be repaired, neither in whole nor in part."

Nevertheless, the opposite opinion, which is that of St. Thomas (2. 2, q. 62, a. 2, ad 1), is also probable. - Apply the doctrine of St. Alphonsus to those cases where there is damaging in spiritual goods: for these, as regards themselves, cannot be compensated by money. Besides, often an injury can be repaired in the same order, for example by leading back the scandalized person into the good way, by correcting errors. Noldin, II, n. 464; Ami du Cl., 1911, p. 409.

A judge or Superior can, for an injury concerning one good, impose that, by reason of punishment, something be furnished from goods of another order, and this sentence must be obeyed.

Moreover the injured person, since he has the right of denouncing before the judge him from whom he has received injury, can accept money from that man, so that he omit the denunciation. Thus, for example, a woman violently oppressed, since she is able to compel the violator before the judge, can, in order to renounce her right, exact money from the scoundrel (III, 556; cf. German Law, § 847). See another example, n. 879, 3, note a.

Finally confessors can impose on a penitent as a penance, or from equity, that he bestow something upon the injured person.

n. ¶929.

PRACTICAL RULES. I. Unworthy of absolution are, grave matter always being presupposed: 1. those unwilling to restore, while they can do this; - 2. those not able to restore, but neglecting to obtain for themselves the faculty of restoring; - 3. those committing to an heir a restitution which they themselves can make by themselves; - 4. those able to restore wholly, and restoring only a part. See nevertheless the things to be said presently under III. - And here it must be noted that absolution is to be deferred for him for whom restitution is morally possible, until he has satisfied the obligation of restitution: "For goods are a certain blood, which is not torn out from the veins except with great force and pain. Hence, if restitution is not made before absolution, it will be made afterward with the greatest difficulty, as experience very much teaches us. - Only some penitent can be excepted who would be of such fearful conscience that no place of doubting concerning him would remain" (III, 681, 682; Praxis Conf., n. 43).

II. With many, especially with the dying, one must act cautiously: 1. If the penitent seems to be in good faith, and no time remains for prudently admonishing him concerning his obligation, or if the admonition is foreseen not to be useful, it must be omitted. - 2. But if the admonition is hoped to be useful, or if the penitent is in bad faith, or in vincible ignorance, he must be admonished concerning his obligation strongly and at the same time sweetly, and helped to carry it out at once. 3. If the obligation is occult and cannot be fulfilled at once, the sick person must be induced to commit the sum of money to the confessor himself, or rather to a faithful man, so that afterward it may be remitted secretly to the creditor; or, if it can be done prudently, to leave that sum in his testament to the same creditor, mention of restitution being omitted. 4. If the obligation is not occult, and cannot be fulfilled at once, let the confessor bring it about that it be fulfilled, whether through the heirs, or through a note to be handed to the creditor, etc.

III. As regards the very quantity to be restored, one must act cautiously in this likewise; for in those causing damage, especially in cooperators, good faith is very frequently found. Hence, if admonition concerning restitution, or concerning its quantity, seems by no means or doubtfully useful, the debtor must be left to his own conscience. But if the thing itself is doubtful, and possession favors the penitent, one must in practice pronounce positively for him (cf. n. 927, note).

n. ¶4.

2. On the Roots of Restitution

n. ¶930.

The root of restitution is the cause on account of which restitution must be made.

The remote and general root of restitution is every real lesion of commutative justice, so that one's neighbor has less than by strict right he ought to have; hence equality must be restored by the rendering of the thing (Viva, de Restit., init.).
The proximate and special root of restitution is distinguished as twofold: a) the thing accepted, or the retention of another's thing. To this root is attached the obligation of restoring or paying from contract. b) Unjust acceptance, or unjust damaging, even if another's thing is not retained (III, 548; cf. St. Thomas, 2. 2, q. 62, a. 6).

For discerning the first root, attention is paid only to this, that another's thing is in the actual possession of this or that man; as regards the second root, attention is paid to the will, to the actions of the damager, insofar as they are directed against the legitimate possessor, under the motion either of concupiscence, as in theft, or of hatred, as in damaging. Therefore from the first root, the quantity to be restored is defined by the quantity of another's thing which you retain in its own species or in equivalent; from the second, by the quantity of damage which you have voluntarily inflicted (Vermeersch, o. c., n. 160).

n. ¶931.

PRINCIPLES. I. From the thing accepted there arises the obligation of restoring, if another's thing is found with someone without a just title, although it has come to him without fault. The reason is that a thing always cries out for its owner, and the inequality remains until the thing has returned to its owner; for the one retaining has more than is his, and the other less. No one loses his right except by voluntary consent, or by his own fault of injustice, or by disposition of Law, or by a fortuitous event; and therefore the owner alone of himself enjoys the right of possessing the thing and enjoying it. Hence the axioms of Law: A thing cries out for the owner; - A thing bears fruit for the owner; - A thing naturally perishes for the owner; - No one can be enriched from another's thing (Salmant., tr. 13, c. 1, n. 6).

Note. 1. The obligation of paying a debt from a contract or quasi-contract is reduced to this first root: insofar as payment not made is an unjust retention of that which is owed to another, although the debt has not come from fault.

But if deceit, fraud, violence, or negligence in fulfilling an office has intervened in entering upon or executing a contract, there arises in these cases also the second root, concerning which something must immediately be said.

n. ¶932.

II. From unjust acceptance there arises the obligation of restoring if someone knowingly and unjustly has occupied another's thing, for example by theft, fraud, usury, etc. The same obligation also arises from unjust damaging; for he who damages another, even without his own advantage, takes away from him and, by fiction of law, occupies something, namely that very thing in which he damages him. - Hence, since in both ways the inequality is culpably posited, this must be repaired by an act of justice, that is, by restitution, so that the whole foreseen damage is repaired.

n. ¶933.

From these things you will gather: 1. The burden of restoring can arise from one root only, or from both. Thus, for example, a thief who has accepted and retains another's thing is held to restore under both heads. If he has consumed the thing and has not become richer, he is obligated only from unjust acceptance.

Between the two roots there is a manifold difference: a) The first can arise without a harmful action; but not the second, which always arises from a delict, as is sufficiently clear. b) The former can perish without restitution being in fact made, for example if the thing perishes by chance, because it perishes for the owner; not likewise the latter. c) One obligated only from the thing accepted must restore as much as he detains; yet this without his own detriment, because he has not admitted fault. But one obligated from unjust acceptance, or from delict, must restore as much as he has damaged; so that, namely, he render not himself but the other unharmed (Viva, l. c.; cf. Lugo, disp. 8, sect. 2, n. 25).
The burden of restoring from commutative justice does not exist unless at least one of these roots is present. Therefore the sentence of a judge then only introduces an obligation of commutative justice when a root of restitution accedes to it; otherwise it obliges from legal justice alone. Thus, for example, when an informal testament has been rescinded by the sentence of a judge, the inheritance does not pass into the ownership of the testamentary heir, who, if he detains it, is held to restore from the thing accepted. On the contrary, a servant condemned to repair damage inflicted from merely juridic fault is held to furnish this from obedience only, by force of legal justice, because he neither detains another's thing nor is the author of formally unjust damaging (cf. n. 949, 3rd condition). - But the sentence of a judge which protects the right of an author, of the finder of treasure, etc., obliges from commutative justice, since the law itself establishes such rights.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, CHAPTER VI: On Causes Excusing from Restitution

St. Alphonsus, III, nn. 696-706; ed. G., II, p. 161; Lugo, disp. 21; Lessius, l. 2, c. 16; Billuart, tr. VIII, art. 20; Carriere, n. 1267; Lehmkuhl, I, 1228; Reuter, P. III, n. 351; Noldin, II, 514; Genicot, I, n. 557; Aertnys, tr. VII, n. 359.

n. ¶1016.

Causes which excuse from restitution are those on account of which an obligation of restoring already contracted is either suspended or entirely taken away.

The general principle can be stated thus: Whenever the creditor reasonably ought to consent that restitution be deferred or omitted, this can be deferred or omitted, even if the creditor were in fact unwilling. The reason is clear: for where the owner is not reasonably unwilling, the detention of another's thing cannot be called unjust. Cf. n. 727.

But to elucidate that principle, we shall treat especially: 1. of causes which suspend the obligation of restoring; - 2. of causes which take it away.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. VI, ARTICLE I: On Causes Which Suspend the Obligation of Restoring

Besides invincible ignorance, which as long as it perseveres excuses from restitution, three other causes are numbered, namely: 1. the inability of the debtor; - 2. damage of the creditor or of a third party; - 3. cession of goods.

Whether doubtful payment of a debt excuses, see the things said in n. 947.

n. ¶3.

1. Inability of the Debtor

There can be a twofold inability of restoring: a) physical or absolute, when the debtor does not have whence he may restore; b) moral, when indeed he absolutely has whence he may restore, but he cannot restore without great difficulty, whether because of present necessity of himself or of his own, that is, of children, father, mother, spouse, or because of damage going to follow from restitution.

n. ¶1017.

PRINCIPLES. I. Physical inability suspends the obligation of restoring. The reason is clear; for no one is held to the impossible (see nevertheless the things said in n. 926).

Physical inability, if it is perpetual, extinguishes the obligation of restoring. Extend this to a religious with perpetual vows, guilty of injustice; who nevertheless, according to some authors, must seek condonation from the Superior; otherwise such a religious would be of better condition than laymen obligated to restitution (Ami du Cl., 1913, p. 1032; 1914, p. 366).

II. Moral inability likewise suspends the same obligation: that is, no one is held to restore immediately if from restitution a notably greater detriment would come upon him than would be the advantage of the creditor. The reason is that, in such a case, the creditor prudently and reasonably ought to permit the suspension of his right, so that the order of charity may be preserved (III, 598). Cf. Ami du Cl., 1912, p. 634.

n. ¶1018.

Therefore the debtor, even from delict, is excused:

If he cannot restore without danger to the salvation of his own soul or of his own; for example, if there is danger lest the wife or daughters prostitute themselves, lest the sons give themselves to robberies.
If he cannot restore without danger of life or reputation, provided the loss of reputation is not least or lowest with respect to the great and notable damage which the creditor would undergo in goods (III, 698).

Thus, for example, a notary is not held to reveal a false instrument composed by himself, in order that with gravest detriment to his reputation and danger of prison he repair damage inflicted on others in goods of fortune. Yet he is held with even graver damage of fortune (cf. above n. 915).

If he cannot restore without damage of his own so great that by it twice the value of the thing is exceeded. Likewise more probably, if he cannot restore immediately without grave damage, provided the creditor does not undergo equal damage from the delay of restitution. - Nor indeed can the debtor defer payment because of mere loss of profit, except when from the delay no damage would come upon the creditor (III, 697; H. Ap., X, 117).
If by restoring he could not live according to the decency of his justly acquired state. Hence if a nobleman, for example, cannot pay immediately unless he deprive himself of servants, horses, arms, etc.; or a chief citizen, unless he takes up a mechanical art unaccustomed to himself; or a farmer, unless he sells the grain necessary for cultivating the fields; or a merchant, unless with great detriment he sells obligations of credit; or a mechanic, unless he sells his instruments by which he lives: he can defer and restore gradually without loss of his state (III, 698).

We said justly acquired; for if he had acquired his state unjustly, for example by thefts or frauds, he could not preserve it with damage to the creditor, as is commonly taught. And Doctors think the same must be said if the debtor culpably, for example by games, gluttony, has cast himself into the aforesaid necessity. "But, notwithstanding this," says St. Alphonsus (III, 702; ed. G., II, p. 170), "whenever a debtor, because he has played, etc., would fall from his justly acquired state, it seems hard to me and to other learned men to obligate him to full restitution. St. Antoninus and others rightly advert that, in such a case, the debtor is always held to lessen expenses so that he may restore at least what he can."

n. ¶1019.

Note. a) If the debtor, because of restitution, either alone or with his own, would be cast into extreme necessity, he is not held to restore, although the thing exists in species, and the owner is in the same necessity. The reason is that, in such a case, all things are common, according to the things said in n. 914. But otherwise, if the creditor himself also had been cast into extreme necessity precisely from that particular theft; because to take away from someone a thing necessary to him for life is the same as to kill him; hence, in that case, the condition of the owner possessing first ought to be better.

b) If it is a question only of grave necessity, one must distinguish: either the debtor alone, or the creditor alone, or both are in that necessity. If the first, restitution can be deferred, as is clear from the things said. If the second, the debtor must restore, although he be cast into equal necessity, because in equal necessity the condition of the creditor is better, as one having a right to a thing. If the third, it is probable that restitution can be deferred; because the debtor through restitution would expose himself to much greater damage, since from grave necessity he would be cast into quasi-extreme necessity. Except: if the thing exists in species; or if the creditor is found in equal necessity precisely because of the theft of that thing (cf. n. 1018, 3). See St. Alph., III, 701-703).

n. ¶4.

2. Damage of the Creditor or of a Third Party

n. ¶1020.

PRINCIPLES. I. If the owner of the thing to be restored would abuse it for sinning, the debtor is not held to restoring. The reason is given by St. Thomas (2. 2, q. 62, a. 5 ad 1): "When the thing to be restored appears to be gravely harmful to him to whom restitution must be made, or to another, it ought not then to be restored to him, because restitution is ordered to the utility of him to whom it is restored. For all things which are possessed fall under the aspect of the useful. Yet he who thus detains another's thing ought not to appropriate it to himself, but either to reserve it so that he may restore it at a fitting time, or even to hand it over to another to be preserved more safely" (III, 697).

Hence, unless grave damage or inconvenience threatens you, you cannot restore: 1. money given to you as a loan to him who wishes to use it for sinning; 2. an altogether depraved book which can be of no utility; because, since you easily can impede the sin of another, by not impeding it you sin against charity (cf. n. 493).

II. If the owner of the thing is foreseen to be about to abuse it to the damage of a third party, the debtor is held to deny it when he can without his own graver or at least equal damage. The reason is clear from the cited words of the Angelic Doctor. - Indeed, in such a case, he would sin not only against charity, but also against justice, as Lugo and others commonly teach; because one's neighbor has a right that you not cooperate in his damage by handing something to another for his ruin (III, 697 and 753; H. Ap., X, 116). Recall the things said in n. 520, 3.

Hence, a debtor, even from delict, who defers restitution because of the true utility of the owner, is not held concerning the lesser damages consequent upon the delay, because he rightly managed the owner's matter (Lugo, disp. 21, n. 31; Croix, III, P. 2, n. 426).

n. ¶5.

3. Cession of Goods

n. ¶1021.

DEFINITION. Cession of goods is the abandonment of all goods which a debtor, unequal to paying, makes to his creditors in order to preserve his liberty.

DIVISION. Cession is either 1. voluntary, or freely accepted by all creditors; and then it has those effects concerning which the debtor and creditors agree; or 2. judicial, that is, declared through the sentence of a legitimate judge. This is a certain benefit conceded by the law itself to an unfortunate debtor of good faith, so that thus, notwithstanding any other stipulation to the contrary, he may be freed from the annoyances of creditors.

Let it be noted from modern Law: 1. Bankruptcy, the state of a debtor ceasing to pay, is either inculpable or culpable. In the former case, if the bankrupt exercises commerce, his whole matter is handled before the tribunal of commerce, where there exists faillite; otherwise, before the ordinary tribunal, deconfiture. - In the latter case, bankruptcy

is judged either as a delict (banqueroute simple) or as a crime (banqueroute frauduleuse), and thence is punished with proportionate penalties.⁰¹

Creditors cannot refuse a judicial cession, except in the cases excepted by law, namely if the debtor is a foreigner, a prodigal, fraudulently bankrupt, condemned for theft or usury, etc.
Judicial cession does not confer on creditors, by the fact itself, ownership of the goods of the bankrupt; but it confers a right by force of which those goods are administered in their name and then sold for their utility.

n. ¶1022.

PRINCIPLES. I. By a cession of goods carried out without fraud, the obligation of restoring is indeed suspended, but is not taken away. 1. It is suspended, both in the internal forum, on account of inability; and in the external forum, by the benefit of the creditors or of the law itself. 2. It is not taken away: because, unless the contrary is established somewhere, neither the law, at least in most European States,⁰² nor commonly the creditors intend to remit to the debtor that part of the debt which he has not yet been able to pay. Hence, if afterwards the debtor acquires a richer fortune, he is held to full payment; indeed he is held, as far as he can, to labor and to acquire goods, so that he may be able to satisfy full payment (III, 699).

It was said unless the contrary is established somewhere: namely either 1. by the law and its common interpretation; for this, as in prescription, can, with a view to the common good, transfer ownership. This is commonly held in England, according to Crolly (III, n. 1201), and in North America (Konings, n. 861); - or 2. by the creditors, if, for example, they have not sought payment for thirty years.

Indeed there are not lacking authors who probably assert that a composition of the debtor with the creditors is equated with a certain virtual remission. Cf. Aertnys, l. III, n. 365; Ami du Cl., 1910, p. 1069.

n. ¶1023.

II. By a cession of goods, nothing is taken away from the debtor's right to a suitable support of himself and of his own. For the cessor is not of a worse condition than other debtors, for whom grave necessity of family is a just cause of delaying restitution (cf. n. 1008, 2).

Hence, if the debts arise from contract, the cessor is held to pay them if he has acquired more than is required for the decency of his state. But if they arise from delict, for example from theft, usury, he can retain for himself only those things which are necessary for living (H. Ap., X, 117).

From these things you will resolve: 1. A wife and children lawfully receive food from a father burdened by debts, if they do not have support from elsewhere. Indeed, even though the wife could live on her own goods or on those of relatives, she can nevertheless receive food from her husband, even a usurer, who is unable to restore; because the husband is no less held to feed his wife than to pay debts (III, 695).

A servant lawfully receives wages from a master burdened by debts, if he is necessary to him, or if he labors for the utility of the creditors. But if he is not necessary, and he notices that by such service the master is rendered unable to satisfy debts, he is held to depart, lest he become the cause of damage to creditors. He can nevertheless lawfully retain what he has already received in good faith (III, 694; H. Ap., X, 115).
He who has accepted gifts from a man burdened by debts is held to restitution, if by this ill-timed liberality the faculty of satisfying his creditors is taken away from the debtor; for by such acceptance he becomes the positive cause why the creditors suffer damage (III, 722; H. Ap., X, 128). See nevertheless below n. 1065.
He who is burdened by debts cannot without injustice refuse an inheritance by which he can become equal to paying (Ami du Cl., 1910, p. 94).

N. B. Whether one burdened by debts can enter RELIGION, see n. 2139.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. VI, ARTICLE II: On Causes Which Take Away the Obligation of Restitution

Three causes are numbered: 1. legitimate compensation; - 2. condonation of the creditor; - 3. authority of public power. On transaction, which is usually joined to these causes, see n. 1160.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, CHAPTER I: ON THE OBLIGATION OF RESTITUTION · Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, CHAPTER IV: ON THE CAUSES EXCUSING FROM RESTITUTION

1. Legitimate Compensation

n. ¶1024.

Compensation is one thing improper, or extralegal, by which the creditor satisfies himself, by taking a thing of the debtor equivalent to the debt. It is another thing proper, or legal, and is had when two persons are mutually debtors to each other: for example, I owe you one hundred for grain, and you owe me one hundred for wine. In Law this is called "the contribution of debt and credit with each other."⁰³

Each compensation extinguishes the obligation of restoring, because it removes inequality (cf. n. 924).

n. ¶1025.

- IT IS ASKED. Whether he is freed from restitution who pays a debt to the CREDITOR of his own creditor?

Resp. Affirmatively of itself and in the rigor of Law. Thus, for example, I owe you one hundred francs, but you owe one hundred to Titius: I satisfy you by paying your creditor Titius; for by paying to him that which you owe him, I acquire the right which he had of requiring his debt from you; and from this there arises the contribution of debt and credit with each other, or legal compensation. We said: 1. of itself; because I am not freed if perhaps you are still compelled to pay, or if you have privileged or hypothecary creditors; - 2. in the rigor of Law; because such payment, if it is made without cause, will be illicit on account of the various inconveniences to which it is liable. But there would be a sufficient reason if the creditor of the creditor could not otherwise recover his debt (III, 699, 700). But in the external forum such payment can be impugned.⁰⁴

n. ¶3.

2. Condonation of the Creditor

NOTION. Condonation, in the matter of justice, is the remission of a debt freely made by a creditor capable of condoning.

n. ¶1026.

PRINCIPLE. To take away the obligation of restitution, express condonation is not always required, but tacit, or even presumed, condonation suffices, provided it is morally certain. The reason is that, for accepting or retaining another's thing without injustice, the positive will of the owner is not required; but it is enough that he not be positively unwilling; namely, this excuses you from fault, at least mortal fault. But if the owner is rightly supposed to be unwilling with respect to the mode, for example the mode of taking secretly, the one omitting restitution indeed does not sin mortally, yet he cannot be excused from venial sin.

Hence: 1. A master who expels a servant, a worker, on account of light thefts, tacitly remits to him every obligation, because he asks nothing. Yet from this it does not follow that condonation is present with respect to gifts which the servant perhaps made to strangers. - Similarly, a master is presumed to remit every obligation if he has caught a servant in manifest grave theft, and expels him or only rebukes him, without demanding restitution. 2. Parents are rightly presumed to remit to their children the obligation of repairing thefts even grave ones, if the things have already been consumed and the coheirs are not gravely harmed.⁰⁵ See also n. 907. - 3. With respect to the poor, who have stolen small things from different persons, condonation on the part of the owners is presumed. If they have committed little thefts to the damage of one person, partial condonation can be presumed.

Note. How, in the external forum, condonation or remission of a debt is proved or presumed, see in the various Codes.⁰⁶

n. ¶4.

3. Authority of Public Power

n. ¶1027.

Prelim. The faculty of transferring ownership belongs both to the civil prince, in order to the temporal public good, and to the Supreme Pontiff, in order to the spiritual public good (cf. n. 841 and 873, note). Thence it follows that the burden of restitution can, when a just cause intervenes, be taken away by either power.

To this are referred the things which above we said at length concerning the finding of treasure, concerning liberative prescription, concerning the fruits of another's thing perceived in good faith. It is useful to add a few things here: 1. concerning the sentence of a judge; - 2. concerning composition with the Supreme Pontiff; - 3. concerning sanation upon goods of the Church unjustly alienated.

n. ¶1028.

I. On the sentence of a judge. Among all it is admitted that the sentence of a judge, relying on truth, takes away the obligation of restitution. For it is supported by the authority of laws, which, by reason of the common good, legitimately transfer ownership of things.

Hence, you are not held to restore: 1. if the judge, as a penalty for some delict committed by your creditor, imposes this fine, that you do not restore to him what you owe him; - 2. if from equity he adjudges to you something which otherwise, in the rigor of justice, would not be owed to you (Viva, de Rest., q. 5, a. 4, III).

n. ¶1029.

II. On composition with the Supreme Pontiff. Composition with the Supreme Pontiff is had when the Roman Pontiff, from his supreme power, transacts in such a way that one part of the debt indeed is expended on pious causes, while the other part is condoned to the debtor, while nevertheless supplying from the treasury of the Church the spiritual utility which would come to the owner if the whole debt had been given in alms (cf. H. Ap., X, 117, 2; Lugo, disp. 21, n. 91).

There is no controversy that a legitimate composition frees the debtor in the forum of conscience. The reason is that the Supreme Pontiff orders all things in this way on account of the common good. Nor are the rights of the legitimate owner altogether ignored, since compensation accrues from spiritual goods.

We said: 1. Legitimate compensation. For it is required: a) that the goods be altogether uncertain; for if the owners are known in some way, as in the small thefts of merchants defrauding in weight and measure, they cannot, without injury, directly and without their consent, be despoiled; b) that there be a just cause; otherwise the composition would indeed be valid, but illicit in ecclesiastical things; but in other things, when cause is lacking, it would also be invalid, because, in the first case, the Supreme Pontiff dispenses in his own law, but not so in the second. - 2. It frees the debtor; for a composition once made is not revoked, although the owner appears; because ownership has already been legitimately transferred. Thus Lugo against others, who will that the debtor in that case is held to restore to the owner that in which he has been made richer (III, 592, 593).

Note. a) A priest who is anxious on account of Masses celebrated with doubtful matter can be admonished to obtain a composition. Cf. n. 1620. - b) A composition with respect to uncertain goods is made through the Bull of the CRUSADE, for those to whom it has been granted. It can also be obtained from the SACRED PENITENTIARY, which has power, from the Bull Pastor bonus, to remit part of ill-taken or retained goods, if the owner is uncertain, the case occult, and the delinquent poor. But the part which is not remitted is to be expended on the poor or on pious works, and indeed, if it can be done, in those very places where the unjust acquisition of those goods was made (cf. n. 999). c) As concerns Bishops, the truer opinion holds that the faculty of composition does not belong to them, since it is an act of supreme power (III, 696, 2).

n. ¶1030.

- III. On sanation. Sanation upon goods of the Church unjustly alienated is said to be done when the Supreme Pontiff, as supreme administrator of the goods of the Church, on account of a just and most grave cause, convalidates alienations of this kind. Thus he convalidated the alienations which were made in the time of the French disturbance. For Austria, with respect to the tithes taken away, sanation was given through the Concordat, 18 Aug. 1855.

n. ¶1031.

- Points to be noted. 1. A GENERAL SANATION, for a whole kingdom, has often been granted by the Holy See. Such a sanation was made: a) For ENGLAND, after Henry VIII, from the faculty granted by Julius III to Cardinal Pole. b) For FRANCE and BELGIUM, on 15 August 1801 through the Bull Ecclesiae Christi.⁰⁷ c) For the kingdom of the TWO SICILIES, on 7 March 1818 through the Constitution In supremo. d) For PIEDMONT and the duchy of GENOA, on 20 Dec. 1816 through the Brief Datis ad nos demum. e) For PRUSSIA, on 16 July 1821 through the Constitution De salute animarum.⁰⁸ - f) For the whole kingdom of Sardinia, on 14 May 1828 through the Bull Gravissimae of Leo XII. g) For SPAIN, a twofold sanation was made: the first through the concordat of 16 March 1851, the second through the additional convention of 25 August 1859 (cf. Gury-Ferreres, I, n. 750; for Latin America see his Appendix to n. 558).

By force of these sanations, as the Sacred Penitentiary declared on 10 March 1818, ecclesiastical goods already exist in the full ownership of the acquirers, so that they may safely and freely retain them, enjoy them, and even alienate them, both in the external and internal forum, provided nevertheless that the acquisition was made according to the laws then in force. Yet the Holy See exhorts those acquirers that, according to their piety and religion, they be willing to satisfy the pious burdens of Masses, alms, and other similar things, which perhaps formerly were fixed to those goods.⁰⁹ Similar rescripts came forth for upper Italy in the years 1845 and 1847.¹⁰

From these things you will gather which ecclesiastical goods are still SUBJECT TO RESTITUTION: a) namely those which were never occupied by the Government, but escaped its hands, because they either remained with private persons, for example the tenants of those goods, or were usurped by private persons themselves by force; b) goods which, after conventions had already been entered upon with the Holy See, for example in France after the concordat, were occupied by the Government; c) goods which, while conventions were being entered upon, were promised by the Government as to be handed over to the Church, and yet afterwards were not handed over. All these things are evident of themselves.

Restitution of these goods is to be made according to the rules to which possessors of good or bad faith are subject, namely as the usurpers, or their heirs, are situated in good or bad faith.¹¹

NO GENERAL SANATION has been promulgated after the recent unjust spoliation of the Religious Orders or of the Church in France. Only composition is admitted, which is, as the Sacred Penitentiary says, at once equitable and benign. See the decisions of the Secretariat of State, 21 Sept. 1907, and of the Sacred Penitentiary, 16 Jan. 1909.¹² This same thing had already previously been established with respect to goods of the Church usurped and not yet condoned, for example goods usurped in Italy from the year 1860.

Bishops have obtained peculiar faculties by force of which acquirers of ecclesiastical goods can, under certain conditions, be admitted to composition. The faculties are granted for a year according to the norm given by the Sacred Penitentiary, on 15 April 1892.¹³

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 17 passages

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, CHAPTER I: ON THE OBLIGATION OF RESTITUTION

Restitution, as to the name, sounds the same as the placing of a thing into its former state. As to the thing, it is the reparation of injured strict right.

n. ¶713.

Principles. - I. Restitution in reality, or at least in vow, in grave matter is necessary for salvation by necessity of precept.

1° It is established from the principles set out above, n. 587. For commutative justice necessarily requires that violation of another's right cease; but it cannot cease except through restitution. Therefore.

2° It is established also from Sacred Scripture. Thus: But if you say to the wicked man: You shall surely die; and he does penance for his sin and does judgment and justice, and that wicked man restores the pledge and gives back the robbery, ... he shall live and shall not die.¹ - And: Behold the wages of the laborers who have reaped your fields, which has been kept back by you, cries out; and their cry has entered into the ears of the Lord of Sabaoth.²

3° It is established from the unanimous consent of the Holy Fathers. Thus S. Aug.³: "The sin will not be forgiven unless the thing taken is restored, when it can be restored." - These words of the Holy Doctor are inserted into the Canon Law;⁴ and from this comes rule 4 of law in the Sixth: Sin is not dismissed unless the thing taken is restored.

I said: in reality or in vow; for restitution is not necessary for salvation in reality by necessity of means. Therefore if it is impossible in reality, it does not stand in the way of salvation; but no one can be excused from restitution in vow. And whoever has injured another's right must always have a firm purpose of restoring when he can; otherwise he would retain affection for an evil thing, and thus would be situated in habitual sin. - Thus all. - Hence S. Augustine in the text just cited says: "when it can be restored."

n. ¶714.

- II. The precept of restitution is radically negative, in execution affirmative. The first reason is that the precept of restitution is immediately founded in the obligation of not violating another's right, or in the obligation neither of taking nor of retaining another's thing. But this obligation is radically negative, as is clear, and therefore it presses always and for always, that is, it presses at every moment until restitution has been made. The second reason is that the obligation of not taking or retaining another's thing, in which the precept of restitution is radically founded, cannot be fulfilled without therefrom being made a positive action by which that which is his own is returned to the owner.

III. There is no obligation of restitution except on account of violation of strict right, or of commutative justice; otherwise, however, on account of violation of the right of uprightness simply. The reason is that restitution effects that the thing owed to the neighbor equal the right of him unjustly violated. But now this cannot be done when the discussion is of violation of the right of uprightness. For if someone injures the right of his Superior or neighbor, by denying obedience to the former and the offices of charity to the latter, that violation cannot be strictly repaired, because a new act of obedience or charity would not repair the violated right, but would only satisfy the precept which always presses: namely, of obeying a Superior and of relieving one's neighbor in straits.

n. ¶715.

Questions. - Query 1° Is one unable to restore from goods of the same order bound to restore from goods of a diverse order?

Resp. More probably negatively. The reason is that no comparison is given between goods of a diverse order; therefore neither can compensation be given. And indeed it could never be determined how much arithmetically would have to be restored, since between goods of a diverse order there is no common measure. - S. Alph.,¹ Lacroix, etc., ... and others more commonly.

Nevertheless some others affirm it, because, they say, one who cannot repair the whole damage is bound at least to compensate the part which he can. - S. Th.²

Yet by vindicative justice it can be imposed by a judge or by a Superior that for injury concerning one genus of goods, for example concerning the good of reputation, someone furnish something in goods of another order, for example money. More probably, however, this is only by reason of penalty, not by reason of justice, unless this also has been voluntarily injured at the same time, as if damages in goods of fortune were foreseen from defamation. The injured party, moreover, has a right of denouncing before the judge the one from whom he has received injury, and so of accepting money from that man in order to omit denunciation. Thus, for example, a woman violently oppressed by someone can summon the violator before the judge, or exact money from the worthless man in order to renounce her right.

n. ¶716.

- Query 2° Is an obligation of restitution induced from an action injurious only affectively, but not effectively, to another's right?

Resp. Absolutely negatively, because no real injury is inflicted upon the neighbor, although the agent sins by an internal act against justice. Hence the malevolent judge pronouncing a sentence which he thinks unjust, if in reality it is just, must be exempted from the burden of restitution; or one who seizes a thing which he thinks another's, while it is his own.³ Recall what was said above n. 692.

Query 3° Are sins multiplied by delay of restitution?

Resp. More probably negatively, if the evil will of not restoring perseveres habitually, or is not morally interrupted.⁴ Recall what was said n. 224. B.

n. ¶717.

- Query 4° Do little thefts committed from diverse persons oblige to restitution UNDER GRAVE SIN if they have arrived at grave matter, and must restitution be made to the owners themselves also UNDER GRAVE SIN?

Resp. to the 1st. Affirmatively, because the precept of not stealing not only forbids damage to be inflicted upon another, but also forbids that someone unjustly become richer from another's thing. - Thus commonly. See n. 721. 4°.

Resp. to the 2nd. More probably negatively. The reason is that by hypothesis no owner has suffered grave injury. - Therefore, even if the owners are known, restitution can be made, without grave injury to anyone, to the poor or to pious places; indeed, if a reasonable cause comes in, for example the urgent necessity of the poor, etc., even venial sin will also be absent.¹ But if the owners are unknown, restitution must be made under grave sin to the poor or to pious places.²

Query 5° Is he bound UNDER GRAVE SIN to restore who in small thefts did not sin gravely, but from inadvertence arrived at grave matter?

Resp. Affirmatively; because although he did not sin gravely by stealing, he is nevertheless an unjust possessor of grave matter, and therefore will sin gravely by retaining the stolen thing. This is valid even if the thefts were committed from diverse persons; otherwise that man could become rich unjustly from another's thing without grave sin, which from what has been said is not licit.

n. ¶718.

- Query 6° Is a thief who stole a grave sum of money bound to restore it entire under grave sin?

Resp. Negatively. For he is bound under grave sin to restore only that which completes grave matter, because when this has been restored, the matter retained is no longer grave. Hence someone can be bound under grave sin to restore light matter; but then the obligation arises not from the light thing, but from the grave quantity.³

n. ¶719.

Resolutions. - 1° He who is situated in inability to restore another's thing or its value must always have a firm purpose of restoring when he can, and meanwhile procure, if he can, something by which he may satisfy his obligation as soon as possible.

2° If someone cannot restore the whole, and it is a question of a divisible thing, he is bound to the part which he can. For the injured person has a right to the individual parts, just as to the whole.

3° He who has inflicted light damage upon the neighbor is bound to restitution toward the injured owner under light sin and with inconvenience proportionate to the thing; for a light injustice must be repaired under light sin, just as a grave one under grave sin. Yet more easily then there can be a reason excusing from restitution, especially from that to be made to the owner himself. But if it is a question of a very slight thing, any difficulty whatever will suffice so that restitution can be made to the poor.⁴

4° He is deservedly held unworthy of absolution who refuses to promise restitution; who leaves to his heirs the care of restoring, while he can do it by himself; who, burdened with debt, incurs expenses of this kind in food, clothing, servants, ... on account of which he foresees that afterward he will be unable to pay his debts. - The same must be said of him who, enjoying good fortune, does not wish gradually to diminish his state in order to satisfy creditors. - Indeed, regularly that man is not to be absolved, to whom restitution before absolution is morally possible, before he has restored; for experience teaches that after absolution restitution is very rarely made.

5° The confessor must act cautiously with the dying who are bound to restitution. But he will be able to proceed thus: 1° If the penitent seems to be in good faith, and there is not time left for prudently warning him concerning his obligation, or it is foreseen that the warning will not be useful, the warning being omitted, he is to be absolved. 2° But if fruit from warning is hoped for, or if the penitent is not in good faith, he will have to be admonished firmly and gently at the same time concerning the obligation of restitution, and helped to carry it out immediately. 3° If the obligation is hidden and cannot be fulfilled immediately, the sick man will have to be induced to commit a sum of money to the confessor, or rather, if it can be done, to a faithful man, so that afterward it may be secretly entrusted to the creditor; or to leave that sum in a will to him, or, where prudence does not dissuade it, or law does not render it void (as it renders it void in Louisiana²), to the confessor, mention of restitution being omitted. 4° If the obligation is not hidden, nor can it be fulfilled immediately, let the confessor cause it to be certainly done by the heirs, whether by a schedule to be handed to the creditor, etc.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, CHAPTER IV: ON THE CAUSES EXCUSING FROM RESTITUTION

n. ¶798.

- I. They excuse for a time: 1° physical impotence, namely when the debtor has nothing whence he may restore; 2° moral impotence, or grave difficulty of restoring, whether on account of present necessity or on account of damage that would follow from restitution. And this indeed excuses as often as the one restoring would have to undergo damage much graver than the advantage which the creditor would perceive from restitution; for the order of charity demands that the creditor then consent to a delay of restitution. Therefore this impotence would be present to him who could not restore a) without danger either of his own soul or of his own, for example of prostitution, or of life or reputation, provided the loss of reputation outweighs the damage of the creditor; b) without damage exceeding double the value of the thing to be restored, provided nevertheless that the creditor is not going to undergo equal damage from the delay of restitution (but profit ceasing to the debtor from restitution does not excuse, unless the damage to the creditor from delay would be light); c) without notably falling from his justly acquired state, as if an honorable citizen could not restore unless he had to live in the manner of workers.⁴

Several except if the debtor culpably, for example by games and revels, has thrown himself into such necessity. - Thus Laymann, Lacroix, Busemb. with others. But S. Alph.¹ says: "Notwithstanding this, whenever a debtor would fall from his justly acquired state, to me and to other learned men it seems hard to oblige him to integral restitution. Moreover, S. Anton., Sporer, Elbel rightly note that in such a case the debtor is always bound to diminish expenses, so that he may be able to restore at least what he can."

The debtor can also regularly, even if the state was unjustly acquired, restore gradually when otherwise he would lose a good of a higher order, for example reputation, provided nevertheless that the loss of reputation is not very slight with respect to the damage of the creditor.²

n. ¶799.

- II. They excuse in perpetuity: 1° remission, or condonation, of the debt on the part of the creditor; but it is required that the creditor be able to condone, and have dominion and administration of the thing owed to him; likewise that the remission not be made by force or fraud, but altogether freely and spontaneously. 2° Compensation, either improper or proper or legal. The former is either hidden or manifest (n. 708 sq.). Therefore you are freed from restitution if, for example, you procure for your creditor an equivalent advantage, suppose through gratuitous service furnished by a physician, etc. - Legal compensation is that by which a creditor, in order to recover a debt from someone, retains for himself a thing of the same price owed by himself to the same person; which will be licit if it is a question of a sum of money or a fungible thing (for example wheat) of the same kind, demandable on each side at the same time. Example: on the 1st of the month I owe you 100 for wine sold to me by you, and you on the same day owe me one hundred for buildings leased by me to you. 3° Prescription (n. 668). 4° Destruction of the thing, but only in the cases in which the thing perishes for the owner (n. 722. 734. 955. 3° etc.).³

n. ¶800.

Questions. - Query 1° Is a debtor bound to restore if he is situated in the same necessity, whether grave or extreme, with the creditor?

Resp. 1° If the creditor is already found in grave necessity, and the debtor by restoring would fall into that necessity, he must restore according to all.

2° If each is already found in grave necessity, it is disputed. More probably he is excused from restitution which is not owed from delict (n. 797. 4°); indeed probably also if from delict, because the debtor then by restoring would subject himself to much graver damage, since from grave necessity he would have to slip into quasi-extreme. Except if the thing itself still exists in species, or if the creditor precisely through that taking away was thrown into grave necessity. - Thus commonly.

3° If each is in extreme necessity, more probably restitution can be omitted; because then all things become common. - Except, as immediately above 2°, if precisely on account of that withdrawal (for example of a plank in shipwreck), the owner (in the case posited, he who first occupied the plank) was thrown into extreme necessity, because to take from someone a thing necessary to himself for life is the same as to kill him.

n. ¶801.

- Query 2° Is he bound to restore who accepted and consumed another's thing in extreme necessity?

Resp. 1° If he has his own things elsewhere, affirmatively; the reason is that even in the time of necessity he is not truly impotent.¹

2° The same must be said if, in act indeed, he has nothing, but he has in probable hope; because one suffering necessity of this kind is sufficiently provided for through borrowed money without interest.²

3° If no hope shines in act, he is not bound; because then he made the thing his own. - Thus the more common theologians. - Except if he did not need absolutely that particular thing, or if only the use of his thing was necessary to him, for example of a horse for fleeing a murderer.

Query 3° Is he excused from restitution of a debt who, unmindful of the debt, gave something gratuitously to his creditor?

Resp. A twofold opinion is given:

The 1st Opinion denies it. The reason is that what is given gratuitously cannot be held as payment of a debt. - Thus Sanchez, Vogler.

The 2nd Opinion affirms, with Lacroix,⁴ Tamb., etc. The reason is that each one is judged to wish first to satisfy the obligation of justice rather than mere liberality. The first opinion is more common and very probable; but the second is not without its probability, says S. Alph.,⁵ and he says it is sufficiently probable whenever, as must be presumed, the debtor, if he had been mindful of the debt, would by no means have given.⁶

Query 4° Can one burdened with debts enter religion, and is he freed from debts if he has entered?

Resp. to the 1st. Negatively, if in a short time, that is, within two years, he can have whence he may pay;¹ otherwise, more probably of itself, if he must wait for a notable time, or even if from a brief stay in the world there threatens a probable danger of falling into sins or of losing vocation. But on account of uncertain debts no one is bound to defer entrance, not even for a short time, since nothing is so pious as to dedicate oneself and all one's things to God.² ... Yet if the debts are of great moment, such an entrance, although valid, is prohibited as illicit by Canon Law. This disposition of Law, however, does not comprehend nuns, who in odious matters do not come under the name of religious, nor those burdened with uncertain debts, nor those who without grave fault have been made impotent for restitution, nor debtors by reason of donation.³ Moreover, Superiors would imprudently receive debtors against whom creditors can have a civil action.

Resp. to the 2nd. 1° Religion is not bound to pay these debts from its own goods, as is clear; nor to give the religious permission to work so that he may satisfy them, except, while nothing stands in the way, from charity.⁴ But the goods which the debtor, having entered Religion, handed over to it are subject to restitution, because Religion succeeded into them with the burden attached to the same. Thus Varceno. 2° The religious is bound to pay them from goods which he had before profession, or which come to him by legacy, if he emitted only simple vows; otherwise, however, if he was solemnly professed. - Thus commonly.

n. ¶802.

- Query 5° Is he freed from restitution who pays the debt to the creditor of his creditor; for example, I owe $100 to you, but you owe 100 to Titius; do I satisfy by paying 100 to Titius?

Resp. Affirmatively, of itself and with attention to commutative justice alone; for I, by paying to your creditor that which you owe to him, acquire the right which he had of demanding his debt from you. Hence the right which I have in you is equivalent to the right which you have in me, and compensation is made. For your creditor can transfer his right to me, or I can buy it, just as anyone else who owes you nothing. - S. Alph.,¹ Billuart,² and others commonly.

I said: 1° of itself, because I am not freed if perhaps you are still compelled to pay, or if you have privileged or hypothecary creditors.

I said: 2° with attention, etc.; because such payment, if it is made without cause, will be illicit on account of the order of right which it is necessary to observe. But there is a sufficient cause if the creditor can in no other way recover his debt.

n. ¶803.

- Query 6° Is a debtor freed in doubt or probability of payment?

Resp. Negatively, in negative doubt, as is clear. But affirmatively, if payment is either uniquely probable or far more probable. Again negatively, according to S. Alph.,³ in strict positive doubt, since the debt is in possession, which therefore will have to be paid integrally or in part, according to the doubt. But if the creditor himself also doubts, payment must be made according to the proportion of the doubt, because then neither certainly possesses (n. 60. II. under 3°). "Yet Layman adds that he would not dare to condemn the creditor if he exacted the whole."⁴

n. ¶804.

- Query 7° Does reasonably presumed condonation excuse from restitution?

Resp. Affirmatively, at least more probably, because retention of another's thing is not unjust unless it is done while the owner is unwilling. But it is not done while the owner or creditor is unwilling, if it is done from his reasonably presumed will. Thus children are often excused who have stolen from parents a sum not great for the condition of the parents; servants who have consumed common edible things or otherwise taken things of this kind of small price; wives sometimes from furnishing damage inflicted upon common dominion. But abuse in this matter must be guarded against as much as possible, lest thus a door be opened to innumerable injustices, and condonation, as odious, must be interpreted strictly. Hence in doubt it must be presumed that the owner does not consent to be despoiled of his thing.⁵

SECTION II.

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, Third Part: Concerning Com…, Section A: Concerning the Proper Act of Commutative Justice or Concerning Restitution · Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, Third Part: Concerning Com…, Section A: Concerning the …, Question One: Concerning the Necessity of Restitution

ON RESTITUTION IN SPECIES.

Here it must be treated concerning restitution on account of damage inflicted upon the neighbor in the goods 1° of the soul, 2° of the body, 3° of fortune in certain cases.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 66 passages

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, Third Part: Concerning Com…, Section A: Concerning the Proper Act of Commutative Justice or Concerning Restitution

S. Th. II-II, q. 62, a. 1.

278. What restitution is. — To restore, according to etymology, is as it were to set up again, and therefore it is the replacement of a person or thing into its former state. At present the question is only of the restitution of a thing. In a broader and improper sense, to restore is to render whatever is owed to another from commutative justice, to pay whatever debt must be paid from commutative justice, for example, from a contract, because the thing owed to another is already considered to be his; in the proper and strict sense, it is to set someone again in the possession or dominion of his own thing, and thus it especially has place in exterior things which, remaining the same, can pass from one person to another. But since certain things taken away now cannot be rendered and possessed again by someone, such as life, an eye torn out, a member cut off, restitution, in a derived sense, also includes recompensation for damage of this kind inflicted: namely, the name has been extended to actions and passions "which pertain to the reverence or injury of some person, or to harm or advancement" (a. 1, ad 2), and which do not remain really but only in an effect, either bodily, as an injury of the body, or intentional in the knowledge of men, as defamation and diminution of honor.

Restitution, understood in the proper sense, can be defined: an act of commutative justice by which, according to equality of thing to thing, there is rendered to another what has been received from him, whether willingly or unwillingly. It is said:

an act of commutative justice, because from the violation of another virtue as such (charity, religion, obedience, even legal and distributive justice) there does not arise an obligation of restoring, except per accidens, if commutative justice is at the same time violated, whose office is to preserve equality with the strict right of another;

by which there is rendered to another: restitution must be made to another by him who holds or has injured, and thus it differs from recovery or recompensation which someone makes for himself, although this is equivalent to restitution and takes away its obligation;

according to equality of thing to thing, for if as much is not rendered as was taken away, the damage is not repaired and equality is not restored;

that which was received from him whether willingly or unwillingly, that is, the thing to which another has a right that it be rendered either in itself, or at least in an equivalent; and thus restitution is distinguished from satisfaction, which regards not the thing but the person, and from the payment of a debt, by which a diverse thing is granted. But it happens, according to St. Thomas, in two ways: "when the thing of one is had by another either through his will, as in a loan (or commodatum) or deposit; or against his will, as in robbery or theft" (a. 1). Hence the obligation of restitution arises by a twofold title:

a) from another's thing received, or from the mere possession of it, even not unjust;

b) from an unjust taking by which a thing is withdrawn from another, even if it is useless to the one receiving; or from unjust damaging. But the damage must be unjust, because if damage is inflicted justly, for example, by public authority, or by necessary defense, or by the use of one's own right, there is no obligation of restitution.

Hence restitution can also be defined: an act by which another's thing is rendered or damage unjustly inflicted is repaired.

Therefore injustice is not the root of restitution, but inequality on the part of the thing. For the obligation of restoring can be present without injustice committed; on the contrary, when injustice has been given, it does not arise if that injustice is not damaging.

279. Restitution is the proper act of commutative justice. — For:

"Restitution is opposed to taking away. But the taking away of another's thing is an act of injustice concerning commutations. Therefore restitution of the same is an act of justice, which is directive in commutations" (St. Thomas, a. 1);

"To restore seems to be nothing other than to set someone again in the possession or dominion of his own thing; and thus in restitution the equality of justice is attended to according to recompensation of thing to thing, which pertains to commutative justice" (ibid.);

"To commutative justice," says Billuart,¹ "it pertains to establish equality of thing to thing, between what is given and what is received, between damage and compensation. But this is done through restitution. Therefore it is an act of commutative justice."

¹ Diss. VIII, art. 1.

And indeed this justice has as its proper object the good of equality of thing to thing, so that each person has those things which are his by strict right, and no one remains without his own thing and its fruits. But this good intended from justice obligates in the same way after the receiving of the thing as before. Therefore, just as commutative justice prohibits another's thing from being snatched away lest he lack his own thing, so in the same way it prohibits that a thing already snatched away be retained, or that a thing destroyed not be repaired, on account of the same motive, lest the other lack his own thing and its fruits; otherwise the good of equality would not be had, but an inequality by which someone would lack his own thing.

In the other virtues it is not so: namely, after the violation of the virtue has been completed, the motive which that virtue regarded no longer per se remains; for example, if charity is injured insofar as help is not given to a poor man in necessity, after the injury has been completed that necessity of the poor man no longer remains, and consequently neither does the obligation of charity. Per accidens the obligation can remain insofar as the necessity endures; nevertheless charity then does not obligate by reason of damage inflicted, but by reason of a new present necessity; but if the necessity has ceased, there is no longer any obligation, because the motive which charity regards in the case has ceased: the relief of the poor man. Similarly one must speak of obedience and legal justice, and of distributive justice: if a superior commands that you obey a master, or if he himself ought now justly to distribute such goods of the community, there is sin if it is not done, yet there is not an obligation of placing afterward a similar work (unless per accidens the precept perseveres), because now the precept given cannot be fulfilled or the completed distribution of such goods be made just (n. 254), and therefore the same motive of virtue does not remain.

Therefore, when all other virtues have been violated, the obligation of restoring equality does not press, because no complete and permanent strict right of another was injured concerning the thing itself; and therefore only of commutative justice does the axiom of St. Augustine hold: The sin is not remitted unless what was taken away is restored.

280. Restitution differs: A. from payment:

because this is not always an act of justice strictly so called; for example, we also pay the things which we owe from a vow or from charity; but restitution supposes a true right, and indeed a strict one;

because the thing which is paid must a) be diverse from the thing for which it is paid; b) not yet have been possessed by him to whom it is paid; on the contrary restitution demands a) that the same thing, as far as can be done, be restored; b) that, as much as is from itself, it already was in the possession of him to whom it is restored. Hence one who returns a deposit truly restores, he does not pay; one who gives money for a thing bought, pays, he does not restore;

payment does not consider so much the value of the thing as the agreement entered upon; restitution attends to the value of the thing to which it ought to be equivalent. Hence it happens that one person pays more than another for a thing of equal value, which cannot happen for just restitution.

B. from satisfaction:

because this is sometimes taken in a more general sense for the fulfillment of every obligation even without a debt of justice, or not from strict justice;

because satisfaction strictly taken regards the person to whom satisfaction is made, although it does not furnish an equivalent to the debt; but restitution regards the thing which must be rendered, the same thing or, if this is impossible, at least an equivalent;

because satisfaction is the repair of injured honor even without damage or with irreparable damage; but restitution is the repair of repairable damage inflicted. Hence there can be satisfaction without restitution, for example, when we make satisfaction to God for sins or ask pardon from offended parents; likewise there can be restitution without satisfaction, as in the restitution of a deposit or loan; both can also be together, as when we render a thing injuriously taken away and at the same time humbly ask pardon.

281. Matter to be treated. — In what follows we shall speak:

of the necessity of restitution;

of the roots of restitution, namely, a) of unjust taking, b) of detention of a thing received, c) of unjust taking together with detention of the thing, d) of unjust cooperation;

of the circumstances of restitution: a) concerning him to whom restitution is to be made, b) concerning the order of those to whom restitution is to be made, c) concerning the manner in which restitution is to be made, d) concerning the place where restitution is to be made, e) concerning the time when restitution is to be made;

of causes excusing from restitution, whether a) for a time, or b) forever.

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, Third Part: Concerning Com…, Section A: Concerning the …, Question One: Concerning the Necessity of Restitution

S. Th. II-II, q. 62, a. 2 and 8.

282. Thesis. Restitution is necessary for salvation by necessity of precept, which per se obligates under grave sin to restoring, in fact or in desire, that which is owed to one's neighbor from strict right.

It is said A. necessary, and indeed:

in fact or in desire: in fact whenever this is morally possible; but if for the time it is impossible, at least the intention must be conceived in the mind, that is, the desire or efficacious proposal of restoring as soon as possible;

per se under grave sin: for just as injury per se is prohibited under grave sin, so its repair per se is commanded under grave sin; unless the damaging injury is light, for then the repair can be owed only under venial sin. Hence one who, in restoring, would retain a part which does not reach grave matter, would not sin gravely by detaining it; nevertheless, even for a light injury or small matter, restitution must be prescribed under venial sin;

by necessity of precept, but not, even in desire, by necessity of means, because restitution contributes nothing positive to salvation, but is a mere condition like the fulfillment of every grave precept;

B. for salvation, namely, so that sincere contrition and a firm purpose are impossible without the efficacious will of restoring.

It is proved A. by reason. The first part: Justice forbids that injury be inflicted upon someone or that an inflicted injury be continued. But he who does not restore a thing received from another, or for damage inflicted, when he can, by that very fact causes injury or does not cease to cause it. Therefore justice forbids omitting restitution. For:

a) He who unjustly detains another's thing impedes his neighbor from the use of his own thing, and thus does injury to him: namely, to detain that which is owed to another has the same account of harm as an unjust taking, and is equivalently to steal; — likewise he who does not compensate damage voluntarily continues it in its effect, and does not cease to violate another's right.

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative Justice, namely Restitution · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, From how many titles the obligation of restitution arises, affirmative or negative? · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, Whether vehement theological fault induces an obligation of restitution, and what kind? · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, Whether, and how far, juridical fault induces an obligation of restitution by reason of contract and quasi-contract, or of office? · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, Whether those who hinder someone from obtaining some good are bound to restitution?

b) He who does not restore harms his neighbor, and thus acts against the precept: What you wish men not to do to you, do not do to them.

…and 26 more passages — all of them are listed on the topic page.

Billuart, Summa Summae

Charles-René Billuart, O.P. — 252 passages (filed under the subtopics)

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative Justice, namely Restitution

(D. Thomas, q. 62.)

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, From how many titles the obligation of restitution arises, affirmative or negative?

: Two titles are commonly assigned as inducing the obligation of restitution, namely a thing received and an unjust acquisition³⁴⁸ . ³⁴⁸ Ibid., a. 6, c.

1° By reason of the thing received he is bound to restore³⁴⁹ , who has the thing of another in his hands without his fault, as a thing deposited, lent for use, pledged, found, etc.; because, since he has what is not his own but another's, what he has beyond what is his own ought to be withdrawn from him and given to him who lacks it, according to the form of commutative justice, so that equality may come about. ³⁴⁹ Ibid.

Moreover, although in that case there has been no unjust acquisition, nor is there an unjust detention, it would nevertheless be unjust if the thing were not returned in its time.

Under the name of the thing, however, is understood not only the thing existing in itself, but its value; likewise existing fruits, and all that by means of which whoever holds the thing has been made richer by it.

2° By reason of an unjust acquisition he is bound to restore³⁵⁰ , who has taken away the thing of another by theft, robbery, or some other unjust way, even if it does not remain with him. Likewise he who has unjustly damaged another without the reception of any thing; for under unjust acquisition is here understood unjust damaging. ³⁵⁰ Ibid., et a. 4, c.

The reason is that, although this man does not have more than he ought to have, the other nevertheless has less than he ought to have through his unjust action. Hence he violated justice toward him, which he is bound to repair by restitution.

But if the thing unjustly taken remains with him in itself or in its value, or if he has become richer thereby, then he is bound to restore under a twofold title, namely of the thing received and of the unjust acquisition. Furthermore, these two titles are not rarely joined together, although either one alone suffices.

Note 1°. Between these two titles there intervenes a great difference, to be diligently noted for practice : namely that he who is bound to restore by reason of an unjust acquisition remains under the obligation of restoring even if the thing owed perish without his fault; because the reason or title of the obligation always remains, namely the violation of justice, until it be repaired by restitution. Nor is he bound to restore only the thing or its value, but also all the fruits, even those consumed; likewise all damages ensuing thence and profits ceasing, in favor of him whom he unjustly damaged, because he is culpably the cause of them. But he who is bound to restore only by reason of the thing received is not bound to restore if the thing perish without his fault, as, v. g., in a deposit; because then the reason or title of the obligation ceases, which is to have the thing of another. Nor is he bound either to restore the fruits, if they are consumed and he has not been made richer thereby, nor the damages ensuing or profits ceasing; because he is not their cause. — Of these things more fully again in what follows, while we treat of the possessor in good faith and in bad faith.

Note 2°. A third title inducing the obligation of restitution could be assigned, namely contract; for by the force of contract alone one can be obliged to the restitution of a thing which he no longer has, nor received unjustly. But because from a contract there seems to arise rather an obligation of payment than of restitution, and the two former titles alone are commonly assigned as known to all, that we may speak as all speak, and lest confusion be engendered, we too assign only these two titles. Nevertheless we shall speak below of the obligation of paying or restoring from contract.

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, Whether vehement theological fault induces an obligation of restitution, and what kind?

The difficulty concerns venial fault arising from the imperfection of the act together with grave damage inflicted, about which there is a diversity of opinions. For the resolution of which,

I say 1° : It is more probable that he who gravely damaged his neighbor through venial fault is held to some restitution. This is against Lessius and certain others. The reason is that, as the imperfection of the act, although it diminishes, does not nevertheless take away every character of injustice; so, although it diminishes, it does not nevertheless take away every obligation of restoring, which arises from justice as from its root.

I say 2° : It seems less probable that he who inflicted grave damage through venial fault is held under mortal sin to the reparation of the whole damage. This is the opinion of Sylvester, Soto, Silvius, Steyaert and the more common one, against Henry of St. Ignatius and certain other recent authors.

Proof. The obligation of restoring is here attended to principally, not on the side of the object or of the damage, but on the side of formal injustice. For we are treating of restitution by reason of unjust acquisition; and if there were no formal injustice, however grave the damage might be, there would be no obligation of restoring, as I said in the preceding article. Yet in our case the injustice is imperfect. Therefore the obligation of restoring ought to be imperfect; for the effect ought to answer to the cause. But it would not be imperfect if it were unto the restoration of the whole under mortal sin.

I say 3° : It is probable that he who inflicted grave damage through venial fault is held under venial sin to the reparation of the whole damage. Nevertheless it is equally probable that he is not held under venial sin except to a part of the damage only, according to the condition of the fault, according to the judgment of a good man.

The reason of the first part is that the whole damage is voluntary, although imperfectly. Therefore it seems that the obligation of repairing the whole is imperfect, namely under venial sin.

The reason of the second part is, on the contrary, that an obligation of repairing the whole under venial sin does not seem imperfect, nor proportionate to the light fault from which it arises. It is indeed imperfect on the side of itself, because it is not so strict; but it is not imperfect on the side of the object, because it is unto the whole, nor therefore proportionate to the fault : just as a grave punishment is not proportionate to a light fault, although the accused would be bound to it only lightly.

And indeed it seems hard that one be held under venial sin to pay back twenty or forty thousand pounds and more, and that he cannot be freed from that sin unless he pay back this whole sum. Wherefore it seems more suitable to many to say that he is held only to a part, for example a fiftieth, an eightieth, etc., according to the quantity of the fault, according to the judgment of prudent men.

Moreover, whatever may be said of the speculation of this question, authors of every opinion commonly note that it rarely happens in practice that grave damage is caused by venial fault; because, although venial inconsiderateness is frequent in surreptitious thoughts and internal movements of the mind, which often, easily and subtly arise, and indeed concerning objects conformable to natural inclination; yet it rarely occurs in external works of grave moment, because these ordinarily present their danger at once and more strongly arouse the mind to consideration of themselves, or at least to a confused knowledge of the danger. Hence, unless it be certainly established that the inadvertence was venial, it must be held in practice to be mortal, namely proportioned to the damage, and the obligation of restoring under mortal sin must be pressed upon him.

n. 10.

[There St. Liguori distinguishes³⁵² : If the fault is venial by reason of the smallness of the matter, it certainly obliges to restitution under light sin. But if the fault is venial by reason of inadvertence or undeliberation, several say, with Layman and Croix (and to this opinion our Billuart adheres), that the obligation of restoring is according to the measure of the fault. But more commonly, and probably, it is held that no obligation of restitution is induced, neither under grave nor under light sin. Not under grave, because such an obligation has no proportion with a light fault. Not under light, because a light obligation has no proportion with grave matter, all the more since a fault imperfectly deliberated cannot induce perfect deliberation : just as in contracts and vows no obligation arises from a consent not fully deliberate. ³⁵² Lib. IV, n. 552 ; Homo apost., X, 40.

n. 11.

You will ask 1° whether he is held to restitution who culpably placed the cause of the damage, and afterward tried in vain to impede the damage.

n. 12.

I answer, affirmative. The reason is that retraction, although before God it takes away the sin, does not nevertheless prevent the culpably placed action from being in itself a positive, efficacious and unjust cause of the damage sprung from it³⁵³. ³⁵³ Id., lib. IV, n. 559 ; lib. VII, n. 40.

n. 13.

You will ask 2° whether a damager who is doubtful is held to some restitution.

n. 14.

I answer 1°. If the doubt arose before the damaging action, the question is to be solved from the principles laid down in the treatise on Conscience, where we treat of a doubting law.

n. 15.

I answer 2°. If the doubt arose after the action, several things are to be examined : 1° Whether the damage exists. In which doubt, even if positive, according to the common opinion the agent is not held to restitution³⁵⁴. And this the Angelic Doctor holds, here q. 62, a. 7, o, where he says : « In other cases, however, that are enumerated, one is not always bound to restitution ; for counsel, or flattery, or anything of this kind is not always an efficacious cause of rapine. Whence then only is the counselor, or the palpo, that is, the flatterer, held to restitution, when it can be probably estimated that from causes of this kind an unjust acquisition followed ». Therefore, according to St. Thomas, it must be proved that the action certainly was the cause of the damage; for the adverb probably is used here in the sense that the thing can be proved, that is, that the persuasion is morally certain. — 2° Whether the damage is to be ascribed precisely to this action. In this doubt a threefold opinion is given. The first, which is probable, teaches that restitution is to be made if the action was apt by its nature for inflicting such damage; because then the presumption stands for its influence. The second opinion holds that restitution is to be made pro rata of the doubt. But, besides that the quantity of the thing to be restored could hardly be determined in this case, this opinion on one side harms the agent, if restitution is not to be made, and on the other the damaged party, if it is to be made. The third opinion, absolutely more probable, affirms that the damager who is in doubt is held to nothing; because an injurious action does not suffice for pressing restitution, but there is required a persuasion morally certain that that action truly was the cause of the damage. Whence this question falls back into the preceding one, namely whether the damage exists on the side of the agent, and likewise it is to be solved³⁵⁵. — 3° Whether the action, or omission, of the damager, although damaging, was formally unjust, that is, an invader of another's strict right; because the obligation of restitution is born from the violation of commutative justice alone. In a doubt of this kind the agent cannot be held to restitution before the sentence of the judge. — 4° Whether the action, or omission, of the damager, although truly damaging and in itself unjust, was gravely culpable in conscience. And the same answer must be given; because, as was said above, where grave fault is not morally certain, neither is the obligation of restoring certain on account of the damaging³⁵⁶] ³⁵⁴ Id., lib. IV, n. 562, 1ª Sent. in fine. ³⁵⁵ Id., ibid., n. 658. ³⁵⁶ Id., Homo apost., X, 39,.

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, Whether, and how far, juridical fault induces an obligation of restitution by reason of contract and quasi-contract, or of office?

1° : In commodato, the receiver is held for damage arising from light and lightest fault, but not from a fortuitous event. In precario, he is held from gross fault only. But in contracts which are for the utility of giver and receiver together, as in hiring, he is held from light fault.

So it is, not indeed from the nature of the thing, because, standing in the law of nature, no one from strict justice is bound to employ greater diligence in preserving the things of another than the owner himself would employ, but from the disposition of law both canonical and civil in many places.

And these laws seem to bind in the forum of conscience before the sentence of the judge ; because that obligation of restoring in these contracts seems not so much a punishment as a condition attached to them by the statutes of the laws. Nor should they be said to be founded upon a false presumption of fraud, but rather upon natural equity and honesty.

You will ask whether he who sends back by a messenger a thing hired, or lent for use, or deposited, is held to restitution or payment if the thing perish through the fault of the messenger.

I answer with Silvius, with a distinction. If the messenger was commonly held to be trustworthy, he is not bound, because he is not at fault. If the messenger was not commonly held to be trustworthy, he is bound, because he is at fault.

Nor is it similar concerning him who would send back a thing loaned mutuum ; because the thing loaned mutuum belongs to the borrower so long as it has not reached the lender³⁵⁷ . Whence, although it perish without the fault of the borrower, it perishes to himself as owner. But a thing lent for use³⁵⁸ , hired, or deposited, belongs to the lender for use, the hirer, or the depositor, and not to the bailee for use, the lessee, or the depositary. Whence, if it perish without his fault, he is held to nothing, and the thing perishes to its owner. ³⁵⁷ Hoc intelligitur de rebus usu consumptibilibus. Cfr. Cod. civ. Gall., art. 1893. ³⁵⁸ Ibid., art. 1876.

I say 2° : Those who act from quasi-contract, or from office, such as tutors, judges, advocates, physicians, surgeons, etc., do not seem to be held for damage arising from any juridical fault whatever, unless it be at the same time theological : because either there are no laws which clearly decree this concerning those offices, as we said holds for true and open contracts; or, if there are, they do not seem received in practice with respect to the forum of conscience; for this the common sense of men persuades. For there is no one, or scarcely anyone, who thinks that a physician, surgeon, advocate, tutor, and their like, are held in conscience and before God to restitution, if they have not sinned in conscience and before God. And indeed, if matters stood otherwise, who, though most vigilant and most expert, would wish to discharge these offices, since it often happens that some light or lightest juridical fault creeps in upon the most vigilant and most expert through inadvertence or natural forgetfulness, or some other case, on account of which they would be held to restore, although they were before God without fault?

Moreover, I confess that those who render service under office for pay are bound by the strict law of nature to employ greater diligence than those who serve gratuitously out of charity, and if they voluntarily omit it, they sin before God and are held to restitution.

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, Whether those who hinder someone from obtaining some good are bound to restitution?

Whether he who impedes someone from the attainment of some good is held to restitution.

Note. The good that can be impeded either is owed to one's neighbor by commutative justice, inasmuch as he has a perfect right and in re to it, as to a benefice after its collation and confirmation, possession not yet acquired; or a right to the thing whereby he could reclaim it at law and make it his own, as to a benefice after election or presentation, or to a thing promised or bought but not yet delivered. Or it is not owed to him by commutative justice, but he has toward it only a certain moral right, whether from distributive justice, or from gratitude, or from the good will of him on whom it depends.

I suppose as certain that he who impedes someone from attaining a good owed to him by commutative justice, in whatever way he impede it, even by prayers or persuasions alone, without force or fraud, is held to restitution; because he violates commutative justice and the strict right of another.

I say 1° : He who without force, fraud or guile, but by prayers alone, persuasions, counsels, blandishments and similar means, impedes someone from attaining a good not owed to him by commutative justice, but either from distributive justice alone, or from another's gratuitous will, although already determined upon giving, is not liable to restitution : because he does not sin against commutative justice, nor violate the strict right of another; for that determined will of the giver does not confer strict right. Whence, just as the former could change his will without injury to the donee, so can another induce him to this change of will without injury to him.

I said, « a good owed by distributive justice alone, » such as benefices and public offices, which since they are principally ordered to the common good, and not to the private advantage of the particular persons to whom they are conferred, are not owed to these except by distributive justice. Otherwise of the public good, which is principally instituted for the utility of individuals, such as the public treasury, pious foundations, revenues from common goods ; for these are owed to individuals by commutative justice, inasmuch as each one has some strict right to his own part.

But greater is the difficulty, whether at least he who does it with the mind of harming is not liable to restitution. Whence

I say 2° : He who by the aforementioned lawful means, without force or guile, impedes someone from attaining a good not owed to him by justice, even if he do so with the mind of harming, from hatred, vengeance, etc., is not bound to restitution. This is common opinion with Soto, Navarro, Lessius, Laymann, Silvius, Serra ³⁸⁸ , etc., against certain ancients, among whom among recent authors Daelman adheres. ³⁸⁸ Ita etiam S. Lig., lib. IV, n. 584.

…and 212 more passages — all of them are listed on the topic page.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 21 passages (filed under the subtopics)

Vol. I, Tr. VIII, Pt. III, Sect. I, Chapter II. On the Roots of Restitution

n. 414.

The roots of restitution are called the causes from which the obligation of restoring arises. They are taken from a threefold head, namely: 1st, from the acceptance of another's thing; 2nd, from unjust damaging; 3rd, from unjust cooperation: which indeed, as to the matter, could easily be reduced to one or the other of the preceding, but for the greater distinction of the things to be said will more opportunely be treated separately.

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. II, Article II. On Unjust Damaging

n. 425, Q. 10.

Question 10. Whether he is held to restitution who prevented another from obtaining some good?

Resp. 1st. Affirmatively, if the one impeded has a strict right to that good. 2nd. If he does not have a strict right to obtaining the good, one must distinguish: Affirmatively, if by unjust means he is impeded from obtaining the good; for anyone has a strict right not to be impeded unjustly from the obtaining of a good of which he is not unworthy. In this case restitution must be made according to the certainty or probability by which he is judged otherwise to have been going to obtain such a good. Negatively, if he is impeded by means just in themselves, because then no right of another is violated. - Cf. St. Alphonsus, Hom. Ap., n. 61. - Lacroix, n. 69. - Laymann, l. III, tract. II, cap. VII.

Hence he exists as obligated to restitution toward a son who induces the father to exclude him from an inheritance to which by civil law he has a strict right. Likewise he is held to restitution who, by lies scattered against a poor man, prevents alms from being given to him. Those sellers also are held to restitution who unjustly detract from other sellers and from the merchandise for sale among them, in order that they may turn buyers away from them and entice them to themselves.

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. II, Art. III, § I. On the One Commanding

n. 426.

One commanding or mandating is called he who, on account of his own advantage or in favor of himself, moves another by command, prayers, or other means to inflicting damage on someone. It is said on account of his own advantage, because in this the one mandating differs from the one counseling; for where there is a mandate, the executor acts in the name and in favor of the one mandating, but where there is counsel, he acts in his own name and in favor of himself or of some other third party. Hence it is not necessary that the one mandating be the superior of the mandatary. - Cf. Carrière, vol. 3, n. 1168. - Ballerini, note (b), p. 573.

n. 427.

I say. The one mandating is held to repairing every damage which is inflicted by force of the mandate, because he himself is the principal cause, morally indeed but efficaciously, moving another to harm; and since otherwise he is supposed formally unjust, it follows that all the conditions of unjust damaging are verified in him.

n. 428.

You Will Resolve. - 1st. The one mandating is not held to restitution if he revoked the mandate before the damage was inflicted and the revocation became known to the mandatary before execution of the mandate; because then he does not flow into the damage.

2nd. But if the one mandating did not revoke the mandate, even if he retracted the depraved will, or indeed revoked it, but not in time, or finally if it is clear that the revocation made in time was not heard or understood by the mandatary on account of deafness or distraction, he will be held to restitution, because the damage follows by force of the prior mandate.

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. II, Art. III, § II. On the One Counseling

n. 429.

I say. Whoever has given unjust counsel to another is held to retract it, whether knowingly and willingly he offered it or in good faith; otherwise he will be held to repairing all damages which will follow by force of his counsel. The reason for the first is that, when unjust counsel has been given, its retraction is the only way of repairing injured justice. But the reason for the second is that damages which follow by force of the counsel must be imputed to the one counseling as to the true and efficacious cause.

n. 430.

You Will Resolve. - 1st. The one counseling is not held to restitution if the executor would equally well and in the same way have inflicted the damage without the counsel given, because then the damage is not the effect of the counsel. Cf. St. Alphonsus, n. 561.

2nd. Nor is he held to restitution if he fully revoked the counsel before execution, whether the counsel was bare or clothed, or supported by motives. Nevertheless in this last case it is necessary that in the retraction he apply other motives at least equally efficacious. Cf. St. Alphonsus, n. 559.

3rd. If two at the same time counsel theft to someone who, induced by their counsel, steals, each is held to restitution; for although, even with only one counseling, the theft would have been perpetrated, nevertheless in fact each by his own counsel exerted influence, and by that very fact each was the cause of the theft. - Cf. St. Alphonsus, n. 561. - Lugo, disp. 19, n. 2.

4th. Although the one counseling is held to restitution only secondarily, because the executor is held primarily, since he acts in his own name, nevertheless he is not exempted from the obligation of repairing the damage which he counseled, if the executor, whom he warned to restore, does not restore. The reason is that he efficaciously cooperated in the damage; but efficacious cooperation necessarily requires efficacious reparation.

n. 431.

Question. Whether, or in what manner, one giving harmful doctrinal counsel from gravely culpable ignorance is held to restitution?

Resp. If the one giving counsel does this from his state or office, for example, an advocate, physician, confessor, etc., he is held to restitution for the unjust damage which follows from his counsel, whether toward the one seeking counsel or toward him against whom it is given. The reason is that society has the right that he have knowledge suited to his office. But if the one counseling is not such a person, who by reason of his office or state professes skill, 1st, he is not held toward the one seeking counsel, unless he acts from deceitful counsel, or unless he affects great skill which he lacks; 2nd, nevertheless he is obligated toward a third person, who suffers damage from it, if he himself knew his own lack of skill and foresaw at least confusedly that damage would follow. - Cf. St. Alphonsus, n. 564.

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. II, Art. III, § III. On the One Consenting

n. 432.

I say. The one consenting is held to restitution as often as knowingly and freely he issues a vote or sentence, upon which the violation of another's strict right directly depends, that is, as often as he gives efficacious consent to the damage or injury of the neighbor. The reason is that then he himself is the true, efficacious, and unjust cause of another's damage.

n. 433.

You Will Resolve. - 1st. He is not held to restitution who by his vote impedes another from obtaining a good to which he had no right, yet with fraud or special pact excluded; because in this case, but not in the other, a strict right would be violated.

2nd. He is not held for damage who authentically revokes a vote previously given, before the wickedness is consummated; nor the one voting in good faith, although this latter, when the error has been detected, is held from justice to revoke his vote. The reason is that the former does not exert influence efficaciously and the latter does not exert influence unjustly.

3rd. He is held for damage who abstains from casting a vote which from office would have to be given, and whose omission would be the efficacious cause of unjust damage; but not he who abstains from giving a vote from mere benevolence and concerning a thing not owed to another.

n. 434.

Question. Whether the one consenting, who gives an unjust vote, is held to restitution if there are not lacking other votes already sufficient for the damage?

Resp. It is certain, 1st, that all those consenting are equally held to restitution if by agreement they gave votes; since, when a conspiracy has been entered upon, there is one moral action of all. - It is certain, 2nd, that all those consenting contract the obligation of restoring when they have cast the vote at the same time; because, since no one then was prior or posterior, the sentence resulting from the sum of the votes is deservedly attributed to each of those voting. It is certain, 3rd, that those are not to be excused from restitution who first give a vote before the number is completed, even if they foresee that others who consent will not be lacking, because they truly exert influence on the damage; for although without them it would have been inflicted, nevertheless through them it is partially inflicted in fact.

But whether, conspiracy and simultaneous casting of votes being excluded, the last voters can be excused from the obligation of restoring when the number of votes required for the determination of the matter has already been completed, is controverted. Several grave theologians affirm, because voters of this sort are in no way the cause of the damage, since it was already sufficiently prepared and determined by others. Others deny, because since a sentence is never judged perfect unless it is concluded through the casting of all votes, the last no less than the first exert influence on the unjust sentence. - Cf. St. Alphonsus, n. 566. - Lugo, disp. 19, n. 17. - Vogler, n. 302.

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. II, Art. III, § IV. On the Flatterer

n. 435.

A flatterer is called one who by praising, flattering, or blaming moves another to damaging. Concerning the flatterer these things are to be held:

1st. He who induced another to inflicting damage by proposing praise, or otherwise disgrace, that would follow, is held for the damages. For such cooperation has itself in the manner of counsel, since motives for acting commonly efficacious of themselves are proposed.

2nd. Those who so represent to a man affected by injury the magnitude of this injury that, moved by it, he takes vengeance, are held to restoring, provided they adverted at least probably that damage would follow.

3rd. But he is not held to restitution who approves or ratifies a crime already perpetrated, unless he is the cause why restitution is not made or new damages are inflicted. - Cf. St. Alphonsus, n. 567.

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. II, Art. III, § V. On Refuge

n. 436.

A receiver, or one providing refuge, is he who knowingly and freely provides security to a robber or another damager. Concerning him these things must be established:

1st. One receiving is held for damages coming from his manner of acting. For one providing security efficaciously and unjustly determines the will of the thief, or makes it firmer, in the purpose either of stealing or of not restoring or of stealing again.

2nd. Likewise merchants and especially innkeepers are held to restitution who accept stolen goods of sons of families, servants, etc., or hide them, or even claim them for themselves as the price of merchandise, drinking-bouts, etc.

3rd. Among those receiving are not to be reckoned those who receive at home friends or blood-relatives who are evildoers; nor those who hide them under hope of amendment, or show them the way by which they can flee, when they are sought for prison or for death. Cf. St. Alphonsus, n. 568.

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. II, Art. III, § VI. On the Participant

Tr. I, Disputation XXIV: On Resti…, Question I: What restitution is · Tr. I, Disputation XXIV: On Resti…, Question II: Whether restitution is necessary for salvation · Tr. I, Disputation XXIV: On Resti…, Q. III, Doubt III: Whether one who has promised three or four times to restore, and has not restored, is to be absolved before restitution

A participant is twofold: one in the booty, another in the damaging action.

n. 437.

I say. A participant in the booty is held to restoring only that part which he accepted and retains in his possession, because only as to that is he compared to the thief. But a participant in the damaging action is held for the whole as often as his cooperation truly exerted influence on the substance of the damage and cannot be excused from formal sin; because then his action will be truly, efficaciously, and unjustly damaging. Cf. St. Alphonsus, n. 571. - Billuart, dissert. 8, art. 13. - Carrière, n. 1197.

n. 438.

You Will Resolve. - 1st. He is not held to restitution who from so grave a fear cooperates with respect to damage in the goods of fortune, whether the cooperation is mediate or immediate, so that the damage inflicted upon the neighbor is much less than that which threatens you and of such a nature that the neighbor must then be judged not to be reasonably unwilling. - I said with respect to damage in the goods of fortune, because as to the goods of life, the owner must always necessarily be unwilling. Cf. St. Alphonsus, n. 571.

2nd. Merchants who sell weapons indiscriminately are not held to restitution, even if they know that some in general will abuse them; because since the necessity of carrying on trade excuses them from sin, necessarily it also excuses them from the obligation of restoring. But if they foresee specifically that some are proximately about to abuse the aforesaid weapons, they cannot sell them on account of ordinary gain, but a grave cause is required, according as the hope of preventing the abuse is greater or less. Cf. Vogler, n. 315.

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. II, Art. III, § VII. On Negative Cooperators

n. 439.

Negative cooperators are those who do not prevent the damage of the neighbor when from office they are held to prevent it. They are commonly called the mute one, the one not opposing, the one not revealing. 1st. The mute one is he who does not speak, does not cry out, does not warn beforehand the one to be damaged, while by office or contract he is held to this. 2nd. The one not opposing is called he who, while damage is being inflicted, does not oppose, does not guard the thing, although he ought to perform this from justice. 3rd. The one not revealing is called he who, after damage has been inflicted, does not denounce the damager to the injured owner or superior, although from office and thus from justice he ought to denounce. Moreover the same principles and the same moral applications suit all these.

n. 440.

I say. By reason of damage not prevented, all and only those are obligated to restitution who from office were held to prevent it. All indeed, because, the office being supposed, there already exists a contract or quasi-contract which obligates from justice; but only those, because, the office failing, the whole force of obligation is from charity. But it is further necessary, for imposing the burden of restitution, that those who from office are held to prevent damage be able to prevent it without grave burden, because neither a contract nor positive law is accustomed, at least for the most part, to obligate with grave inconvenience. - Cf. St. Alphonsus, n. 573.

n. 440, Q. 1.

Questions

Question 1. Whether guards, for example, of woods, etc., are held to repair damage inflicted upon the owners?

Resp. Affirmatively; if by reason of their negligence and dissimulation the profit of the owner ceases, they are held to compensating the profit ceasing and the damage emerging. - Lugo, disp. 37, sect. 8.

n. 440, Q. 2.

Question 2. Whether the same are held to restore the price which perchance they accepted for dissimulating?

Resp. They are not held after the fact, neither to those from whom they accepted, nor to the owner: not to those, as we saw before when speaking of acceptance for an evil thing; not to the owner, because that is not taken away from the owner. They must make good to him the detriment which he has suffered, not the price which is handed over for the detriment. - Lugo, ibid.

n. 441.

You Will Resolve. - 1st. Servants are not held to restitution, at least probably, when through fault they do not prevent damages inflicted upon the master, because they are not hired except for labor and for general assistance. Nevertheless, except those who are placed over the keeping of a special thing and conduct themselves negatively while they see damage being inflicted on it. Cf. St. Alphonsus, on the fourth precept of the Decalogue, n. 344. - Ballerini, note (a), p. 582, note (b), p. 582, and note (a), p. 583.

2nd. A superior is not held, at least as to the internal forum, to repairing damage inflicted by his subjects, even if by not preventing the damage he sinned gravely. The reason is that the quality of superior by itself does not suffice for someone to be constituted as quasi-sponsor for the damages of subjects. Nevertheless, except if his silence is equivalent to a positive impulse. I said as to the internal forum, for as regards the external forum and precisely concerning servants according to our law, the superior is held if either expressly or implicitly he wills or approves the damage inflicted by the servant. But he is judged to will this damage when the servant causes it under his immediate supervision or from natural and culpable negligence known to the master himself. Cf. St. Alphonsus, n. 578. - Kent, Comment., vol. 2, part 4, lect. 32, n. 259.

3rd. For the same reason neither a husband nor a father is held for damages inflicted by a wife or by minor children. But in the external forum they are sometimes held; but in what cases and by what reason, you may see in Kent, Comment., vol. 2, lect. 28 and 29.

Concina, Compendium

Daniele Concina, O.P. — 31 passages

Diss. II, Chapter I — The notion of restitution, and the principles from which it proceeds. Tardy debtors and their confessors are admonished

n. I.

I. QUESTION I. What is restitution, and whence is it born? ANSWER. It is an act of commutative justice by which the loss inflicted upon another is taken away, or what has been received is rendered back, and justice, or equality, is constituted between the parties. Hence it is that restitution arises from a twofold principle: namely, either from unjust acceptance, or from the thing received. Under the name of unjust acceptance is understood whatsoever … … is understood, not only what has been taken away by theft or rapine, but also any injury whatsoever inflicted upon reputation or honour, by adultery, calumny, or defamation. Wherefore every loss opposed to commutative justice, whose right is violated, ought to be repaired by restitution up to equality. Restitution is said to be from the thing received when another's thing is with you, whether justly or unjustly. Here the two principles are sometimes conjoined, as in a thief, who is liable to restitution both from the thing received and from the unjust acceptance; sometimes separated, as in him who possesses another's thing in good faith, thinking it to be his own.

n. II.

II. QUESTION II. Whether restitution is to be made at once? ANSWER. Restitution from unjust acceptance is to be made forthwith. Restitution from the thing received is to be made within the time predetermined between the parties, as happens in a loan, in selling and buying, in a deposit, and the like. If another's thing (says St. Augustine, Epistle 54) can be rendered back and is not rendered back, penance is not done, but feigned. Reason shows the same. For it is no less against justice to retain against the lord's will than to filch, as St. Thomas teaches, II-II, q. 62, art. 8. As to take another's thing is a sin against justice, so also is it to detain it.

n. III.

III. Hence you may infer that those sin who put off the wages of workmen from day to day, against whom holy Scripture cries out: The wages of him that hath been hired by thee shall not abide with thee until the morning (Leviticus 19). And again, Tobias 4: If any man hath done any work for thee, immediately pay him his hire, and let not the wages of thy hired servant stay with thee at all. More vehemently does St. James the Apostle cry out against the oppressors of hirelings, chapter 5: Behold the hire of the labourers, who have reaped down your fields, which by fraud has been kept back by you, crieth: and the cry of them hath entered into the ears of the Lord of Sabaoth. In three ways is a wage defrauded: first, when it is not rendered; second, when it is diminished; third, when the rendering of it is deferred. And it is the wage that cries out at the tribunal of divine justice, not the poor man; because the poor man often, for fear of the rich, dares not cry out. But the wage fears nothing, and therefore implores vengeance upon the head of the rich man. Solomon, Ecclesiasticus 34, compares that crime to the shedding of blood: He that sheddeth blood, and he that defraudeth the hireling, are brothers. Nor does the excuse avail of those who say that they do not pay because they lack money. If they lack money, why do they call hirelings to work? These are thieves and robbers, since they know that they are not able to pay, and yet they flay their very skin.

n. IV.

IV. What is to be said of tardy debtors, who buy from merchants and do not pay promptly? We will pay, they are wont to say, as soon as may be. At present it is needful that we provide for our own affairs. Nobles set against it the splendour of their own estate, and the sustenance of sons, wives, and servants. The payment of debts would thrust me down from my proper estate: and therefore you bring it about that others go begging! You know not how to bear hunger, and therefore you cast others into famine? These men ought to diminish their estate, to restrict the number of their servants and horses, and to cut back the pomps of their wives and sons to the quick. Those who abound in goods are commonly debtors: for no one entrusts his wares to the poor. Those who are able to restore and to pay, even with inconvenience (never is restitution convenient), and who neglect it, are in a state of damnation, and multiply their sins day by day. The retention of another's thing (says St. Thomas, Suppl., q. 6, art. 5) against the lord's will runs contrary to a negative precept, which obliges always and for always: therefore a man is always bound to render it at once. Therefore those who omit restitution, unless they be truly powerless, are in continual mortal sin.

n. V.

V. QUESTION III. What is to be said of confessors who absolve tardy debtors? ANSWER. These sin, and multiply sacrileges. Nor is it lawful to pay a debt by parts. This truncated payment inflicts a grave detriment upon creditors. They ought to pay the whole debt at once, when in truth they can, even with inconvenience. The debtor is guilty, the creditor innocent. Therefore the guilty debtor, not the innocent creditor, is bound to sustain the inconvenience.

n. VI.

VI. The general rule therefore is this. As often as restitution is morally possible, it is to be carried out before such debtors are absolved. Let the confessor bear himself toward a tardy debtor as toward a concubinary, whom he is not to absolve unless he first cast out the concubine. Let the debts of the poor therefore, and the labours of hirelings, first be paid, and afterwards let them be absolved. Let the confessor beware of the opinion of certain casuists, and chiefly of Tamburini, Book III, Method, chapter 4, no. 5, who says: “If the confessor should foresee that the penitent will not make restitution, should the nullity of the title which the penitent thinks he possesses be disclosed to him, such nullity is not, according to Sánchez, to be made plain to him by the confessor, when he has not been questioned … to the prejudice of a third party who will go without what is his.” The confessor is bound by his office not only to judge, but also to teach. Many other laxer things Fr. Tamburini teaches there. See Vol. VII, book 2, dissertation 2, chapter 3; and the History of Probabilism and Rigorism, dissertation 1, chapter 5.

n. VII.

VII. QUESTION IV. What kind of fault of injustice brings in the debt of restitution? ANSWER. One fault of injustice is theological, another juridical. A theological fault is a sin either mortal or venial. A juridical, or civil, fault is the omission of the due diligence by which a man is bound to know, to beware, to provide, or to do something, whence a loss follows. Whether this fault contain malice or not is not attended to. It is threefold: grave, slight, and very slight. Grave is the omission of that diligence which prudent men of the same profession are commonly wont to use. This fault is called also most grave, as is manifest fraud — say, when the keeper of another's thing sleeps, or feigns to sleep; and graver, which is presumed fraud, as when a man knowing and able to hinder does not hinder. Slight fault is the omission of that diligence which the more prudent are wont to use. Very slight fault is the omission of that diligence which the most careful men use. This juridical fault is sometimes conjoined with, sometimes separated from, the theological fault.

n. VIII.

VIII. When none of these faults is committed, no debt of restitution arises, three cases being excepted. The first is, if your animal kill another's animal or trample down his crops, you are bound to compensate the loss. Second, if your slave injure another without his own fault, you are likewise bound to make good the loss, as is had in the Institutes, § Domino. Third, if something be thrown into the road out of your house, and it has not been proclaimed, and if loss befall passers-by without your fault, you are bound to compensate the loss. These laws, however, do not oblige before the judge's sentence, because they have been so received by use.

n. IX.

IX. QUESTION V. Does theological fault alone bring in the debt of restitution? ANSWER. Outside an office or a contract, theological fault alone, not interior but exterior, brings in the debt of restitution, because theological fault alone injures another's right. And so if the juridical fault be separated from the theological fault, it does not bring in the debt of restitution, unless a peculiar contract intervene. From a slight theological fault a slight, from a grave a grave obligation of restitution arises; sometimes nevertheless a slight exterior fault conjoined with an interior will of harming can bring in a grave obligation of restoring. An advocate uses all the diligence to which by force of his office he is held, and which diligent professors of this art are wont to use, but was unwilling to use greater diligence, out of hatred and inward envy against his client, that loss might thence follow to him: although this exterior omission be slight, yet conjoined with an inward depraved affection of harming, it can bring forth a debt of restitution. Read Vol. VII, Book I, dissertation 2, chapter 5, no. 8.

n. X.

X. QUESTION VI. Whether the professors of any art are bound to restitution for a slight or a very slight fault? ANSWER. It has already been said that no one outside an office or a contract is held to restitution for a slight or very slight juridical fault, when the theological fault is removed. Now it is asked whether craftsmen, physicians, advocates, and such as these, who exercise their arts for an agreed price, are bound to restore on account of a slight or a very slight fault? The common opinion denies it. Since the aforesaid are bound neither from the thing received nor from unjust acceptance: because unjust acceptance is not found without a grave fault joined to a theological fault; nor finally from contract, because none of the said persons obliges himself to exercise his art with greater diligence than prudent men of the same professions are wont to use. From a grave juridical fault alone, therefore, conjoined with a theological fault, does the debt of restitution arise in them. If nevertheless the aforesaid should promise greater diligence than the rest of the professors are wont to use, then they would be held more or less, according to the diversity of circumstances, to restitution for a slight or a very slight fault.

n. XI.

XI. QUESTION VII. What juridical fault is required in a contract, that it may bring in the debt of restitution? ANSWER. The first opinion teaches that one is held to restitution for a slight or a very slight fault, if the contract turn to your advantage alone, as in a loan for use, and the thing perish or be made worse. And this is the disposition of law, Digest, book 13, title 6, law 18: In things lent for use such diligence is to be furnished as each most diligent father of a family uses toward his own affairs. This disposition is congruous with natural equity, namely that he who uses another's thing gratis should use the highest diligence in its custody. For unless you be most diligent in this contract, when will you ever be so? Common sense itself dictates that a borrower be bound to greater diligence than the rest. If therefore the rest are held for a grave fault … … here he will be bound for a slight or a very slight fault. An exception is precarium, in which he who receives is held only for fraud or for grave fault; since the lord can at any time demand back a thing granted on sufferance. If the contract be useful to both parties, as the contract of letting, of hiring, of pledge, each is subject to restitution for grave and slight fault, but not for very slight. If the contract turn to the advantage of the giver alone, as happens in a deposit, he who receives is held to restitution for grave fault and fraud only.

n. XII.

XII. QUESTION VIII. How is a possessor in good or in bad faith held to restitution? ANSWER. A possessor in good faith is he who, invincibly reckoning another's thing to be his own, possesses it. A possessor in bad faith is he who knowingly retains another's thing, or who by vincible or affected ignorance persists in the possession of another's thing. A possessor in good faith can consume and sell another's thing so long as he perseveres in good faith; but as soon as he observes that the thing is another's, he is liable to restitution: because if he be in delay, he becomes a possessor in bad faith, unless a completed prescription go before. If, after he has consumed the thing, he observes it to be another's, he is bound to restore that in which he has been made richer. But if the thing subsist, if not in kind, at least in an equivalent, then you are bound to restore it. You have eaten another's thing, thinking it your own, and have preserved your own. Then another's thing exists equivalently in yours. Therefore you ought to restore it. But if you had consumed nothing of your own, you are held to nothing, because you have been made richer by nothing. If you doubt whether you have been made richer by another's thing, then the matter is to be settled in proportion to the doubt, at the arbitration of wise men.

n. XIII.

XIII. QUESTION IX. Whether one who in good faith buys or receives from a robber things consumable by use is bound to restore the thing, if it subsist, or that in which he has been made richer? ANSWER. You have received money from a robber, or have bought wine, wheat, a garment, or the like; you have come to a supper made of food filched by theft in another's house, being about to consume just as much in your own. If the thief be made powerless for restitution, all confess that you ought to restore the thing, if it subsist, either in the thing itself or in an equivalent, that is, in that by which you have been made richer. But it is disputed whether you ought to restore, when the thief has goods with which he can himself restore. And the discourse is of a possessor both in good and in bad faith. For as regards this, they are equal. If the thing subsist, each is bound to restore the whole: if the thing do not subsist, each ought to render back an equivalent price, with this sole difference, that a possessor in good faith is bound to restore only that in which he has been enriched, whereas a possessor in bad faith is bound to restore the whole.

n. XIV.

XIV. To me the more probable opinion is that each possessor, whether of good or of bad faith, is held to restitution with the sole assigned difference. Since a thing, wherever it be, cries out to its own lord, who has the right of demanding it back wherever it subsist, whether in itself or in an equivalent. This thing, wheresoever it comes, carries with it the inseparable burden of returning to its own lord. Some distinguish between things mingled and things not mingled with the robber's goods. But this mingling cannot despoil the lord of the right of demanding back his own thing wherever it subsist, either in itself or in an equivalent, provided it be certain that the thing subsists in one way or the other.

n. XV.

XV. He who possesses another's thing not consumable by use — namely a horse, a book, a picture, and the like — whether in good or in bad faith, is bound to restore the same if it subsist, because this, while it subsists, cries out to its lord, as the common and true opinion teaches. A possessor in bad faith, whether the thing subsist, or have been consumed, or sold, or have perished, even without his own fault, ought to restore either the thing or the price of the same. Besides which, the unjust plunderer or retainer is bound to compensate all the losses which the lord has suffered on account of the privation of his thing. You have plundered or retained the moneys of a merchant, which if he had had he would have exposed to trade, or would have repaired imminent losses: beyond the restitution of the money plundered or unjustly retained, you are bound to compensate the losses and the gains not obtained on account of the privation of that money.

n. XVI.

XVI. QUESTION X. If a thief plunder a thing which would have perished with the lord, is he bound to restore the same if he preserve it, or the price, if it have perished? ANSWER. If you doubt whether the thing could have perished with the lord, you ought to restore the same, or the price of the same, even if it should perish without your fault — at least according to the estimation of the doubt. The same is to be said of a depositary, and of a debtor who is in delay of restoring another's things. Again, even if it were certain that the thing would have perished with the lord unjustly — say because a thief was going to filch it — you are liable to restitution, because another's theft does not excuse your own. These things are beyond dispute. Similarly, when you knew for certain that the thing would have been lost with the lord by a fortuitous chance, say by fire or shipwreck, if you should snatch it away, you would owe to restore it or the price of the same, even if the thing perished with you at that time at which it would also have perished with the lord: since you plundered that thing not that you might keep it for the lord, but that you might turn it to your own advantage. Therefore you plundered with the burden of restitution. That the thing here perished with you, you ought to impute to yourself. Unjust acceptance by its own nature brings an injury upon the lord; nor is the injury here taken away by this, that the thing would have been lost with the lord. Therefore the debt of restitution which you contracted by that act by which you took the thing away always perseveres until it be compensated by you. It is not hidden from me that many defend the opposite. But to me this opinion seems the more probable. You have stolen in a raging fire a thing certainly about to be burned. If the thing subsist with you, or the price of it, you are bound to restore it, even if it perished with you in another fortuitous fire. In the sacking of a city you steal another's thing, which would certainly have been filched by other thieves: you ought to restore it to the lord if it subsist, or the price, if you have sold it.

n. XVII.

XVII. If you snatch another's thing from a fire, and, the danger being past, retain it, and it perish with you, not being about to perish with the lord, you are held to restitution, all confessing it. He who in bad faith filches another's thing, which if kept would turn out better (say you have laid waste a vineyard or crops unripe at a time when they were worth fifty, but at the time of ripeness would be worth a hundred): if the lord was going to sell those things at the time when you plundered them, you ought to restore the price according to the value which they have in the former state; but if he was going to preserve the aforesaid things, there is to be restored as much as, according to the estimation of prudent men, is worth the hope of keeping those things until the better state.

n. XVIII.

XVIII. QUESTION XI. To whom does a thing taken away by theft accrue? ANSWER. It accrues to the lord, not to the thief. Wherefore the thing is to be restored with the increase made with the thief, even if the lord would not have kept it until this time. Hence, if the price be increased on account of the multitude of buyers, restitution is to be made according to this value. If a thing taken away by theft in a cheaper state has been made better, and afterwards reduced to a worse state, it is to be restored according to the increase, if the lord would have kept it until this time; and if at the time of the cheaper price you sold the thing, and the lord likewise would have sold the same at this time, restitution can be made according to this value. This all confess; but they differ as to what you ought to restore when at the time of the increase you sold a thing which the lord would not have kept until this time. Many defend that you ought to restore only according to the value of the cheaper price, since at that time it would have been sold by the lord. Others maintain that you ought to make restitution according to the value of the increase, whether intrinsic or extrinsic, when you at the time of this greater value sold or consumed the thing, although the lord would not have kept that thing until this time. Since the value of a thing accompanies the thing itself. Therefore, if the thing is the lord's, as in fact it is, so is the value of the thing. You sell or consume the thing at the time of the greater value: therefore this value is to be restored. I yield. Are you not, at the time at which you unjustly sell or consume the thing, bound to restore it to the lord? Further, the price of a thing is equivalently the thing itself. Therefore this price is to be restored. Here the second opinion seems to me the more probable.

n. XIX.

XIX. QUESTION XII. How ought a possessor of doubtful faith to restore another's thing? ANSWER. A possessor of doubtful faith can be regarded at the beginning of possession and in its progress. He who doubts that a thing is another's, and buys it not to be handed over to the lord but that he may retain it for himself, is a thief, and is held to restitution both by reason of the thing received and of the unjust acceptance, even with the danger of losing the price: because he willingly subjects himself to this danger. Wherefore he ought to use diligence to find the true lord, to whom he may hand over the thing bought. If after moral diligence he does not find the lord, and the doubt ceases, he becomes a possessor of good faith, and can by right retain the thing for himself. If the practical doubt persevere, the thing is to be divided among the poor, the price paid in the purchase being retained in proportion to the doubt. If the doubt occur in the progress, and the thing was consumed before any doubting, he ought to restore that in which he has been made richer: if the thing exist, diligence is to be used that the lord be found, and in proportion to the doubt the matter is to be settled by the counsel of prudent men; nor does that rule avail: the condition of the possessor is the better.

n. XX.

XX. QUESTION XIII. What fruits is a possessor of good faith bound to restore? ANSWER. He is bound to restore all natural fruits, if they subsist, expenses being deducted; if they have been consumed, that in which he has been made richer. Since a fruit-bearing thing brings forth fruits for its lord. And this holds true even if the lord would have left the thing untilled.

n. XXI.

XXI. QUESTION XIV. What fruits ought a possessor of bad faith to restore? ANSWER. He is bound to restore all natural and industrial fruits which the lord would have perceived, expenses being deducted, whether they subsist or not, whether he has been made richer or not. The same is to be said of a possessor of good faith, from the time at which he became conscious that the thing was another's. If he defer restitution, he becomes a tardy debtor, and is bound to restore all the fruits which he perceives, and to compensate both emerging losses and ceasing gains. If a thief does not perceive the fruits which the lord would have perceived, he ought to restore the price of the same. On the contrary, if the lord would have perceived no fruits, then, although the robber does not perceive them, he is not held to their compensation. But if the thief perceive natural fruits which the lord was not going to perceive, he ought to restore the same, because the thing would have borne fruit for the lord.

n. XXII.

XXII. QUESTION XV. What expenses may a possessor, whether of good or of bad faith, deduct? ANSWER. Of expenses, some are necessary, as the tillage of fields, the food and custody of animals, the repair of houses, without which things either suffer detriment or bring forth no fruits. Others are useful, which tend to this, that things be made better or increased, as the planting of trees, the multiplication of a flock, and the like. Others are voluntary, as pleasure-gardens, paintings, birds, and the rest of that kind, which serve pleasure. Industry, labour, and inconvenience in gathering the fruits and in preserving the things come under the name of expenses.

n. XXIII.

XXIII. All useful and necessary expenses made by either possessor are to be deducted in restitution, and the lord is bound to reckon them: because no one ought to carry off advantage from another's labours. If nevertheless the lord would have preserved his things without these expenses by his own industry, then they are not to be rendered to an unjust possessor, but only to a possessor of good faith. If the expenses should exceed the fruits, the lord would not be held to pay them, because then the thing would not turn to his own advantage, and he would be compelled to buy his own thing too dearly. Authors dispute concerning the restitution of expenses which are voluntary. As regards practice, restitution ought to be made at the arbitration of prudent men.

n. XXIV.

XXIV. QUESTION XVI. He who buys a thing in good faith, may he render it to the thief and demand back the price, or is he bound to restore it to the lord without the price? ANSWER. If the buyer prudently judges that the thief will restore the thing to the lord, without doubt he can rescind the contract and demand back the price. The difficulty is when the buyer doubts whether the thing will be restored by the robber to the lord, and the buyer cannot receive the price from the thief unless he restore the thing bought. For if he could recover the price, all confess that the thing is to be restored to the lord.

n. XXV.

XXV. The first opinion denies that the buyer is bound to restore the thing to the lord with the loss of his own price. The opinion true to me is that the buyer in the case proposed is bound to restore the thing to the lord, as St. Thomas teaches, II-II, q. 62, art. 6. Concerning him, he says, who has received another's thing, two things are to be considered: the thing received, and the acceptance. By reason of the thing itself, he is bound to restore it as long as he has it with him: because what he has beyond that which is his own ought to be taken from him and given to him who lacks it, according to the form of commutative justice. The buyer in the case proposed has beyond that which is his own, because the thing bought from a thief is not his but the lord's. To him therefore it ought to be rendered. Nor can the buyer sell the stolen thing to another, because no one can sell another's thing against the lord's will. Therefore neither to the thief, who is not going to restore it to the lord. For a buyer selling a thing to a thief who will not restore it becomes a partaker of the theft.

n. XXVI.

XXVI. Our adversaries object: A buyer of good faith inflicts no injury upon the lord. What of it? Therefore he is not held to restore from unjust acceptance, but from the thing received. They insist: In an equal case of innocence the buyer ought to provide for himself rather than for the lord. As the lord has a right to the thing, so the buyer to the price. Rightly, well. Therefore let the thief render the price to the buyer, and the buyer the thing to the lord, and all is just. But because the wicked thief refuses to render the price, must therefore the buyer unjustly retain another's thing? Because the thief commits an injustice, must you likewise do an unjust thing? Other sophisms I pass over. Read Vol. VII, Book I, dissertation 2, chapter 7, no. 17.

n. XXVII.

XXVII. QUESTION XVII. He who in bad faith buys another's thing from a robber, ought he to restore it to the lord or to the thief? ANSWER. De Lugo, Diana, and others contend that the thing is to be restored to the robber. But from the things which have been said, the opinion appears false by the better right. For here he is bound to restore to the lord not only from the thing received, but also from unjust acceptance.

n. XXVIII.

XXVIII. QUESTION XVIII. He who in good faith sells to another a thing bought from a robber, is he bound to render the price to the lord or to the buyer? ANSWER. Some teach that you are bound to restore neither to the lord nor to the buyer, save that in which you have been made richer. The opposite opinion is to me the more probable. If the aforesaid seller of good faith retained with himself another's thing, the truth being known, he would owe to restore it to the lord. But the price succeeds to the thing: therefore this price is to be restored to the lord, not to the buyer. The buyer intends to pay the price to the true lord. But you who sell another's thing are not the true lord. Nor do you in the sale transfer dominion, since you lack it. Finally, a thing always, wherever it be, cries out to its own lord: therefore either the thief, or you, or the buyer are bound to make good to the lord. The first who is bound to make good to the lord is the thief. The second is you, who bought the stolen thing, supposing that the thief is unwilling to restore. Further, as the thief with respect to you is alone liable to restitution, since he is the first guilty party, so you with respect to the buyer, who succeeds in the third place, are prior in the burden of restitution. Therefore if the buyer should restore the thing to the lord, you would owe to restore the price to the buyer. On the contrary, if the buyer does not render the thing to the lord, you ought to restore the price to the lord.

n. XXIX.

XXIX. QUESTION XIX. He who receives false money and hands it over to another in spending it, to what is he held? ANSWER. Diana with others answers that he who spends money in good faith is held to nothing, even if he afterwards learn that it was false; but that he is bound if he spend it in bad faith. But the true opinion teaches that in each case he is held to compensate the loss. Would you not, if you spent lead in place of silver, whether in good or in bad faith, be bound to make good the loss? No one therefore who has received false money, even in good faith, may by right put it about: and if he has put it about, knowing this, he is held for the loss.

n. XXX.

XXX. QUESTION XX. He who sells another's thing at a greater price, is he bound to restore the increase to the lord? ANSWER. That increase of price which proceeds from the thing itself remaining unchanged both in substance and in the circumstances of place and time is to be restored to the lord. If on the contrary the increase be the fruit of the seller's industry alone, either because he kept the ware, or because he transferred it to another place, then it is not owed to the lord, but the seller can retain it for himself.

n. XXXI.

XXXI. QUESTION XXI. If you sell your thing to a thief, from whom you receive in good faith stolen moneys as the price, are you liable to restitution? ANSWER. The Salmanticenses answer that if you have the moneys unmingled and separate, you are held to restitution; otherwise if the moneys be mingled with your own. I have already said above that this mingling does not hinder your being held to restitution. For when you are certain that another's moneys are found in the heap of your own moneys, no reason appears why by force of that mingling you should acquire dominion. You are therefore held to restitution of the thing received.

Bontempi, Palladium Theologicum V

Gaudentius Bontempi of Brescia, O.F.M. Cap. — 40 passages

Tr. I, Disputation XXIV: On Resti…, Question I: What restitution is

RESTITUTION, as is gathered from D. Bonaventure in 4. dist. 15. quaest. ultima, is an act of Commutative Justice, by which, according to the equality of thing to thing, what has been taken from another, whether willingly or unwillingly, is given back to him. So also D. Thomas here, and others in Valencia disp. 5. quaest. 6. puncto 1; Caspensis disp. 1. sectione 1. de Restit. More properly, however, it is when what has been unjustly taken away is given back, as Tanner notes disp. 4. quaest. 6. dub. 1, with Bannes quaest. 62. art. 1 and others.

CASPENSIS, however, OBSERVES, from D. Bonaventure loc. cit. and Lib. 6. Compend. Theol. cap. 29, that Restitution differs from Satisfaction, as the inferior from the superior, because every restitution is a satisfaction, yet not every satisfaction is a restitution; for he who satisfies for himself is not said to restore. And so Restitution is the giving back of what was received, and pertains to Commutative justice: but Satisfaction is the taking on of some burden because of an offense inflicted on another, and pertains to Vindictive justice.

MOREOVER, Satisfaction for sins, if it is made ex opere operantis, must be by a man existing in grace: but Restitution can be fulfilled by a man existing in mortal sin. Satisfaction, too, can be a part of the Sacrament of Penance: but Restitution by no means. Finally, Satisfaction is at the discretion of a good man: but Restitution of itself must be made according to equality. Moreover, all say that Restitution is an act of Commutative Justice.

Tr. I, Disputation XXIV: On Resti…, Question II: Whether restitution is necessary for salvation

IT IS A COMMONPLACE, that saying of D. Augustine epist. 44: The sin is not forgiven unless what was taken away is restored. And cap. ult. de Iniustitiis: If damage has been given by your fault, you are bound in justice to make satisfaction. From which you have that to restore is a precept, as the Holy Doctor teaches in 4. dist. 15. quaest. ultima. But it is not necessary as a means, for we are often excused from restitution on account of incapacity, and yet we can still be saved, as I shall show from D. Augustine; but means, even when omitted without fault, impede salvation.

THERE IS, however, a difficulty: Whether this precept is negative.

OBSERVE, for distinguishing, that to recognize whether a Precept is affirmative or negative, one must attend to the matter which is commanded, not to the manner in which it is enunciated; for if the matter, or object, is something forbidden, it will be negative; but if something commanded, it will be positive.

I ASSERT it is negative in substance, although in the form of words it is affirmative: Restore what is not thine, that is, do not retain what is another's: So the Doctors who seem contrary are reconciled, in Tanner disp. 4. quaest. 6. num. 8; Bassaeus num. 4.

FOR IT IS PROVED that this grave precept is expressed positively by Matthew 22: Render therefore to Caesar the things that are Caesar's. And Romans 13: Render to all men their dues: tribute, to whom tribute; custom, to whom custom. Which the Holy Doctor pursues in Confessionali, cap. 4. partic. 2.

IT IS PROVED, secondly, by the Holy Doctor loc. cit. and in Speculo, cap. 2, toward the end, with a splendid testimony of St. Augustine, epist. 54. ad Macedonium, which is cited in Regula Peccatum, de regulis Iuris, in 6, and in cap. cum tua, extra de usuris, and in Decretis 14. quaest. 6. can. 1. For when Macedonius had written in the letter, the preceding 53rd, which is to Augustine, that some even desired the penalty of their crime to be relaxed for them, while they possessed that for which the crime had been committed. St. Augustine answering says: You mention that worst kind of men, upon whom every medicine of penance is of no profit. For if the thing of another, on account of which the sin was committed, is not restored when it can be restored, penance is not done, but feigned: but if it is done truthfully, the sin will not be forgiven unless what was taken away is restored — but, as I said, when it can be restored. For often he who takes away loses, either by suffering evil men, or by living badly himself; and he has nothing else from which he may restore. To such a one, certainly, we cannot say: Restore what you took away, except when we believe him to have it, and he denies it. From this testimony of St. Augustine, D. Thom. loc. cit. and the Disciple collect, especially Tanner disp. 4. quaest. 6. num. 7, that restitution is not necessary by a necessity of means, because the condition is added: if he can.

BUT THAT the Precept is negative is proved by Valencia with the argument of St. Bonaventure in the place cited, because it obliges forever not to retain the thing of another to the injury of its Owner, and the unjust detainer is always in unjust delay, sinning actually, as the Holy Doctor says in the place cited, and as I showed in the first part of the Summa.

BASSAEUS ANSWERS that it does not oblige forever, e.g. in necessity. But then things are common; therefore he is not an unjust detainer, and so is not subject to restitution.

YOU WILL OBJECT. If the debtor sins by not restoring, the creditor ought to give way, lest the debtor be damned; for the salvation of the soul is to be preferred to riches.

n. 10.

ADRIANUS de restit., Sotus Lib. 4. de Iustitia, quaest. 6. art. 2, and Valencia disp. 5. quaest. 6. puncto 2, struggle with this. But I answer easily from D. Bonaventure in 3. dist. 29. quaest. ultima, that the Order of Charity between my goods and my neighbor's requires necessity in the neighbor — a necessity, surely, which is not found in him who can, and wills not, to restore. But I am not bound to give support to his evil will; for Charity does not act perversely.

Tr. I, Disputation XXIV: On Resti…, Q. III, Doubt III: Whether one who has promised three or four times to restore, and has not restored, is to be absolved before restitution

The answer is with D. Bonaventure at the place cited, whom Fagundez follows on the seventh precept of the Decalogue, cap. 14. num 17. if the debt be public, such as is seen in usurers and the ravishers of churches, he is never to be absolved, nor even the first time, before he pays and gives security; and this on account of the scandal of the people.

The Sainted Doctor adduces cap. 3. particula 54. the Decree of Eugenius III. against the ravishers of churches, which is found in extra de raptoribus, where he decrees this, saying:

Statuimus, ut quicumque ex his, qui violenter surrexerint in rapinam, sive in Ecclesiarum violatione manifeste deprehensus fuerit, nisi prius ablata restituit si poterit; vel emendandi firmam, et plenam fecerit securitatem, poenitentiae beneficium ei penitus denegetur. Si vero usque ad obitum in contumacia sua duraverit, et in extremis positus, remedium poenitentiae humiliter postulaverit, si emendationem, vel emendandi securitatem praestiterit, ei poenitentia, et Ecclesiastica sepultura concedatur. Qui autem in sanitate obstinata mente non poenituerit; vel emendaverit; et in morte securitatem praestare nequiverit, solemnitas poenitentiae parum prodesse videtur, sicut credimus, sed de peccato contrito viaticum non denegetur, ita tamen, ut nullus clericorum sepulturae illius intersit, nec eius eleemosynam recipere praesumat. Quod si quis presbyterorum, vel clericorum contra haec in vita, vel in morte poenitentias dare, aut sepulturae interesse, vel eorum eleemosynas accipere attentaverint, seu huiusmodi rapinae participes inventi fuerint; ordinis sui damnum irrecuperabiliter patiantur, et Ecclesiastico beneficio careant. Haec Canon.

But the Sainted Doctor notes, from Raymond, that this decretal is local in scope; nor are public suffrages to be denied to the penitent; yet his heirs, to whom his goods have passed, are to be compelled to satisfaction, extra de sepulturis, §. Parum prodesse, as far as the temporal punishment is concerned.

Then, if Excommunication has been imposed upon the non-payer, as it is said to be imposed in the Tridentine, sess. 25. cap. 22. upon those who do not pay Tithes, he is not to be absolved even the first time, unless he pays, or, if he cannot, gives a pledge of security.

He adds thirdly that in the ordinary cases he who has three times failed to carry out the promise is considered to be trifling; yet there may be some circumstance of person, place, etc. such that it can seem to the Confessor, who needs prudence, that he should be absolved. So also Sayrus in clav. reg. lib. 10. tract. 5. cap. 5. num. 26. and others as reported by him.

From what has been said you have, also, that he who in life is unwilling to restore, but reserves the committing of it to his heirs at death, is not to be absolved. So the Sainted Doctor at the place cited, and D. Thom. quaest. 62. art. ultim. Toletanus in summa, lib. 5. cap. 24. Navarre Lib. 4. de restitut. cap. 12. num. 72. Soto lib. 4. de Iustitia, quaest. 7. art. 4. Sylvester V. restitut. 5. num. 7. and others to whom Fagundez subscribes at the place cited, num. 19.

The reason. Fagundez follows D. Bonaventure in the speculum animae, cap. 2. §. 4 and in the Confessionale, cited by name, because he who unjustly retains is always in act a debtor bound to pay, and unjust, if he does not pay.