Restitution

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, Chapter II. First Root of Restitution

THE first root of restitution is the possession of another person’s property without any just title. 'This possession may hitherto have been in good faith without any suspicion that the property belonged to somebody else, or it may have been in bad faith with the knowledge that someone else was the rightful owner, or in doubtful faith with doubts about the ownership. The obligations of the possessor of another’s property will be different in these three cases. We will treat of them in the three following sections:

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. II, Section I. Possession of Another's Property in Good Faith

When one discovers that he is in possession without any just title of what belongs to someone else, justice requires that he should restore it to the rightful owner, or at least give the owner warning so that he may remove it at his own expense. For justice requires that all should have their own, res clamat domino, and if one knowingly detains what belongs to another against the owner’s reasonable wish he commits the sin of theft.

If the possessor of another’s property consumed it while he was in good faith, and now when he finds out the truth, he neither has the property itself nor its equivalent, he is bound to nothing, res perit domino. The property no longer exists, and cannot be restored to its true owner; there was no fault committed by consuming what was supposed to belong to the consumer, so there is no obligation to make compensation to the owner for his loss. This is all the more true if the property was destroyed, or perished by accident, or in the ordinary course of nature.

If any natural or civil fruits, derived from the property of another, still remain after the possessor has found out that the property belonged to someone else, he must restore them to the owner of the property to whom they belong, for res fructificat domino, Fruits of his own industry acquired on occasion of his possession of the property of another, he may keep, for the labourer has a right to the fruit of his toil.

Mixed fruits, which are partly due to industry, partly to the natural or artificial fertility of the property, belong partly to the labourer, partly to the owner of the property, according to what the law may prescribe, or according to the estimate of a prudent man.

The foregoing rules tell us what has to be done when one discovers that he has possession of the property of another, or when such property has perished while in his possession, But suppose that while he was in good faith the possessor of another’s property, he sold it to someone else, and afterwards he finds out that it was not his to sell, what are his obligations in that case ¹ No general answer can be given to this question; it will be necessary to distinguish according to several possible hypotheses.

The sale may have taken place in market overt, and then though the seller could not give a valid title to the property, yet the law does so. The Sale of Goods Act, 1893, sec. 22, makes the following provision: “ Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.”

According to Indermaur, ‘‘ By sale in market overt is meant selling goods in open market as opposed to selling them privately. In the country the market-place or piece of ground set apart by custom for the sale of goods is in general the only open market there; but in London, and in other towns where so warranted by custom, a sale in an open shop of proper goods is equivalent to, and in fact amounts to, sale in market overt,””²

In spite, however, of sale in market overt, “‘ Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, “notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.’”” In this case on conviction of an offence which involves larceny, the court, if the accused has sold the property to an L: innocent purchaser, on restitution of the property to the owner, may order the price paid by the purchaser to be repaid to him out of any money found on the convict when arrested. This provision is in addition to that allowing compensation to a person injured by a felony.”³

If the sale did not take place in market overt, and the stolen property has not been restored to the true owner, the seller is bound to nothing in justice, according to a very probable opinion. For the property is no longer in his possession or under his control, so he cannot restore it to the owner; if he received money for it, he received it in good faith for value, and when he has mixed it with his other moneys it would seem that he makes it his own.⁴ It would seem that this is in accordance with English law: ‘‘ A mesne possessor acquiring the goods innocently from the thief, and reselling before conviction, is under no obligation in trover to the original owner.”⁵

It was said above that the seller is bound to nothing in justice, but if without relatively serious inconvenience to himself he can, by giving the requisite information, procure the restoration of the property to its rightful owner, he will be bound to do this out of charity.

If the property was not sold in market overt, and if it has been restored to the rightful owner, the purchaser can demand back the purchase money from the seller, rescinding the contract for failure of warranty which is implied in every such sale: ‘“‘ In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is: (1) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass; (2) an implied warranty that the buyer shall have and enjoy quiet possession of the goods.’”⁶ These solutions would seem to be tenable whether the mesne possessor obtained the property in good faith by purchase or by gift, and whether he gained anything or not by selling it. For although one who possesses another’s property either in itself or in its equivalent is bound to make restitution to the owner, a mesne possessor who has sold it in good faith to another no longer possesses it even in its equivalent, for the price after being mixed with his own moneys is not its equivalent; and although he is the richer by the transaction, yet it cannot be said that he is the richer unjustly, and so he is not bound to restitution.⁷

It is a disputed point among theologians whether a purchaser in good faith from a thief of stolen goods, on finding out that the goods were stolen, may return them to the seller if he cannot otherwise get back his money. It would seem that in conscience he may do so, for in so doing he does not wrong the rightful owner; he replaces the goods where he found them, so to say, and they are in no worse a position through having been for a time in his possession. He is justified in leaving them there if he cannot otherwise save himself from loss.⁸ Such an action, however, might bring him into collision with the law of the country. In England it might amount to misprision of felony or be considered compounding a felony.

¹ Principles of the Common Law, p. 323, 6th ed.

² Sale of Goods Act, 1893, sec. 24.

³ Encyclopedia of Laws of England, s.v. Stolen Goods.

⁴ Stephen, 2, p. 60.

⁵ Encyclopedia of Laws of England, s.v. Stolen Goods.

⁶ Sale of Goods Act, 1893, sec. 12.

⁷ Bucceroni, 1, n. 1341.

⁸ St Alphonsus, 3, n. 569.

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. II, Section II. Possession of Another's Property in Bad Faith

When one has wrongfully had possession of another’s property, well knowing that he had no right to keep it, on coming to a better frame of mind he is bound in the first place to restore the property itself to its rightful owner. Moreover, if the owner has suffered any special loss through being deprived of what belongs to him, the thief must make this good, inasmuch as he was the unjust cause of it. Furthermore, all natural or civil fruits of the property he must restore to the owner, for res fructificat domino; and if they have been consumed, their value must be given to him or else he will not have his own. Any fruits which are due to the industry of the thief, and all necessary and useful expenses which he incurred in respect of the property, he may in conscience deduct from what must be restored to the owner, for justice only prescribes that each one should have his own, not more than his own.

If another’s property is saved from fire, or from certain destruction in any other way, it still belongs to the former owner, for res clamat domino. At most, he who saved it has a claim to reasonable compensation for his trouble. If stolen goods perish in the hands of the thief, he must make restitution for them to the owner, unless they would have perished in the owner’s hands at the same time and in the same way. For if they would have perished at the same time and in the same way, the thief is not the cause of their destruction: otherwise he is, and he must bear the consequences.

If stolen property had different values after the theft, the owner’s losses must always be made good; and so if he intended to sell it when at its highest value, that value must be restored to him. Usually, however, if the property itself cannot be restored, it will be sufficient to restore the value which it had at the time of the theft. This is the teaching of many theologians and it seems to be in agreement with the provisions of English law: ‘‘ The measure of damages in an action for conversion is the actual loss sustained by the wrongful act. In general, this would be the market value of the goods at the time of conversion. ... And the jury on the trial of an action for conversion may also give damages in the nature of interest over and above the value of the goods converted.””

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. II, Section III. Possession of Property in Doubtful Faith

There is only question here of one who has well-grounded reasons for thinking that something in his possession belongs to another. We do not contemplate the case of one who merely suspects without solid reason that what he has belongs to someone else, much less the case of one who is ignorant of what title he has to his property. The doubtful faith of such a one as we are contemplating may date from a period subsequent to his obtaining possession of the property, or it may date from the time of his gaining possession of it; the possessor’s obligations will be different as one or the other of these suppositions is verified.

When the possessor was at first in good faith but afterwards a doubt arose as to whether the property really belonged to him, inquiry must first of all be made to try and find out the true owner. Unless the possessor in doubtful faith does this, he exposes himself to the danger of keeping what does not belong to him, and thereby sins against justice. If he discovers the rightful owner, the doubt is solved; if after inquiry the question of ownership still remains doubtful, the possessor may keep the property and use it as his own. for in dubio melior est conditio possidentis. * Encyclopedia of Laws of England, s.v. Conversion, Action of.

If the possession began in doubtful faith, and the property was taken from another’s possession, injustice was committed, and the whole must be restored to the original possessor, for possession was in his favour.

If the property came into the hands of the doubtful possessor by sale or gift, or in some other lawful way, presumptions may sometimes be used to solve the doubt. Thus, even though we get a more than usually cheap bargain, we need not conclude that the seller is a thief, for nemo malus praesumitur nisi probetur.

If the doubt cannot thus be settled, nor the question of ownership cleared up by diligent inquiry, theologians commonly teach that the property must be divided according to the probabilities of the case. For one who began to possess in doubtful faith cannot claim the benefits of possession and keep the whole. He may, however, keep a portion corresponding to the degree of probability of his right of ownership. A few recent theologians, however, doubt whether this solution rests on solid grounds, for even the possessor in doubtful faith has at least the fact of possession in his favour, and, ex hypothesi, it is not certain that he is not the rightful owner; in fact, he has some claim to be considered the rightful owner. These theologians, therefore, would permit the possessor in doubtful faith to retain the property, provided that he be ready to surrender it to the rightful owner if and when he should appear.¹

¹ Bucceroni, I, n. 1354.

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

He who by fraud, violence, or other unjust means leads another to commit sin, or deprives him of any supernatural or natural good belonging to the soul and mind, is guilty of injustice, and is bound to make reparation to the injured party. If the same effect is produced by persuasion or other not unjust means, a sin of scandal is committed; but justice is not violated, nor is there any obligation to make restitution. These principles are not only applicable to sin, but to vocation to the religious state and to sound doctrine, especially of the practical order. Priests or masters, who by their office are bound to instruct others and teach them the truth, are in a special manner obliged to correct any false instruction which they may have given. Better leave people in ignorance than imbue their minds with falsehood.

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.

When one has injured another’s reputation by slander or detraction, he is under a grave obligation in serious matters to restore his neighbour’s good name as far as he is able, and to make reparation for all other damage which the injured party has suffered in consequence of the slander or detraction. If he has lost his position or money, restitution of these must be made as far as possible, We saw above that more probably the detractor is not bound to pay money precisely in compensation for the injured reputation, unless condemned to do so by competent authority. The mode of restoring the injured reputation of another will vary according to circumstances. If no other way presents itself, the slanderer must say that he spoke falsely, for the reputation of the innocent is of more consequence than that of the guilty. A detractor who has injured the good name of another by making known his secret sin, cannot, of course, say that he spoke falsely, but he must do what he can in some other way towards the desired end. There will be no obligation to do anything if the calumny or detraction has been forgotten, or if the injured party has lost his reputation in some other way, or if the injured party prefers that the matter should not be reopened, or if it is physically or morally impossible now to do anything towards restoring his good name.

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.

n. 5.

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.

n. 6.

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 IV. Co-operation in Injustice

THE question of restitution is complicated and beset with special difficulties when there are more agents of injustice working together than one. There will, indeed, be the same roots of restitution which we treated of above, but difficulties arise as to who among the co-operators is bound to make restitution, and who is primarily bound. One may help another, or co-operate with another, in inflicting an injury in various ways. Nine ways are commonly enumerated: by counsel, by command, by consent, by provocation, by praise or flattery, by being partner in the sin, by silence, by concealment, by defending the ill done. In the first six of these ways the co-operation is positive, in the last three it is negative, Something must be said about each (cf. Can. 2209).

One co-operates with another in injustice by counsel when, by giving advice or by urging motives, or by showing how it may be done, he causes that other to commit an act of injustice. Such a one is obviously the moral cause of the injury, and all the conditions required for imposing an obligation of making restitution are present. If the principal agent was already determined to commit the injury, this will in that case not be due to the counsellor, and he will not be bound to repair it. Nor will the counsellor be bound to make reparation to the principal agent for any loss which the latter suffered in consequence of inflicting the injury, unless he induced him to act by fraud or other unjust means. Moreover, if before the injustice was committed the counsellor efficaciously withdrew his advice, and proposed equally strong motives for desisting from the act, it would seem that he cannot be obliged to make restitution. If, however, he had showed the other how to commit the crime and thus made it possible, he must take means to prevent it being committed, otherwise he will be responsible. Confessors, lawyers, doctors, and others whose expert advice is asked are under a special obligation not to give advice which is injurious to their clients or to third parties. If they do this, they will be bound to make compensation to the injured party not only when they acted maliciously, but also when they gave injurious advice through gravely culpable ignorance or precipitancy. Others who do not specially hold themselves out as experts will not be bound to compensate those who ask their advice and suffer loss through following it. No injury was done by giving them what they asked for, no fraud was committed by the assumption of skill or knowledge which was not possessed; if they chose to follow the advice, they took the risk on themselves, and scienti et volenti non fit injuria.

He who follows unjust advice acts in his own behalf and in his own name, and so is the principal cause of the injury done. He is bound in the first place to make restitution, and if he fail to do so, the counsellor is bound.

We co-operate in injustice by command when by whatever means we induce another to do an injury in our name and on our behalf. It does not matter whether one of the parties is in a position of superiority with respect to the other or not, nor by what means he induces the other to perform the injurious action, whether by threats, or promises, or commands, or requests; it is sufficient if by any means he induces the other to do his unjust will. Henry II made himself guilty of the blood of St Thomas a Becket by complaining that none who ate his bread would avenge the insults offered him. Mere approval, however, of injustice which has already been done does not render him who approves liable to make restitution.

One who by command induces another to commit an injury is bound in the first place to make reparation for the injury — and for all the damage which was the necessary consequence. In his default the instrument of his injustice is bound to make restitution. The one who gave the command is not bound to compensate his agent for loss or damage which he suffers in executing the will of his principal, unless compulsion or other unjust means were used to procure his co-operation. Nor is he bound to make restitution for damage which his agent did in excess of the instructions given, Furthermore, if before the command is executed he recalls it and the recall is notified to the agent, he will not be responsible for what the agent may do on his own authority; he will be responsible, however, if by any chance the intimation that the command is recalled does not reach the agent.

One who co-operates in injustice by giving his consent or vote that the unjust action should be done is bound to make reparation if his consent was the moral cause of the injustice, And so members of legislative bodies who agree together to pass an unjust law are jointly and severally bound to make reparation for all the harm that the law does. Jurymen, too, whose vote is necessary for an unjust verdict are all responsible for the injustice if they give the verdict. Sometimes, however, when injury is inflicted by the unjust votes of many, the obligation of making restitution will depend on the manner of voting. If all acted conjointly, giving their votes in a body, each and all will be responsible for the harm done; if, however, the voting took place successively, those who voted first and whose votes were necessary and sufficient for passing the unjust measure will indeed be bound to make restitution; but those who voted subsequently, and whose votes were not required to make the measure law, may be excused from the obligation of making reparation except in the case of conspiracy, though they, too, sin against justice. Those who give an unjust vote when it is the only means of preventing a greater evil do not do wrong, and are not bound to make restitution. When one of two evils is necessary, we may lawfully choose the less.

Whoever by provocation or ridicule, or by praise or flattery, causes another to commit an injury, or is the cause why reparation is not made for injustice committed, is himself bound to make restitution in the same way as one who is the cause of injustice by counsel.

n. 5.

One may be a partner in the infliction of injuries in various ways. He who helps another to perform an unjust action is a partner in injustice in the strict sense. One, however, who receives stolen goods or affords protection to a wrongdoer, and so encourages him in committing injustice, is also a partner in his sin. A receiver of stolen goods is obviously bound to restore them to their owner, and if by holding himself out as ready to receive them, or by affording protection to the thief, he is the cause of injustice being committed, he will be responsible for that too. To what extent the partner in injustice is bound to make restitution will depend on circumstances. He will be responsible for the whole damage inflicted if it could not have been inflicted without his help, or if the partners conspired together to commit injustice. Otherwise it will be sufficient to make reparation for such part of the damage as each respectively caused, in the estimation of a prudent person.

When treating of charity we saw that it was never lawful to co-operate formally in another’s sin, but that according to the principle of a double effect it is sometimes allowed to co-operate materially in the sin of another.

This doctrine may be applied to the matter before us, and so though it is never lawful to help another to do what is always and intrinsically wrong, as to kill an innocent person, yet in other cases it is not sinful to co-operate materially with the unjust action of another. A servant who is threatened with instant death unless she gives up a key to a robber, or shows where her master’s money is kept, would act heroically if she died rather than betray her trust; she would not commit sin if she preferred her own life to her master’s property.

n. 6.

On account of one’s office, or in virtue of a special contract, there is sometimes a special obligation to prevent injury being done to others, and if the obligation be not fulfilled, there is negative co-operation in the injury inflicted. Apart from such special office or contract we are bound in charity to prevent injury to others as far as we can, but not in justice. This negative co-operation may be committed by concealment of injustice which has been done, as when a servant conceals thefts committed against his master’s property which has been entrusted to his care. It may be committed by silence, as when a policeman accepts hush money to say nothing about a robbery. It may also be committed if one whose duty it is to protect another’s rights or property neglects that duty and allows them to be injured. On account of defence of an unjust act which has already been done there will not arise an obligation to make restitution, unless such defence was the cause why restitution was not made for the crime defended. All approbation and defence of wrongdoing is nevertheless sinful. One who culpably neglects to prevent his animals from doing harm to his neighbour is bound to make restitution.

Sometimes these negative co-operators are excused from performing their strict duty on account of the very serious inconvenience to which it would subject them, and which they are not presumed to have obliged themselves to undergo. In such cases they will be excused from making restitution for injuries which they did not prevent.

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

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

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

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

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

Vol. I, Bk. VI, Pt. VII, Div. III, Ch. V, Section II. How Much is to be Restored

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ Encyclopedia of Laws, s.v. Bankruptcy.

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

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.

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

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

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

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, Pt. II, Q. II, Art. 3. The Subjective Par…, Restitution · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Roots of Restitution · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Restitution for Cooperation in Injustice · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Circumstances of Restitution · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Causes Excusing From Restitution · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Some Special Cases of Restitution · Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Lawful Occupation · Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Occult Compensation

Physical or moral incapacity to make restitution will be a valid excuse as long as it lasts. If a man has no means, or if he cannot make restitution without reducing himself to beggary, it will be sufficient if he have the wish and intention to restore when he is able to do so. Sometimes it may be possible for one who has stolen a large sum which he cannot at once repay to lay by a little at a time and thus by degrees save the amount required. If this can reasonably be done, it will be of obligation. It would be unreasonable to expect a man to make restitution when it could not be done without costing a great deal more than the object restored was worth, or when restitution of a sum of money would lead to loss of reputation, position, and future prospects. If in such cases means exist for making secret restitution, they should of course be adopted.

When a man becomes bankrupt all his property, with the exception of the tools of his trade and the necessary wearing apparel and bedding for himself, wife, and children, to the value of £20, will vest in the official receiver and trustee.

These officials will also be able to claim for the benefit of the creditors future acquisitions of property until the bankrupt has obtained his discharge. The question arises whether after a bankrupt has obtained an absolute discharge he is still liable in conscience to pay any residue that remains of his debts, or whether he is free in conscience as he is in law. There can scarcely be a doubt that the civil authority can release a bankrupt from all future liability if it choose to do so. Especially in trading communities it may be for the public good that an honest but unfortunate trader should be able to begin again, without being weighted with a heavy load of past debts. If the law releases a bankrupt debtor from all future liability, the rate of interest will soon accommodate itself to the circumstance. So that it is merely a question of fact as to what is the effect of any particular bankruptcy law. In most countries, as in America, it seems that the law only grants the bankrupt legal exemption from future molestation on the part of his creditors; it does not free him from the moral obligation to pay his debts in full if ever he becomes able to do so.

In England, on the other hand, by an absolute discharge “the debt is extinguished,” “‘ the bankrupt becomes a clear man again,” in the words of lawyers who discuss the effect of English bankruptcy law. A composition or scheme of arrangement with one’s creditors has the same effect as an absolute discharge when it has been approved by the Court.

…and 3 more passages — all of them are listed on the topic page.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 23 passages

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. II, Art. I, § IV, Point I, State of the Question, Diverse Systems

n. 225.

III. Diverse systems. Seven are enumerated, namely: absolute Tutiorism, mitigated Tutiorism, Probabiliorism, Equiprobabilism, Probabilism, Laxism, and the System of Compensation.

Absolute Tutiorism states: It is not licit for me to follow an opinion favoring liberty unless this is certain to me; or: The law obliges me unless I am certain that it does not exist.

Mitigated Tutiorism teaches: It is not licit for me to follow an opinion favoring liberty unless this is most probable to me; or: The law obliges me unless I hold it as most probable that the law does not exist.

Probabiliorism states: It is not licit for me to follow an opinion favoring liberty unless this is more probable to me; or: The law obliges me unless I hold it as more probable that the law does not exist.

Equiprobabilism professes: In doubt about the making of a law, it is licit for me to follow an opinion favoring liberty, provided this is equally or almost equally probable to me as the opposite opinion favoring the law. But in strict doubt about the cessation or fulfillment of a law, the law is to be observed.

Probabilism contends: It is licit for me to follow an opinion favoring liberty, provided this is truly probable to me, and this even if the contrary opinion is certainly more probable to me; or: The law does not oblige me provided I hold it as truly probable that it does not exist, and this even if I hold it as more probable that it does exist. And these things hold even if the law certainly existed, provided it has probably ceased or has been fulfilled.

Laxism admits the use even of a thinly probable opinion.

The System of Compensation teaches that in doubts the safer thing is to be followed unless a relatively grave inconvenience excuses.¹

Absolute Tutiorism,² mitigated Tutiorism, and Laxism³ are commonly rejected; Probabiliorism, Equiprobabilism, Probabilism, and the System of Compensation are sustained. We admit Equiprobabilism, which system indeed we now undertake to prove and to vindicate from objections.

¹ Thus Laloux, De actibus humanis; Potton, De theoria probabilitatis; Boisdron, Theorie et systemes des probabilites; Prummer, Manuale Theol. Mor., t. I, n. 351; McDonald, The Principles of Moral Science, p. 254. The system of Cardinal d'Annibale deserves special mention; in his Summula Theologiae moralis (I, nn. 262 and 264), relying only on the principle of possession, he gives his vote, with respect to doubt about the existence of a law, rather to Probabilism; and with respect to doubt about the cessation or fulfillment of a law, to Equiprobabilism. That system could be called the System of Possession, or Possessionism.

² Alexander VIII struck down the thesis: "It is not licit to follow an opinion, or among probable opinions the most probable one."

³ Innocent XI condemned this proposition, the third: "Generally, while, relying on probability either intrinsic or extrinsic, however slight, provided one does not go beyond the limits of probability, we do something, we always act prudently."

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

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.

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 III. On Causes Excusing the Taking Away of Another's Thing

n. 1033.

II. Hidden compensation consists in this: that the creditor, without the debtor's knowledge, procures for himself from the debtor's goods that to which he has a right. It is just and licit, provided the due conditions are observed. It is required:

That there be a strict right, and that it be liquid or exigible.
That there be a certain right. If it is doubtful, the condition of the possessor is better. Yet some judge that compensation has place when the doubt regards not the fact, for example injury to reputation, which is supposed to be certain, but the right, namely, in the hypothesis posited, the right to compensation through goods of fortune, so that, for example, someone certainly defamed could compensate himself with money for reputation not repaired (cf. St. Alphonsus, III, 544, with the editor's note).

He who has secretly compensated himself with a doubtful right is held to restore the thing if he began to possess in doubtful faith; otherwise, if he proceeded in good faith and cannot overcome the doubt (n. 992).

That the debt cannot conveniently be obtained by another way. Namely, one secretly compensating himself per se, although only venially, "sins against common justice, while he usurps for himself judgment of his own thing, with the order of law passed over" (St. Thomas, II-II, q. 66, a. 5, ad 3). He sins only venially because, provided the thing is owed, public order is not gravely disturbed.

Moreover, insofar as it can be done, a thing of the same species as the thing owed is to be taken; likewise, insofar as it can be done, care should be taken that another, for example a servant, not come under suspicion of theft; finally one must beware lest the debtor pay again, for example by remitting the debt, as it were (St. Alphonsus, III, 521; Homo Apostolicus, tr. 10, n. 21).

Corollary. Hidden compensation is often illicit, namely because the required conditions are lacking. Hence the confessor should be very prudent in permitting it; wherefore proposition 37 condemned by Innocent XI is to be noted: "Male and female domestic servants can secretly steal from their masters to compensate their labor, which they judge greater than the wage which they receive."¹ This proposition was deservedly condemned, both because sometimes they so judge too lightly, and because a wage per se less than the work rendered can per accidens be just (n. 917), and because, even if the wage is less than just, there is not always a just cause for obtaining what is owed to oneself by this reason, but per se a greater wage ought first to be asked (St. Alphonsus, III, 522-524).

¹ Denzinger-Bannwart, n. 1187.

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. — 53 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 …, Occult Compensation

n. 1927.

Compensation.-Compensation is of two kinds, strict or legal and wide or extra-legal.

(a) In a strict sense, compensation is counterclaim, or the comparison of the debts of two persons to one another with a view to the cancellation of one or of both debts. This method of extinction of debt is allowed by law in order to reduce the amount and expenses of litigation. It is known as recoupment or offset when a defendant brings a cross-action against a plaintiff for non-fulfillment by the latter of some part of the contract in controversy, and as set-off when the defendant introduces the debt owed to him over against the debts sued for by the plaintiff. Counterclaim is just when no injury is done to one party (e.g., it would be unjust to keep the horse of Titus which you had borrowed, simply because Titus owed you a debt equal to the value of the horse, for the horse might be worth more to Titus); it is legal when recognized by the law (cfr. 1797, 1798).

(b) In a wide sense, compensation is the summary recovery by a creditor of the thing or the debt owed him by the debtor. The recovery is summary in the sense that the creditor does not go to law, or proceed according to law, but takes from the debtor either openly (open compensation) or secretly (occult compensation) what is owed.

n. 1928.

Lawfulness of Occult Compensation

Lawfulness of Occult Compensation.—(a) Ordinarily, or per se, it is not lawful; for it contains such evils as disregard of due process of law, scandal, infamy, public disturbance, the menace that the common good will be harmed by frequent abuse, the danger that the debtor will suffer loss through a second payment of the same debt, etc. Innocent XI condemned the proposition that domestic servants may practise occult compensation when they decide that their services are worth more than the salary they are receiving (Denzinger, n. 1187). (b) Exceptionally, or per accidens, it is lawful; for under certain conditions it offends neither public nor private welfare and it is necessary for the vindication of a right. Just as the natural law gives authority to occupy the goods of another in case of extreme need, so does it justify occult compensation in the special cases just mentioned.

n. 1929.

Unlawful Occult Compensation and Restitution

Unlawful Occult Compensation and Restitution.—Does unlawful occult compensation oblige one to restitution?

(a) If the compensation is not only unlawful but also injurious (e.g., a servant takes what is not due her under the pretext of compensation), it is not rightly called compensation, but is really theft, and restitution is due. (b) If the compensation is unlawful but not injurious (e.g., a servant takes what is really due her, but she could have obtained it by asking for it), there is no theft or duty of restitution, since the property of another was not stolen.

n. 1930.

Conditions Required by Commutative Justice for Occult Compensation

Conditions Required by Commutative Justice for Occult Compensation.—(a) Before the Compensation.—There must be a strict right to the thing taken; for, if there is no such right, one takes what belongs to another against his will, or commits theft. Hence, if an employer has freely promised to make a gift to his servant and then fails to keep the promise, the servant has no right to take what was promised, since it is owed from liberality or fidelity or gratitude, but not from commutative justice. The same applies to a non-necessary heir who has been left nothing in a will, since he had no strict right. It is also unjust to take secret compensation for a debt that has not yet fallen due.

(b) During the Compensation.—No wrong must be done to the debtor (e.g., by taking more than is due, by taking an article which the debtor needs for earning his living) or to third parties (e.g., by taking goods deposited by them with the debtor). If possible, compensation should be made from goods of the same nature and kind as those that were taken or damaged, for the debtor should not be forced to part with things he wishes to retain and which are not necessary for the creditor’s satisfaction.

(c) After the Compensation.—One must avoid injury to the debtor (e.g., the keeping of a payment which is now not owed by him and which one can refuse or return to him) and to third parties (e.g., the casting of suspicion on a servant in order to divert attention from one’s act of occult compensation).

n. 1931.

Must the strictness of the right be morally certain, or, in other words, must reasonable doubt of fact and of law be excluded?

(a) As to doubt of fact, it must be excluded; for in such doubt the presumption is with the possessor, or at least it is certainly wrong to perform an act that will probably be injurious to another person (see 713). Moreover, everyone can see that the public good would suffer greatly, if occult compensation were permissible when the existence of a debt is uncertain. Hence, if it is only probable that one sold goods to another person or that another person has not yet paid for services received by him, occult compensation must be avoided.

(b) As to pure doubt of law, the question is controverted. Some think that it also must be excluded, since the possessor should not be deprived of possession unless it is certain that there is a right to do this. Others think that occult compensation may be used in spite of a mere doubt of law, if the doubt concerns only the mode of making the compensation, or if the probability in favor of the creditor is so strong that a judge could conscientiously decide for him against the possessor. Examples of doubts of law here are three cases that are in dispute among authors, namely, whether one may take money as compensation for defamation that will not be repaired by restoration of fame (see 1802, 1803), whether one may deny reparation for defamation when one has been defamed by the other party and has not received restitution, whether one has rights to a legacy of which one is deprived on account of a mere informality in the document. In these cases the right is held by some authorities to be probable, but the decision in a particular instance should be made only on the advice of a learned and conscientious person, since the matter is very complicated and there is great danger of self-deception.

n. 1932.

Some Cases in Which There Is a Strict Right to Compensation

Some Cases in Which There Is a Strict Right to Compensation.—(a) Employees (i.e., servants, workingmen, artisans, officials, etc.) have a strict right when they are injured by the employer’s non-observance of the contract (e.g., the stipulated salary is not paid; unjust subtractions are made from the salary, as by fines for the inadvertent and infrequent breaking of tools, etc., about which there was no agreement in the contract; labors not contracted for are exacted), or when an unjust contract is imposed on them (e.g., they are induced by force or threats to accept less than a living wage; advantage is taken of their grave necessity to wring from them agreement to such a wage).

(b) Merchants have a strict right when a debt which they cannot collect is certainly owed them, or when they sold below the minimum just price, because forced to this unjustly, or because they made a mistake in charging. They may compensate themselves by diminishing weights or measurements.

(c) One has a right to compensation who has been condemned under a sentence manifestly unjust, because the law is certainly unjust or because the judge clearly gave a wrong decision in a matter of fact (e.g., he erroneously presumed that a debt had been contracted, or that it had not been paid).

n. 1933.

Some Cases in Which There Is No Right to Compensation

Some Cases in Which There Is No Right to Compensation.—(a) Employees have no right to compensation for subtractions from their salary, if they culpably injure the property of their employer, or if they agreed to such subtractions; nor for the smallness of their wage, if they freely accepted it (e.g., if they regarded it as a favor to be employed, and the employer did not really need them), or if it is made up for by presents, board or lodging, opportunity for good tips, etc.; nor for unusual labors, if they hired themselves out for general service (unless they are asked to perform work of an entirely unforeseen kind, such as a very perilous mission), or if they undertook these labors freely without the knowledge or wish (express or tacit) of the employer.

(b) Merchants have no right to compensation for goods sold by them below the minimum just price, if they freely agreed to sell at that price.

n. 1934.

Children and Employees and Compensation

Children and Employees and Compensation.—Some special questions arise for consideration in case of parents who employ their own children, and of employers who are forced to underpay on account of the dishonesty of their help.

(a) Children who work for their parents and who are entitled to a salary, by agreement or from the law, have the same rights as other employees, but injustice against them would be less frequent. In this country the father has a right to the services and wages of his unemancipated child, but the child becomes independent of the father when it reaches the age of majority or when the father relinquishes his right.

(b) Employees who are underpaid because the employer is cheated by his help have the right to occult compensation, if they are forced to take less than a living wage (1932); otherwise this is not permissible, unless it be certain that the employer is not unwilling that the honest employees receive more than their pay. In practice, on account of the great peril of injustice, it is advisable that such workers seek better pay through their organizations or else look for employment elsewhere.

n. 1935.

Conditions Required by Legal Justice for Occult Compensation

Conditions Required by Legal Justice for Occult Compensation.—(a) Occult compensation must not be used if payment can easily be obtained through suit at law or agreement; for the order of law and the public welfare require that one should not have recourse to the extraordinary means of occult compensation if ordinary means will suffice and not cause notable difficulties. But as a rule it seems this obliges only under venial sin, since ordinarily the departure from normal procedure in this matter is not seriously detrimental to public morals or order; and it does not impose a duty of restitution, since he who takes only what belongs to him does not offend against commutative justice. Indeed, if it is certain that other means will be futile (e.g., because one has not sufficient evidence to win or because the decision would he biased) or harmful (e.g., because great dissensions will be aroused, or heavy expenses incurred in litigation), occult compensation is not even venially unlawful.

(b) Occult compensation, according to law, should not be used by a bailee, for he has a lien for his services and proper expenditures in caring for the object bailed, but not for any other debt the bailor may owe him (Bolles, Handy Law Book). This is obligatory at least for the external forum.

n. 1936.

Some Conditions Required by Charity for Occult Compensation (see 1165, 1236, 1483).—(a) Charity towards the Debtor.—The creditor should see, when possible, that the debtor suffers no loss by occasion of the compensation. Hence, in order to spare the debtor the evils of a bad conscience in reference to the debt or of a second payment of the debt, the creditor should, if possible, inform the debtor that the debt is cancelled or that payment is not expected.

(b) Charity towards Third Parties.-The creditor should, if possible, prevent any trouble or loss to others that might be occasioned by the compensation, such as suspicion of theft that might fall on servants.

…and 13 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.

n. 966.

How does the obligation of contracts cease? - The obligation of contracts ceases:

Through payment, or through the furnishing of any thing owed, or also through the execution of the object promised or otherwise owed. C. I. 1236 ff.; C. G. 1134 ff.; C. H. 1157 ff.; C. B. 362 ff., 372 ff. Payment is to be made by him who can alienate. C. I. 1240; C. G. 1238; and from C. A. 1421, although he is incapable of administering his own things. If there are several debts, the debtor can impute the payment to whichever he wishes. C. I. 1255 ff.; C. G. 1253 ff.; C. A. 1415 ff. - Cf. Vinnius on Inst. 1. 3. t. 30. nn. 1, 4. - But payment does not hold if the creditor is incapable of receiving, unless it is proved that the payment made yielded to his utility. C. I. 1143; C. H. 1163; C. G. 1241; C. A. 2414. But if the creditor unjustly refuses to receive payment, the debtor is freed by making a deposit of the thing owed in the modes prescribed by law. C. I. 1259 ff. "Nor does it matter who pays, whether he himself who owes, or another for him; for he is freed even when another pays, whether the payment is made with the debtor knowing, or ignorant, or unwilling." Inst. 1. 3. t. 30; C. I. 1238; C. G. 1236.

C. B. 244, 267, 268; C. A. 1423.

Through novation, or a new obligation, which is not presumed, but must be expressly established. It has place in three ways: 1. Through substitution of a new debt for an old debt, which is thus extinguished; for example, I promised to give you ten casks of wine each year; now I agree with you that I am no longer bound to give wine, but a thousand francs: the obligation of giving wine is then extinguished. Likewise, money is owed from purchase; it is agreed that it be retained as though from a loan for consumption. The effect of novation of this kind is that, once the prior obligation has been removed, its inconveniences also are taken away, and the advantages of the later obligation are received. 2. When a new debtor is substituted for the old, who is therefore freed by the creditor; namely if the debtor substitutes another debtor for himself, whom his creditor accepts, or if another freely promises that he will pay in place of the debtor. 3. When a new creditor is substituted for the old, toward whom the debtor no longer has any obligation. C. I. 1267 ff.; C. G. 1271 ff.; C. H. 1203 ff.; C. B. 364, 398 ff.; C. A. 1345, 1375 ff.; L. 1 Dig. de Novationibus; Inst. 1. 3. t. 30. § 3; Vinn. in this place.
Through condonation, or an act by which a creditor from full liberty remits a debt to his debtor. For each one can yield his own right in all those things which do not regard the public good, provided he was not incapable of contracting. It is had by presumption of law if the creditor has returned the security to his debtor, or ordered it to be returned; but by no means if the creditor has returned the pledge, or freed the surety. An acceptilation is called a condonation of this sort, because through it the creditor has as though accepted that which is owed to him. Hence it is said in Law that acceptilation is an imaginary payment. "But just as what is owed is rightly paid in part, so acceptilation can be made in part of the debt." Inst. 1. 3. t. 30. § 1. - C. I. 1279 ff.; C. G. 1282 ff.; C. H. 1187 ff.; C. B. 397.
Through compensation, or fictive and reciprocal payment, which has place by the law itself when persons are mutually debtors toward one another. C. I. 1285 ff.; C. G. 1289 ff.; C. H. 1195 ff.; C. A. 1433 ff. - From C. B. 388, a declaration of one party to the other party is needed. - This legal compensation is not had between that which is owed only naturally and that which is also owed civilly; likewise this compensation is not had as to those things which are subject to rescission or restitution in full. Cf. 1471.
Through confusion, which has place when the obligation of the debtor and the right of the creditor are joined together in the same person; for example, if the creditor becomes the heir of his debtor, or the debtor of his creditor, or the same person becomes heir of the creditor and debtor at the same time. C. I. 1296 ff.; C. G. 1300 ff.; C. H. 1192 ff.; C. A. 1445; L. Sicut acceptatio Dig. de Solutionibus etc. Cf. C. B. 889.
Through destruction or loss of the certain and determined thing owed, which at times frees the debtor from obligation, as in merely gratuitous contracts, and also in others where the fault of the debtor does not enter. But at times it does not free him, for example if it happened by fraud of the debtor, or he was in culpable delay, or he took the case upon himself. Certain and determined, for example such a horse; but something else must be said if the thing was uncertain and indeterminate; for genus and species do not perish. Therefore, if you promised a horse in general, not such a horse, not one of your horses, the obligation remains, even if all your horses perish; hence you must buy and hand over another. C. I. 1298 ff.; C. G. 1302 ff.; C. H. 1182 ff.; C. B. 275, 280; L. Si ex legati Dig. de Verbor. obligat.
Through rescission, or rescindability, which has place when a contract, consisting of essential conditions, is dissoluble because of some defects. That contract holds until it is rescinded. C. I. 1300 ff.; C. G. 1304 ff.; C. H. 1290 ff.; C. B. 346 ff.
Through prescription, concerning which it has been spoken above. C. I. 1236; C. G. 1234; C. H. 1930.
Through contrary will. For "those obligations which are contracted by consent are dissolved by contrary will. For, if Titius and Seius have agreed between themselves that Seius would have the Tusculan estate bought for one hundred gold pieces; then, the matter not yet having followed, that is, neither the price having been paid nor the estate having been handed over, it has pleased them that they withdraw from that purchase and sale, they are mutually freed." Inst. 1. 3. t. 30. § 4. Cf. n. 964.

Vol. II, On the Seventh and Tenth P…, IX. On Deposit

n. 1076.

What are the obligations of the depositary? - 1. The depositary cannot, per se, use the deposited thing. The reason is that the thing is given to him for custody, not its use conceded. Use of the thing can be judged permitted only if it can reasonably be judged that the owner of the thing consents to it, e.g., if by use the thing is exposed to no danger, nor made worse; if someone has deposited money not closed nor sealed. Wherefore, if the owner is unwilling, the owner must be compensated for the use made of the thing, if from this the depositary has become richer. C. I. 1846, 1852; C. G. 1930, 1936; C. H. 1767, 1770; C. A. 958, 961, 965; C. B. 698; C. L. 1437, 1438; Lugo d. 33. n. 4. - But he who truly uses another's thing at his own risk, even if he knows the owner is unwilling, acquires for himself what he gains thence by his own industry. By his own industry, since a thing consumable by use does not bear fruit by that use, but is destroyed. By his own industry, for fruits produced by the thing itself must be returned with the thing itself. C. I. 1852; C. G. 1936; C. A. 958, 961. But C. B. 698 and C. H. 1770 say that if the depositary uses deposited money, interest is owed from the day of use. L. 748.

The depositary must take that care of the deposited thing which he takes for his own things. L. 32 h.t.; L. 1 § 5 de Oblig. et action.; C. I. 1343; C. G. 1927; C. H. 1766; C. A. 961, 964; C. B. 690. - This obligation is stricter if the depositary offered himself to receive the deposit; if he stipulated a fee for the deposit; if the deposit was made for the convenience of the depositary alone; if an agreement intervened that he is liable for any fault. C. I. 1844; C. G. 1928; C. H. 1182, 1766; C. L. 1435, 1451. If the deposit is made for the depositor's favor alone, the depositary is bound only to furnish against fraud and grave fault, which is equated with fraud. L. Quod Nerva Dig. Depositi. If the deposit is also made for the favor of the depositary, as when he receives a stipend or fee, the depositary is liable even for slight fault, though not very slight fault. L. Depositum Dig. Depositi § 8 coll. § ult. Inst. de Locat. et cond. Except sailors, innkeepers, and stable-keepers, who are liable even for very slight fault, but not for fortuitous event or greater force. L. Et ita Dig. Nautae etc. Yet Laymann, de Deposito n. 1, with others, judges not improbably that this, namely that they are liable for very slight fault, is not valid in the forum of conscience before the sentence of the judge. - St. Thomas 2. 2. q. 62. a. 6; L. 750. According to C. I. 1867; C. G. 1953; C. H. 1784; C. A. 1316; C. B. 701, innkeepers and stable-keepers as depositaries are liable for theft or damage inflicted, if the theft was perpetrated or the damage inflicted by servants or persons placed over the direction of the inn, or by outsiders who frequent it. The depositary is held by no obligation if anything happens by prevailing greater force, unless he had already previously delayed returning the thing requested by the depositor. C. I. 1845, 1868; C. G. 1929, 1954; C. H. 1182, 1784; C. L. 1435, 1436; C. A. 964, 965. Exception for the internal forum, if the thing would have perished equally and at the same time and danger with the owner, because then that delay was not the cause of the loss. According to C. A. l.c., the depositary is not liable for a fortuitous event, even if the more precious deposited thing could have been saved by damage to his own thing.
He must return the deposit as soon as it is sought, if this can be done. L. Depositum § 22 Dig. Depositi. The reason is that the deposited thing is for the convenience of the depositor alone; and accordingly there can per se be no cause for retaining the deposit. Per se; for accidentally it sometimes must not be returned, as if it is demanded for one's own or another's harm. L. Depositum § 39 Dig. Depositi. But the thing is to be restored whenever the thing is asked back, even if perhaps a day was established in the contract for restitution. But before the established day, the depositary regularly cannot restore the thing except from a just cause. C. I. 1860; C. G. 1994; C. A. 462, 963; C. H. 1766, 1775, 1776; C. B. 695, 696; C. L. 1448. If a deposit has been made by a person who can contract obligation with a person who cannot contract it, the depositor has only a vindicatory action for the deposited thing if it exists with the depositary, or otherwise an action of restitution up to the concurrence of the quantity which has been turned to the utility of the depositary. C. I. 1842; C. G. 1926; C. L. 1433. 4. The depositary must restore the deposited thing to him who deposited it. If nevertheless he understands the thing to be stolen and knows its owner, he must warn this owner, after establishing a suitable space of time in which he may himself demand it back; but if this owner has been negligent, the depositary is freed from every obligation by restoring the deposit to him from whom he received it. Therefore the thing is regularly to be restored to him who deposited it, even to a thief, if the owner, having been summoned, has failed. L. 31 h.t.; C. I. 1853, 1854; C. G. 1937, 1938; C. H. 1771; C. L. 1441, 1442. Cf. here 1343, 1351. When the depositor has died, the thing is to be restored to the heir. If there are several heirs and the thing is divisible, his part is to be returned to each; but if the thing is indivisible, all must agree as to the mode of receiving the thing. L. 1 § Si pecunia 36 h.t.; C. I. 1855; C. G. 1939. When the depositary has died, the thing is to be restored by the heir. But if the heir in good faith has sold the thing, he is bound to return only the price, or his action to it, if not yet paid. C. I. 1851. 5. Restitution must be made by him with whom the deposited thing was, and in that place in which the thing is found without bad fraud of the depositary. L. 12 § 1 h.t.; C. I. 1859; C. H. 1774. According to C. G. 1943, in that place in which it was deposited. According to C. B. 697, in that place in which it was to be guarded. 6. The depositary, as also the borrower, cannot compensate to themselves debts from deposit, from commodatum, and precarium. Thus according to positive law. L. ult. C. de Commodato; L. Si quis C. Depositi; C. Bona fides de Deposito; C. I. 1289; C. G. 1293, 1885; C. H. 1200, 1747. Nevertheless, if someone retained the thing under this title, he would indeed sin against legal justice, but by no means against commutative justice. By natural law, "it is probable," says Lessius 1. 2. c. 27. n. 16, "that compensation has place in the forum of conscience when no other reason is available for obtaining the thing owed to oneself." But if the depositary finds that the deposited thing is his own, he is held by no further obligation. C. I. 1861; C. G. 1946; L. 753.

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. 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. 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.

n. 1473.

What are the conditions required for the lawfulness of occult compensation? The conditions commonly required that occult compensation be made justly and licitly are: 1. That the spiritual and temporal damage of the debtor be prevented; namely, lest he remain in an erroneous conscience and in sin, lest he again restore what he now does not owe; by admonishing him of the cessation of the obligation, by feigning, e.g., condonation, etc. Yet one is not held to this from justice, but only from charity, which does not oblige with grave inconvenience. 2. That the grave damage of another be prevented, for instance if suspicion of theft threatens another. To this also one is not held from justice, but only from charity, since he is the cause of that damage not per se, but only per accidens. 3. That the thing which is accepted in compensation from the debtor is not another's; because otherwise you would not exact the debt from the debtor, but from another who owes nothing. 4.

That you cannot recover the debt otherwise, by asking it from the debtor, or before a judge, or certainly not except with great difficulty, expenses, lawsuits, annoyances, etc. The reason is that one cannot regularly by his own authority despoil the possessor, since this belongs to the judge, or magistrate, having public authority. Besides, the public good requires that no one declare right for himself where recourse to a judge is easy. St. Thomas, 2. 2, q. 66, a. 5 ad 3.; C. B. 227.; C. L. 2535 seqq. 5. That compensation be made, as much as can be done, in a thing of the same species as that which was owed. For otherwise the debtor, without his consent, is altogether unjustly compelled to exchange his own thing.

But if it cannot be made in a thing of the same species, it can indeed be made in another, but with lesser detriment to the debtor, as much as can be done. - 6. That the debt be certain; for in doubt the condition of the possessor is better, and therefore here he would be unjustly despoiled of his own thing. - Lugo d. 16, s. 5.; Ithur. Cas. 3, n. 14, 15.; L. 521.; St. Thomas, 2. 2, q. 66, a. 5 ad 3.; E. M.

n. 1474.

Whether compensation can be made by retaining a thing handed over to the creditor in deposit or on loan? Many deny it, relying on the positive dispositions of the law. C. I. 1289.; C. G. 1293.; C. H. 1200, 1747.; C. A. 1440.; L. ult. § 1. C. de Compensationibus; C. Bona fides de Deposito. "Yet others more probably teach that those laws proceed only in the external forum, in which it is presumed that the debt could have been recovered by another way, and the faith of deposit preserved.... The reason is that the fact that the thing has been deposited with you does not make it more its owner's than before, nor does it oblige you to defend it against the true owner, who wishes to vindicate it, or against him who has a true right to receiving it, if that right is certain to you: indeed you ought to give it, if damage threatens you from another source. Therefore similarly you will be able to take it for yourself, if you have true dominion of it, or a true right against its owner for recovering your debt." Lugo d. 16, n. 89.; Gousset in a. 1293.; C. B. 273, 274.

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.

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

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 3 passages

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Section I. On Restitution in General · Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Chapter I [II]. On the Roots of Restitution · Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Section II. On Restitution in Species

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Section I. On Restitution in General

One must treat: 1. of the obligation of restitution; 2. of the roots of restitution; 3. of the circumstances of restitution; 4. of the causes excusing from restitution.

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Chapter I [II]. On the Roots of Restitution

n. 633.

- The roots of restitution are said to be the causes from which the obligation of restoring arises. But they are taken from a threefold head, namely: 1. from the acceptance of another's thing; 2. from unjust damage; 3. from unjust cooperation; which nevertheless, as regards the matter, falls back into one or the other of the preceding.

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Section II. On Restitution in Species

74. On Mutuum · 80. Restitution from Unjust Acceptance and from a Thing Received · 81. Restitution from Profit without Cause

Here one must treat of restitution on account of damage brought upon one's neighbor in the goods: 1. of the soul; 2. of the body; 3. of fortune, in certain cases.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 128 passages (filed under the subtopics)

74. On Mutuum

Marius the usurer dies, who acquired many riches by illicit and unjust usuries. Two of his sons, Marinus and Marianus, succeed as heirs; one of whom indeed consents that restitution of the usuries be made, but according to the proportional part of the inheritance which he received; the other, however, wishes to restore nothing. Must Marinus himself alone restore the whole, when Marianus is unwilling to restore?

Q. What as to the case?

R. The heirs of the usurer are indeed held to restore the usuries according to the resources of the inheritance, if the usurer himself does not restore. The reason is that the heirs, taken collectively, represent the deceased in the goods received by him. But are the heirs of the usurer, and the heirs of any other debtor, held in solidum, so that, one failing, the other must pay the whole debt? Many affirm, because individuals represent the person of the testator and succeed to his rights and burdens. Many also, on the contrary, deny with sufficient probability, because individuals represent the person of the deceased only partially, and therefore are held only partially. But except: 1. Unless all the heirs cooperated in the delict of the deceased. 2. Unless the usurious thing itself, or whatever must be restored, exists with one. For then the heir who has it must return it whole to its owner. Yet he has recourse against the other co-heirs, that he may have equal compensation, lest he alone sustain the burdens of the inheritance. 3. Unless the goods of the inheritance were mortgaged. For a mortgage is not divided, but is in any part of the mortgaged goods. Wherefore it confers on the creditor the faculty of prosecuting his right wherever he can; and consequently, one heir failing, the other is held for the whole. But this one again has the right of demanding equal compensation from the co-heirs. Scav. l. 2. n. 437.

But sons, heirs of usurers, are held to restore things illicitly acquired by their fathers from usuries to the certain owners, if they are certain; but if they are uncertain, restitution must be made to pious causes or to the poor. Collectan. S. C. de P. F. n. 2111.

80. Restitution from Unjust Acceptance and from a Thing Received

Gervasius, supreme Minister of the interior order in a kingdom, knows well that from his weak and negligent manner of acting many damages have come to private persons on account of public robbers and highwaymen, and likewise many damages have come to the Society itself and to several civil Communities, on account of the unjust administration of public affairs, and especially on account of unjust taxes, by which certain particular Communities were overburdened.

Nevertheless he himself thinks that in truth he is not bound to any restitution, because, he says, with my conscience as witness, I have killed no one, and I have stolen nothing, nor have I unjustly received anything from anyone, or even from the Government.

Q. 1. Whence does the obligation of restitution arise? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1319 seqq. — To the 2nd. Gervasius, on account of grave negligence in preventing delicts, in punishing crimes, in watching and prescribing the due ordinances to be observed, certainly was the cause why private persons and Communities suffered grave damages. Wherefore he is certainly held to restitution. For he is guilty of neglected office and of a violated contract, by which he implicitly obligated himself to prevent damages to his subjects. As to damage inflicted on private persons, restitution must be made to those private persons themselves. As to damage inflicted on Communities, restitution must be made to the Communities themselves.

Gervasius is likewise guilty by reason of unjust cooperation toward injurious acceptance. For someone is held to restitution not only by reason of the alien thing which he accepted, but also by reason of the injurious acceptance. And therefore whoever is the cause of an unjust acceptance is held to restitution. Now Gervasius was the cause of that acceptance, both directly, by the iniquitous and unjust administration of public affairs, and indirectly, by not impeding it when he could and ought to have done so. And thus St. Thomas, 2.2. q. 62. a. 7, says: To restitution “he is held who does not oppose when he is bound to oppose; as princes, who are bound to keep justice in the land, if through their defect robbers increase, 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.”

Gervasius is besides guilty of rapine, which to the malice of theft adds the malice of violence and of personal injury. S. Thom. 2.2. q. 66. a. 5.9. Rapine indeed is had by coercion brought to bear for paying unjust taxes, and for carrying out other unjust laws, e.g., usurping ecclesiastical goods, etc. Appositely the same Angelic Doctor, in the cited place, a. 8: “It must be said that rapine imports a certain violence and coercion, by which, contrary to justice, that which is his own is taken away from someone. But in the society of men no one has coercion except through public power; and therefore whoever by violence takes something away from another, if he is a private person, not using public power, acts illicitly and commits rapine, as is plain in robbers. But to princes public power is committed for this, that they be guardians of justice; and therefore it is not lawful for them to use violence and coercion except according to the tenor of justice: and this either by fighting against enemies, or by punishing citizens who are evildoers; and that which is taken away by such violence does not have the character of rapine, since it is not contrary to justice. But if, contrary to justice, some persons through public power violently take away the things of others, they act illicitly, and commit rapine, and are held to restitution.... If Princes exact from subjects that which is owed them according to justice for preserving the common good, even if violence is employed, it is not rapine. But if Princes unduly extort something by violence, it is rapine, just as also robbery.... Whence they are held to restitution, just as robbers are; and they sin so much more gravely than robbers, as they act more dangerously and more commonly against public justice, whose guardians they have been placed.” — I. M. 1320, 1323.

Caietanus, the servant of a priest, steals from his master one hundred lire, enclosed in a certain schedule, upon which was written: alms for 50 Masses, which in the months of November and December must be celebrated for the deceased Lord Eligius. Caietanus hid the aforesaid sum in a certain secret place. Then, seeking it, he no longer found it.

Q. 1. Must restitution be made from unjust acceptance? — 2. Must Caietanus restore the one hundred lire to his master, or is it enough that he have 50 Masses celebrated by some priest in the aforesaid months, with an alms of 100 lire given?

R. To the 1st. Affirmatively. “The very acceptance of another’s thing can stand in three ways. For sometimes it is injurious, namely existing against the will of him who is the owner of the thing, as is plain in theft and rapine; and then he is held to restitution, not only by reason of the thing, but also by reason of the injurious action, even if the thing does not remain with him. For just as he who strikes someone is held to recompense the injury to the one who suffered it, although nothing remains with him, so also he who steals or plunders is held to recompense the damage inflicted, even if he has nothing from it; and further he ought to be punished for the injury inflicted. — In another way someone accepts the thing of another for his own utility, without injury, namely with the will of him whose thing it is, as is plain in loans for consumption; and then he who has accepted is held to restitution of that which he accepted, not only by reason of the thing, but also by reason of the acceptance, even if he has lost the thing; for he is held to recompense him who did a favor, which will not be done if by this he incurs damage. — In a third way someone accepts the thing of another without injury, not for his own utility, as is plain in deposits, and therefore he who has so accepted is held in nothing by reason of the acceptance; indeed, rather, by accepting he renders service. But he is held by reason of the thing. And on account of this, if the thing is taken away from him without his fault, he is not held to restitution; but it would be otherwise if through his great fault he lost the thing deposited.” S. Th. 2.2. q. 62. a. 6; I. M. 1327.

To the 2nd. From what was said in the response to the 1st, it is plain that Caietanus is altogether held to restitution, although he no longer has the one hundred stolen lire, but has lost them, or another has stolen them. “And therefore,” the Angelic Doctor proceeds in the cited place, ad 1, “although he who took the thing does not have what he accepted, but it has been transferred to another, because nevertheless the other is deprived of his thing, he is held to restitution to him, both he who took the thing by reason of the injurious action, and he who has the thing by reason of the thing itself.” But it is not enough that he himself have the aforesaid Masses celebrated, but he must restore the aforesaid stipend of the Masses to his master; otherwise there would not be restitution. “Through restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things. But an equalizing of things of this sort could not be made unless, to him who has less than what is his own, that which is lacking were supplied. And for this supplying to be made it is necessary that restitution be made to him from whom it was accepted.” S. Th. 2.2. q. 62. a. 5.

A certain Bonze, prepared to bid farewell to the errors of ethnic superstition and to give his name to the holy Catholic Church, asks that it be permitted to him to retain the things which he had previously received in the ethnic office which he exercised, and the things which he had acquired in the exercise of the medical art.

R. He is not to be disturbed, provided certain injustice has not intervened from elsewhere. And indeed no doubt is to be raised as to the emoluments of the medical art, since they hold the place of wages. Likewise, the things which the Bonze sought for himself from the priestly office among the pagans, although they flowed from a superstitious source, nevertheless seem to have come to him legitimately, as things which were proper to the pagan people, and by its consent attributed to its priests in place of an honorarium.” Provided certain injustice has not intervened from elsewhere; for justice, proceeding from the law of nature itself, obtains force among all peoples everywhere. Therefore if there are things which the Bonze knows certainly that he unjustly received, whether in the exercise of the medical art or of the priestly office, it is necessary that he restore them to the owner, or to his heir; or, if both are uncertain, they are to be distributed to the poor. S. O. 14 Jan. 1846; Collectan. S. C. de P. F. n. 2117.

Hesperus, having Elisa, a daughter of marriageable age, whom he is unable to dower, furtively stole from Heraclitus one thousand lire, with which he was easily able to join her in marriage with Gensericus. After some years from the marriage, Gensericus learns that the dowry brought to him by his wife had all been taken from Heraclitus by thefts.

Q. 1. Must restitution always be made from another’s thing? — 2. What must be done in the Case?

R. To the 1st. Affirmatively. “By reason of the thing he is held to restore it so long as he has it with him; because that which he has beyond that which is his own must be taken from him and given to him to whom it is lacking, according to the form of commutative justice.” S. Th. 2.2. q. 62. a. 6; I. M. 1331 seqq.

To the 2nd. “If the spouse still preserves the dowry distinguishable from other monies, he must restore it, unless it has been prescribed in good faith, for every thing cries out to its owner; and the spouse must be numbered among those who, thinking they were marrying a rich woman, married a poor one. But if it was in good faith mixed by him with his own goods, similar in quality and greater in quantity, so that it cannot be separated, he is held to nothing; because by Common Law the dowry is considered morally consumed, Gloss on L. 78 ff. de Solut. Nor should you object: this man is held to that in which he has become richer; for since the dowry was given to him for sustaining the burdens of marriage, and he perceived no profit for himself from it, he has been made richer in nothing. Sporer, Croix. There are nevertheless some who wish that, standing in the law of equity, something to be restored ought to be cared for by the spouses. Certainly Hesperus the father would always be held for the theft, so long as he was able; for he dowered his daughter from the goods of another. Liguori l. 3. n. 612.” Scav. l. 2. n. 751.

But in truth not only from the law of equity, but also from strict justice, the spouse is held to restitution, even if that stolen money has already been mixed by him with his own money in a greater quantity. For although by the more recent Law the whole heap is his, nevertheless he has the obligation of rendering the owner of the stolen money unharmed, by reason of his thing, which he equivalently has. I. M. 907. Nor truly can anything else be drawn from the cited place of St. Alphonsus.

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.

Vol. V, Pt. I, Ch. III, Section 3: The Duty of Restitution Arising From Calumny and Detraction · Vol. V, Pt. I, Ch. V, Sect. 10, A. Restitution in General · Vol. V, Pt. I, Ch. V, Sect. 10, A. Restitution in General, Article 1: The Duty of Restoring Property Belonging to Others

Q. What must be answered to the wife?

…and 88 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 17 passages

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

n. 459.

Chapter III. On Reparation of an Injured Right, or On Restitution.

When a strict right has been violated, justice demands that it be repaired: this is done by restitution, and therefore we must now treat of it.

Preliminary notes: on the notion and obligation of restitution.

I. On the roots of restitution:

On unjust damaging:
- insofar as it is unjust;
- insofar as it is an efficacious cause of damage;
- insofar as it is set down by a culpable action.
On possession of another's thing:
- on a possessor in good faith;
- on a possessor in bad faith;
- on a possessor in doubtful faith.
On unjust cooperation:
- who are bound to restore?
- in what order?

II. On the mode of restoring:

In general:
- to whom?
- in what place?
- at what time?
- how must restitution be made?
As regards certain goods in particular:
- as regards goods of the body;
- as regards goods of the soul;
- on account of the impeded attainment of a good;
- as regards defrauded taxes.

III. On causes excusing from restitution:

for a time;
forever.

By the name of restitution the older Theologians understood only the rendering back of another's thing; but modern theologians, by extension, designate by this name any reparation whatever of an injured right.

n. 460.

Preliminary Notes on the Notion and Obligation of Restitution.

Restitution is an act of justice by which an injury is repaired to equality, whether by compensation of damage unjustly inflicted, or by the rendering back of another's thing. - Therefore it differs from satisfaction, which is the reparation of injured honor and directly touches the person; and also from the payment of a debt, by which a certain obligation is extinguished, although no injury has been inflicted.

¹ St. Thomas, 2-2, q. 62; Soto, lib. IV, q. 6-7; Molina, disp. 714-716; Sayrus, lib. X, Tr. 1; Lugo, disp. VIII, n. 17-25; Lessius, lib. I, cap. VII, dub. 4; Billuart, diss. VIII, art. 1-2; St. Alphonsus, n. 547; Carriere, III, n. 1021-1031; Baller. P., n. 332-335; Noldin, n. 422-424; Bourdaloue, Sermon pour le 22e Dim. apres la Pentecote, on Restitution.

n. 461.

Principle: There is a precept of justice, of itself obliging under grave sin, to restore, in reality or in desire, what is owed to the neighbor from strict right.

It is said: (a) of itself obliging under grave sin: for just as injury of itself is forbidden under grave sin, so the reparation of the same of itself is commanded under grave sin; but if the injury is light, reparation is owed only under light sin.

(b) In reality or in desire; namely in reality, as often as this is possible; but if for the time it is morally impossible, at least the intention or desire of restoring as soon as possible must be conceived in the mind.

It is proved. (A) By reason. (a) Justice certainly forbids that an injury inflicted on someone be continued; but he who does not restore a thing taken away, or does not repair damage inflicted, when he can furnish this, by that very fact does not cease to cause injury; for, by unjustly detaining another's thing, he prevents the neighbor from the use of his own thing, and thus does injury to him; likewise, by not compensating damage, he as it were renews it, and thus does not cease to violate the right of another. - (b) No sin can be remitted without sincere contrition and a firm purpose; but he lacks genuine contrition who wishes to retain another's good unjustly possessed, - nor does he have a firm purpose of not sinning who pertinaciously refuses to repair damage unjustly inflicted by himself.

(B) Deservedly, therefore, Scripture commands and commends restitution. (a) Under the Old Law it was said: "If anyone shall have stolen an ox or a sheep, and shall have killed or sold it, he shall restore five oxen for one ox, and four sheep for one sheep... If he does not have that which he may render for the theft, he himself shall be sold."² Hence remission of sins was granted to him who restored the stolen thing;¹ and those who were held as saints, such as Tobias, were altogether solicitous about making restitution: "See lest perhaps it be stolen: return it to its owners, because it is not lawful for us either to eat anything from theft, or to touch it."² - (b) Under the New Law, Zacchaeus, the publican converted to Christ, is reported to have said: "If I have defrauded anyone of anything, I restore fourfold";³ and those who unjustly retain the salary of workers are most gravely reproved:⁴ "Behold the wages of the laborers who have reaped your fields, which has been defrauded by you, cries out, and their cry has entered into the ears of the Lord of Sabaoth."

² Exod. XXII, 1-3. Here however it is said that more must be restored than what was unjustly taken away, by way of penalty, by which the Jews might be more efficaciously deterred from theft.

¹ Ezech., XXXIII, 14-15.

² Tob., II, 21.

³ Luke, XIX, 8. There fourfold restitution is promised, not indeed from justice, but, as is said, unto the abundance of right.

⁴ James, V, 4.

Hence in Canon Law this axiom uttered by St. Augustine has been received:⁵ "The sin is not remitted unless what was taken away is restored."

⁵ Behold the words of St. Augustine (Ep. 153, to Macedonius, n. 20, in Migne, P. L. XXXIII, 662): "For if another's thing, on account of which the sin was committed, when it can be restored, is not restored, penance is not done, but feigned: but if it is truly done, the sin will not be remitted unless what was taken away is restored; but, as I said, when it can be restored." These words were inserted in the Decree of Gratian, cap. Si res aliena, I, caus. XIV, quaest. 6; and from the last words rule 4 of law in 6° was formed.

n. 462.

Corollaries. (A) The obligation of restoring obliges under mortal sin when the matter itself is grave, according to the principles explained above concerning theft (n. 436); hence he who restores only in part, yet so that the part which he retains does not attain grave matter, does not sin gravely by detaining it; but, even in this case, restitution is to be advised under venial sin.

n. 463.

(B) The precept of restitution is primarily negative, insofar as it forbids that another's thing be unjustly detained; and secondarily affirmative, insofar as it commands another's thing to be rendered back, precisely because it is prohibited to detain it. Under this head restitution must morally be made as soon as possible; otherwise the owner is unjustly deprived of the use of his own thing. Hence he who cannot here and now restore is bound immediately at least to have the intention of restoring, and at the same time to take care that he satisfy his obligation as soon as possible. Likewise if he cannot restore the whole, let him immediately restore a part, if this can be done.

n. 464.

(C) He who voluntarily omits restitution sins during the whole time of the omission, not only insofar as he positively conceives the purpose of not restoring, but also insofar as he voluntarily omits to satisfy his obligation. Yet he who keeps another's thing for a long time commits one sin in number, provided he always perseveres in the same purpose of not restoring. But if he explicitly or implicitly revokes this purpose, he sins as often as he renews that interrupted purpose.

Nevertheless the confessor should not too molestingly question the penitent about the number of internal sins committed in this matter; but he should only inquire whether he continuously persevered in the same will of not restoring, and for how much time another's thing was detained, so that thus he may be able morally to infer how great the number of sins is. The reason is that for the most part the faithful do not think about this multiplication of internal sins.

n. 465.

(D) He is certainly unworthy of absolution who, without an excusing reason, does not wish to restore another's thing of great price, when he is conscious of the obligation incumbent upon him: for he lacks genuine contrition. The same must be said of him who, without cause, defers restitution, - or who, burdened by debt, makes useless expenses and does not pay debts. - But if the penitent is in good faith, and at the same time it is foreseen that an admonition will not be profitable (which nevertheless should not easily be presumed), the admonition can be omitted, according to what was said above in the Treatise on Penance, n. 395-397.

n. 557.

II. On the Place Where Restitution Must Be Made.

General principle. Restitution must be made there where the rights of the creditor are preserved, yet without a graver inconvenience of the debtor. Hence: -

A possessor in good faith is bound to restore the thing in the place where it is when he begins to know that the thing is not his own; nor is he bound to undergo the expenses or dangers of transmission; but it suffices that he make known to the absent owner that he is prepared to return the thing.

The reason is that the possessor in good faith is not bound to suffer detriment from another's thing. - Hence if the thing perishes while it is being transmitted, the possessor is not obliged to compensate the damage.

n. 558.

1. A possessor in bad faith or an unjust damager must restore, at his own expense, in the place where the owner would have possessed the thing if it had not been taken away or destroyed, after however the expenses which the owner would have made in carrying the thing away have been deducted (by natural law). - For, as a damager, he is bound to repair the whole damage which the owner suffered.

(a) Yet if the expenses for conveying the thing to the owner would greatly surpass the value of the thing itself, it would suffice to transmit the price of the thing to the owner, unless the thing was most dear to the owner. - Today however, because of the ease of transport (facilite de transports), for the most part the thing itself can be sent back with small expenses.

n. 559.

(b) If the thing to be restored perishes by chance or by the fault of a third person before it reaches the owner, the unjust possessor must compensate the damage, but has recourse against him to whom the thing had been committed; for a debtor from delict must bear every damage even fortuitous, from what was said above, n. 506. - The case is excepted in which the owner or judge determined the messenger to whom the thing was to be entrusted: for then as soon as it has been handed over to the messenger, it becomes the creditor's, and, if it perishes, it perishes for him.

Wherefore many probably judge that he is immune from a new restitution who handed over the money to be restored to a confessor, with whom it perished by chance or by the fault of a third person; for the confessor can be held as a messenger chosen from the presumed consent of the creditor, since often restitution cannot be made safely by another way without danger of infamy, - and moreover the confessor from office is a trustworthy messenger. - Hence, in practice, he who restores in this way, and thinks that he has already satisfied his duty, is not to be compelled to a new restitution.

n. 560.

III. On the Time at Which Restitution Must Be Made.

Principle. Restitution must be made as soon as morally possible, unless a reasonable cause excuses, so that all damages following from culpable delay must be repaired. - For the owner has the right of possessing his own thing and of enjoying it; but he is deprived of both rights if restitution is too long deferred without cause.

(a) Therefore he sins gravely who without cause notably defers restitution in grave matter; and also he who, being able to restore the whole, wishes to restore only by parts; the sin will be venial if the delay is brief and does not inflict grave damage upon the creditor.

(b) If from culpable delay the owner suffers damages which could be foreseen, the unjust possessor, as a damager, must compensate them. Now damages commonly occurring in similar circumstances can be foreseen, but not extraordinary ones, unless the debtor who is in delay had been sufficiently warned.

(c) Those sin gravely who, without sufficient reason, defer restitution until death, not only because of the delay of restitution, but also because it is to be feared lest the heirs omit restitution. - Therefore the confessor must prudently exhort penitents that they themselves restore before death, insofar as this can be done; or at least employ efficacious means that restitution be made, e.g., by giving the money to a trustworthy person, who may diligently pay all debts.

n. 561.

IV. On the Mode of Restitution.

General principle. Restitution must be made in that mode by which violated justice is repaired to equality. - This is clear from the very notion of justice and of restitution.

It is explained: (a) Restitution generally can be made secretly and while the owner is unaware, unless scandal is to be repaired, so that in this way the reputation and honor of the one restoring may be spared.

(b) It can be made under the appearance of donation; or through labor spontaneously and gratuitously undertaken for the utility of the owner, or through thrift, or other means of this kind; especially if the question concerns those who can scarcely restore otherwise. - If it is made by way of donation, and the creditor, moved by this cause, repays another gift of the same value to the debtor, one must proceed in another way.

(c) The debtor, or damager, can restore either through himself or through another trustworthy person. Often the confessor is chosen by the penitent as a middle person; the confessor can accept this function, provided he acts prudently, lest he break the seal of confession; - e.g., he can restore through another priest as intermediary, by sending the money from another city, etc.; it is also expedient that the penitent be made certain that restitution has truly been made, so that every suspicion may be avoided.

n. 562.

1. Corollaries. (A) If someone, forgetful of a debt, gratuitously gives something to the creditor, does he satisfy the obligation of restoring? - It is controverted:

(a) Some deny it; for the donation was made from the motive of benefiting, not from the motive of restoring. (b) Others more probably affirm it; for the donor, in this case, virtually and implicitly wishes to restore, because, since he is well disposed, he has the implicit will of restoring; so that he would have had this will explicitly, if he had been conscious of his obligation. Hence in practice restitution is not to be urged in this case. - Indeed, if restitution is to be made to the poor, alms made after the obligation has been contracted can be held as restitution.

n. 563.

(B) In what way must restitution be made to the State or Municipality?

(a) If some mode is determined by law, this must be observed, insofar as it can be done.

(b) Otherwise, restitution can be made to the administrators of the State or Municipality, - or by destroying titles of debt issued by the State or Municipality (rentes sur l'Etat, timbres, obligations des villes), but not those which are issued by a private society. Some add that restitution can be made to those who have been unjustly despoiled of their goods by the civil power; but in this case, the injustice must be manifest; - or to the poor, because the obligation is incumbent upon political power of assisting them; nevertheless this does not seem probable; for generally the State satisfies this obligation in other ways, nor does it belong to private persons to dispose of public revenues by private authority.

n. 585.

2. On Restitution of Honor.

(A) Principle: He who unjustly injured the honor owed to someone is bound to restore honor to him and the damages efficaciously and culpably following from this. - For we have a strict right to honor as to reputation; and therefore the violation of this right must be repaired.

This is certain when the insult was public in some way, e.g., when someone, before two or three persons, was struck with blows; and it is commonly admitted also when the insult was hidden; for even then the right to honor is violated, from what was said above, n. 398.

n. 586.

(B) The mode of repairing honor. That signification of honor is required and suffices which, all circumstances being considered, and the gravity of the injury, and also the customs of places, is suitable, in the judgment of a prudent man, for repairing the damage inflicted. Hence: -

(a) When a superior offends a subject, rarely is he bound to ask pardon from the inferior, but for the most part a friendly greeting, or another sign of benevolence, suffices.

(b) If the offense happens among equals, - either signs of honor greater than usual are to be shown to the injured person, if the injury is not grave; or, if it is graver, pardon is to be sought.

n. 605.

II. On Damage of the Creditor or of Another Person, Insofar as It Excuses from Restitution.

If from immediate restitution grave damage, spiritual or temporal, threatens the creditor himself or another person, the debtor can, and sometimes from charity must, defer restitution. For then the creditor is not judged reasonably unwilling, and moreover generally from charity we are bound to impede the damage of the neighbor, when this can conveniently be done.¹

¹ Hence, if delay inflicts grave damage upon the debtor, because, e.g., the creditor is going to prosecute the debtor before judges as guilty of injustice, he can, without injuring charity, restore immediately.

Thus restitution can be deferred if it is foreseen that the owner is going to abuse his thing for indulging drunkenness or lust, or for wounding or killing some innocent person. But for this it is required that the delay be foreseen as efficacious: for if in no way it can impede the evil effect, e.g., because the creditor will use other means for sinning or harming others, there is now no reason for deferring restitution.

Koch–Preuss

Antony Koch; adapted and edited by Arthur Preuss — 216 passages

Vol. V, Pt. I, Ch. III, Section 3: The Duty of Restitution Arising From Calumny and Detraction

Detraction, calumny, and other like sins violate justice, and therefore involve the duty of making restitution, as far as possible, for the damage inflicted, and of seeking reconciliation with the person injured.

An insult or contumely wilfully committed against a fellowman calls for an apology (deprecatio). However, a formal apology is, as a rule, demanded only of subjects; among equals an act of extraordinary benevolence will serve the same purpose; on the part of superiors in their relation to inferiors, a special sign of good will or amiability will suffice.¹

¹ St. Alphonsus, Theol. Mor., l. III, n. 986–987 (ed. Gaudé, II, 373).—St. Augustine, Epist., 211 (al. 109), n. 14: "Whichever nun has injured another by abuse or cursing or even by charging her with a crime, let her remember to take care as quickly as possible, by making satisfaction, of what she has done, and let the one who was injured forgive without dispute. But if they have injured each other, they ought mutually to forgive the debts owed to each other, on account of your prayers, which you certainly ought to have holier in proportion as you have them more frequently. Better is she who, although often tempted by anger, nevertheless hastens to obtain forgiveness from the one whom she acknowledges that she has wronged, than she who is slower to become angry and is more reluctantly inclined to ask forgiveness. She who does not wish to forgive her sister should not hope to receive the effect of prayer; but she who never wishes to ask forgiveness, or does not ask it from the heart, is in the monastery without cause, even if she is not cast out from it. Therefore, for your part, refrain from harsher words; but if they have issued from your mouth, do not be ashamed to bring forth remedies from the same mouth from which the wounds were made. When, however, the necessity of discipline compels you to speak harsh words in restraining those younger than you, even if you feel that in those very words you have exceeded due measure, it is not required of you that you ask forgiveness from them, lest, while excessive humility is observed toward those who ought to be subject, the authority to govern be broken; nevertheless, forgiveness must be sought from the Lord of all, who knows with how much benevolence you love even those whom perhaps you rebuke more than is just." (Migne, P. L., XXXII, 964).

If the insult was committed in actions, it should not merely be apologized for, but restitution must be made for the material damage inflicted.

The duty of making restitution ceases when the victim has obtained satisfaction either by a judicial sentence or by self-help, e. g., by returning the insult.

A calumny can be repaired by an unconditional retraction of the falsehood uttered (retractatio). This must be made orally or in writing in a way which men of good judgment deem sufficient. Public calumnies,—such as have appeared in newspapers, for instance,—must be publicly retracted by him who started them and in the same manner (verbo vel scripto) in which they were circulated. This obligation admits of no exception, and the claim of inability does not avail against it. The calumniator must ascribe all injurious consequences of his act to himself and, consequently, is bound to make restitution even when his own honor is at stake, for "melior est conditio innocentis quam nocentis," that is to say, the right of the innocent goes before that of the guilty. Besides, to retract a calumny, is not only a confession of the wrong committed, but likewise a proof that the sinner recognizes his fault and is willing to correct it.

The duty of retracting a calumny rests also upon those who have helped to spread it. In the event of their failure the obligation devolves upon the originator of the calumny. The latter is bound also to make good all the temporal or material damage arising from his sin, even that which results from the fact that the calumniated person can regain the confidence of his fellowmen only for a considerable time after the retraction of the calumny.

A person guilty of calumny may be excused from the duty of retraction for one or other of several reasons: (a) the unimportance of the matter involved; (b) the voluntary renouncement on the part of the victim of his right to a retraction;—this reason will hold, if the victim is in a position freely to dispose of his honor and good name, as, for example, members of a religious community are not;—(c) if the victim has in the meantime regained his good name by other means, as, for example, by a judicial sentence; (d) if, in consequence of the length of time that has elapsed, the matter has fallen into oblivion or those influenced by the evil report can no longer be reached.

In case of detraction restitution may be made indirectly by excusing the faults of the victim as much as possible and emphasizing his good qualities, in order to enable him to regain the good reputation necessary for his social position, and by accusing oneself of having made unwarranted or unconsidered statements. In regard to the material damage done, the same rules apply as in the case of calumny. Though a retraction cannot always be strictly demanded, it will as a rule go far towards effecting a reconciliation.

The duty of restoring the good name of an injured neighbor is personal; that of making restitution for material damage caused by calumny or detraction falls also upon the heirs.² To protect one's good name, as has been explained in a previous volume, is a duty, especially when a whole class of persons is involved. When this is not the case, a man may go far in humbling himself for Christ's sake,³ whose noble example encourages us not only to forgive our enemies, but also to suffer detraction and calumny in silence.⁴

² Gury, Comp. Theol. Mor., I, n. 473.

³ 1 Cor. VI, 7; IX, 13–15; 1 Pet. IV, 14–16.

⁴ Matth. XVIII, 21–35; XXVI, 62 sq.; XXVII, 12; John XVIII, 19–21; cfr. Ps. CVIII, 14; Prov. XII, 16; Matth. V, 44; XXIII, 34.—Seneca, Epist., 94, 28: "Iniuriarum remedium est oblivio."

"There are those who deem it weakness to forgive insults," says a modern writer; "if this view were correct, God would be the weakest Being in Heaven and on earth, for no one forgives as much as He."

The saintly Bishop Sailer said: "I would rather allow myself to be innocently calumniated for ten years, than spend one day in defending my honor."

READINGS.—St. Alphonsus, Theol. Mor., l. III, n. 986 sq. (ed. Gaudé, II, 373 sqq.).—J. Kutschker, Die Lehre vom Schadenersatz, Olmütz 1851, pp. 521 sqq.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 672 sqq., 680.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 245 sqq.

Vol. V, Pt. I, Ch. V, Sect. 10, A. Restitution in General

DEFINITION.—Restitution is reparation for an injury done to another. To restore, says St. Thomas, is “nothing else than to reinstate a person in the possession or dominion of his property, and thus in restitution we consider the equality of justice attending the payment of one thing for another, and this belongs to commutative justice.”¹ Restitution is designed to undo the consequences flowing from sins committed against one’s fellowmen. Moreover, satisfaction must be made to God for the offence committed against Him in injuring His creatures. Hence, over and above the duty of making restitution for the property loss involved, there exists the obligation of atoning for the sin committed, by internal acts of repentance and satisfaction, i. e., the offender must be sorry for and confess his sin.

¹ Summa Theol., 2a 2ae, qu. 62, art. 1: “To restore seems to be nothing other than to establish someone again in the possession or dominion of his property; and thus in restitution the equality of justice is observed according to the recompense of thing for thing, which belongs to commutative justice.”—Cfr. A. Lehmkuhl, S. J., Theol. Mor., Vol. I, 11th ed., n. 1127 sqq.

NECESSITY OF RESTITUTION.—To make restitution of ill-gotten goods, either in re or in voto, is, generally speaking, a grave obligation if the matter is important (materia gravis). It is so grave an obligation, in fact, that without it the sin cannot be forgiven. “Peccatum non dimittitur, nisi restituatur ablatum,” or “Non datur venia, nisi restituantur ablata,” are two fundamental maxims in Moral Theology.

The duty of making restitution is not only enforced by divine and civil law,² but likewise based on the moral law of nature. For he who does not restore to his neighbor the property which he has unjustly taken away from him, inflicts upon him additional injury by continuing to withhold from him what is his and hindering him in the use thereof. Strictly speaking, therefore, the duty of making restitution arises solely from a violation of commutative justice, not of charity or equity, or of legal or distributive justice as such.³

² Ex. XX, 15; XXII, 1–16; Ez. XXXIII, 14–16; Numb. V, 7; Matt. V, 23 sqq.; Mark X, 19; Luke XII, 59; 1 Cor. VI, 8; Philm. 18 sq.—Reg. Iur. in VI° Bonif. VIII, n. 4.—St. Ambrose, De Offic., l. III, c.

³ (n. 21): “Do not the laws themselves teach us? They command that those things which have been taken from someone with injury to his person, or with increase of the thing itself, be restored, so that they may deter a thief from taking either by punishments or bring him back by a fine.” (Migne, P. L., XVI, 151).—St. Augustine, Epist., CLIII (al. 54), c. 6, n. 20: “If another’s property, on account of 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 forgiven unless what was taken is restored—but, as I said, when it can be restored.” (P. L., XXXIII, 662).—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 2: “Since preserving justice is necessary for salvation, it follows that restoring to someone what was unjustly taken from him is necessary for salvation.”—Duns Scotus, Comment. in Sent., l. IV, d. 15, qu. 2, n. 29: “Just as one who keeps an adulteress is not capable of penance, but is a mocker, and if such a man comes to penance, he adds sin to sin, so one who detains another’s property in will and deed, while he is such, is not capable of any part of penance.”—Benzinger, Hebr. Archäologie, 2nd ed., pp. 294 sq.

³ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 605: “There is no obligation of restitution except on account of a violation of strict right or commutative justice, but not on account of the right of uprightness simply. The reason is that restitution brings it about that the thing owed to one’s neighbor equals his right that was unjustly violated. But this cannot be done when a violation of the right of uprightness is under discussion. For if someone violates the right of his superior or of his neighbor, denying obedience to the former and the consolations of charity to the latter, that violation cannot strictly be repaired, because a new act of obedience or charity would not repair the violated right, but would satisfy only the precept, which always binds, of obeying one’s superior and relieving one’s neighbor in distress.”—Cfr. St. Alphonsus, Theol. Mor., l. III, n. 547; J. Rickaby, Moral Philosophy, p. 107.

He who is able to make restitution for an injustice which he has committed is bound in justice to do so. If he is unable, he is dispensed from the fulfilment of this duty only as long as the inability lasts.

If a man is able to make restitution, he is bound to do so; if he is unable, the duty of restitution is in abeyance while the inability continues. But no one may consider himself dispensed from this duty until he has at least made a sincere effort to comply with it. Moreover he should at all times remember his liability and cherish a firm purpose to make restitution as soon as an opportunity presents itself. This is what theologians style making restitution in voto, but it holds good only while the external act (restitutio in re) is either physically or morally impossible. Whenever commutative justice has been violated and the matter is grave, absolution should be withheld until the penitent has either made restitution, or sincerely promised to do so at the first opportunity. Absolution should be refused if the penitent has repeatedly broken his promise. Those who, though burdened with debts, live in a manner which will probably make it impossible for them ever to satisfy their creditors, are unfit for absolution. The same is true of those who, in a similar condition, refuse to deny themselves luxuries or leave restitution to their heirs, although they are able to make it themselves.

THE “ROOTS” OF RESTITUTION.—Restitution may be due for one of two reasons: (a) because one holds something that belongs to another (acceptio sive retentio rei alienae), or (b) because one has inflicted unjust damage or loss (iniusta damnificatio). These are called by moralists the “roots” (radices) of restitution.

Sinful co-operation in acts against commutative justice (cooperatio iniusta) is frequently enumerated as a third root of restitution, but as it may be subsumed either under the first (acceptio sive retentio) or under the second division (iniusta damnificatio), there is no need of treating it separately.⁴

⁴ Gury, Comp. Theol. Mor., I, n. 609: “The roots of restitution are the causes from which the obligation of restoring arises. They are taken from three headings, namely: 1. From the taking of another’s property; 2. From unjust damage; 3. From unjust co-operation.—Co-operation does indeed fall either under taking or under unjust damage, but for a clearer distinction of matters so intricate we have judged it better to consider it separately.”

READINGS.—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 6 (Rickaby, Aquinas Ethicus, II, 30 sqq.).—Th. Meyer, S. J., Inst. Iuris Nat., Vol. II, pp. 208 sqq.—H. Noldin, S. J., Summa Theol. Mor., Vol. II, pp. 458 sqq.—T. Slater, S. J., A Manual of Mor. Theol., Vol. I, pp. 398 sqq.—IDEM, in the Catholic Encyclopedia, art. “Restitution,” Vol. XII, pp. 788 sq.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 199 sqq.—J. B. Ferreres, Comp. Theol. Mor., Vol. I, pp. 501 sqq.

Vol. V, Pt. I, Ch. V, Sect. 10, A. Restitution in General, Article 1: The Duty of Restoring Property Belonging to Others

A man may be possessed of the property of another without a just title either through an act of injustice, e. g., fraud, theft, usury, etc., or in good faith, e. g., by purchase, donation, or legacy. In the former case there is a culpa theologica, i. e., a formal violation of strict justice (iustitia commutativa), in the latter there is merely a material injustice. These two forms of unjust possession determine the manner in which restitution must be made.

The general rules for determining the duty of restitution are the following:¹

¹ P. J. Lönartz, Die Restitutionspflicht, pp. 77 sqq., 179 sqq., 266 sqq.—Cfr. Gury, Comp. Theol. Mor., Vol. I, n. 610: “The owner of a thing alone has the right per se to possess it, nor does he lose ownership of the thing into whosesoever hands it may come. Per se is said because any other possessor, even one in good faith, has the right to possess the thing only per accidens and from invincible error. From this principle, moreover, the following four axioms flow of their own accord: 1. The thing cries out for its owner, that is, the owner has a strict right to recover his property wherever he finds it; 2. The thing bears fruit for its owner. The reason for this axiom is that enjoyment is necessarily—” “included perfectly in the idea of ownership; 3. A thing naturally perishes to its owner, for when the object of ownership ceases, ownership itself thereby vanishes. But if it still exists in an equivalent, that equivalent belongs to the owner; 4. No one ought to be enriched from another’s property. Or in other words: The measure of restitution is the quantity of the thing detained. The reason is clear, for only the owner of the thing has the right to receive any fruit from it. But these general principles are modified according to the different condition of the possessor and sometimes according to the varying legislation of places.”—Cfr. Göpfert, Moraltheol., Vol. II, p. 260.

a) “Res clamat domino,” i. e., the rightful owner is entitled to his property, no matter into whose hands it may have fallen. This rule follows necessarily from the nature of property and ownership. In applying it, however, due regard must be paid to prescription, etc.

b) “Res fructificat domino,” i. e., the rightful owner is entitled to the fruits of his property, provided, of course, he has not ceded this right to others.

c) “Res naturaliter perit domino,” i. e., the right of ownership is bound up with the object owned and ceases with that object. If the object has perished, but its value continues, the original owner is entitled to the latter, as, e. g., when a ton of wheat has been sold and the sum received is still in the hands of the seller. If a thing has perished not from natural causes, but through the fault of the possessor, the owner is entitled to restitution.

d) “Nemo ex re alienâ locupletari potest,” i. e., no one has a right to enrich himself with the property of another, for the fruits of that property do not belong to the unlawful possessor, but to the rightful owner.

If the possessor cannot reach the owner, he must make restitution to his heirs.

It is quite a different thing, of course, to be benefitted occasione rei alienae, without injustice to anyone, for instance, by the growth of a community, the construction of a railway, the erection of a factory on or near one’s property, etc.²

² IDEM, ibid., pp. 118 sqq.; Slater, I, 374 sqq.

The fruits of a thing (fructus rei) may be:

α) Fructus naturales, natural, i. e., derived from the thing itself (beneficio naturae) without the co-operation of man, or with but slight co-operation on his part, for example, fruits of trees, wood in a forest, grass on a meadow, milk, wool, etc.; β) Fructus industriales, i. e., fruits of human industry or toil, such as the profits from a sale or purchase, etc.; γ) Fructus mixti, which are partly the result of industry (ex industria) and partly of the natural or artificial fertility of the property (ex re ipsa), for instance, grain, wine, etc.; δ) Fructus civiles, which are derived from an object by means of the civil law, e. g., rent, salary, etc. The latter category may be reduced to the first (fructus naturales).³

³ Gury, I, n. 613: “Fruits of different kinds must be distinguished: 1. Natural fruits, which proceed from the substance of the thing itself without any or with little human labor, such as grasses, etc.; 2. Industrial fruits, which are attributed chiefly to the action of the possessor using the thing; generally, however, fruits are partly natural and partly industrial, such as crops, etc., and are called mixed; 3. Civil fruits, which are not fruits properly so called, but are regarded as such by law, such as annual revenues, the price of leasing, etc.”—Cfr. Noldin, Summa Theol. Mor., II, 391 sqq.; Slater, I, 374 sqq., 401.

One may be in possession of the property of another either in bad faith or in good faith. A possessor malae fidei is one who knows, or has good reason for believing, that the property he holds belongs to another.⁴ Such a one is bound to restore to the rightful owner whatever the latter has been unjustly deprived of, that is to say:

⁴ Gury, Comp. Theol. Mor., Vol. I, n. 622: “A possessor in bad faith is one who knows that the thing which he received or possesses is not his own.”—St. Augustine, De Fide et Operibus, c. VII, n. 10: “In the law of estates, each person is most rightly called a possessor in good faith so long as he is unaware that he possesses another’s property; but when he has learned this and has not withdrawn from another’s possession, he is then regarded as being in bad faith, then he is justly called unjust.” (Migne, P. L., XL, 203).—Cfr. Lehmkuhl, Casus Consc., I, n. 652–655.

Vol. II, Bk. II, Tr. III, Ch. I, Article II: The Notion and Obligation of Restitution · Vol. II, Bk. II, Tractate V: On Justice, Ch. II, Art. I, § 2. On Restitution on Account of Real Injury · Vol. II, Bk. II, Tractate V: On Justice, Chapter III: On Unjust Cooperation · Vol. II, Bk. II, Tractate V: On Justice, Ch. III, § 1. Various Unjust Cooperations · Vol. II, Bk. II, Tractate V: On Justice, Chapter IV: General Circumstances and Excuses of Restitution

a) The stolen property itself, for “res clamat domino.” If the property no longer exists, its value must be restored. If it has deteriorated in value whilst under the control of the unlawful possessor, restitution must be made of the value it had when it was taken from its rightful owner. If its value has increased, it must be restored as it is, with all its fruits, for, “res fructificat domino.” If the stolen property fluctuated in value after the theft, the owner’s loss must be made good, and if he intended to sell it when at its highest value, that value must be restored to him.⁵

⁵ Slater, I, 405.

n. ¶13.

b) All the fruits of the property, natural, industrial, and mixed, must be restored to its owner. But any necessary or useful expenses incurred by the illegitimate possessor for the preservation or improvement of the property, as well as such fruits as may be the result of special efforts on his part, may be deducted.

n. ¶14.

c) The damage suffered by the owner in consequence of being deprived of what belonged to him (damnum emergens) as well as any profits he may have lost (lucrum cessans), must also be restored to him.⁶

⁶ St. Alphonsus, Theol. Mor., l. III, n. 614–625 (ed. Gaudé, II, 94 sqq.); Gury, Comp. Theol. Mor., I, n. 622–627.

n. ¶15.

A difficulty arises if the property has fluctuated in value while in the hands of the unlawful possessor. A change in the value of an object may be either intrinsic or extrinsic. An intrinsic change occurs, for instance, in a colt that grows up to be a horse, or in a horse that becomes useless in consequence of old age. An extrinsic change of value may be brought about through a rise or drop in the market. As regards intrinsic changes, the unlawful possessor has to make restitution to the owner for any decrease in value which would not have happened had the owner kept his property, as, for example, if a fat ox grows lean or a good horse is overworked. If the value of the object has increased, the unlawful holder must restore the increment together with the object to the rightful owner, but may deduct necessary or useful ex- penses.

n. ¶16.

In regard to a change in value the following general rules apply:

n. ¶17.

a) If the price has risen or fallen, and the thief sold or consumed the stolen property at the time when the lawful owner had intended to sell or consume it, he must restore to the latter the price which the object would have brought at that time. If the price has risen or fallen, and it is certain that the owner would have sold or consumed the property had it been in his possession at the time it fetched the higher price, restitution must be made at the higher price. If the object was one which the lawful owner had not intended to keep, and its price rose and fell, and the unlawful possessor sold or used the object when the price was lowest, he is obliged to make restitution at the lower price only, for in that case the owner suffers no loss and he himself was not enriched by the fluctuation in price. If the owner would have sold the property in case the illegal possessor had restored it at a time when its price was high, the latter is in duty bound to pay the higher price. If the owner would have consumed the object at the time when the price was low, and the thief, or his abettor, sold or consumed it at the time when the price was high, he must make restitution at the higher price, for “res fructificat domino.” However, some moralists are satisfied with demanding that restitution be made at the lower price, for the reason that the thief, having consumed the stolen property, has not become enriched and the owner has suffered no additional loss. When there is doubt whether the owner would have kept his property until he could have gotten a higher price or would have sold it at a lower price, the thief is bound to make restitution pro rata dubii, i. e., in accordance with the degree of doubt. But since, in praxi, all the circumstances of a case do not usually become known, it will be sufficient as a rule to make restitution of the stolen object at the price which it would have fetched at the time when it was stolen.⁷

⁷ Göpfert, Moraltheol., Vol. II, pp. 265 sqq.; Slater, I, 406 sqq.

n. ¶18.

A possessor bonae fidei is he who is honestly, though erroneously, convinced that an object rightfully belongs to him, e. g., because he has acquired title to it in a legitimate way, for instance, by purchase, inheritance, etc. As soon as he discovers that the property is not his, such a one is bound to restore it to the rightful owner, or at least give the owner notice to get it, at his own expense.⁸

⁸ Gury, Comp. Theol. Mor., I, n. 611: “A possessor in good faith is one who is invincibly ignorant that the thing possessed by him belongs to another, or prudently judges it to be his own, v. g., because he acquired it by a title of itself transferring ownership, such as inheritance, legacy, donation, or purchase. It is supposed, however, that he has not yet acquired the possessed thing by prescription; for otherwise he would no longer be the holder of another’s property, but of his own. As soon as a possessor in good faith learns that the thing possessed by him belongs to another, he is bound to restore it to the owner insofar as it still exists, in whole or in part or in profit. The reason is that unless such a possessor restored the thing or its equivalent, he would retain another’s good against the owner’s reasonable will; for he would violate the owner’s strict right by retaining that to which he has no right, and therefore would now become an unjust holder.”—Cfr. ibid., n. 612–621.—Lehmkuhl, Casus Consc., Vol. I, n. 648–651.

n. ¶19.

a) He must restore, first, the property itself, if, or in as far as, it still exists, for “res clamat domino.” If the property no longer exists, he must restore what he gained by its possession, on the principle that no one has a right to enrich himself at the expense of another.⁹ If the stolen property has been lost, either through or without the possessor’s fault, the latter need not restore its equivalent, because “res naturaliter perit domino” or “casum sentit dominus.” Likewise, in case of doubt whether he has be- come richer through possessing the property, or whether some portion of it is still in existence, the unjust possessor is not obliged to make restitution, for, “in dubio melior est conditio possidentis.”

⁹ Reg. Iur. in VI° Decr. Bonif. VIII, n. 48: “No one ought to be enriched through another’s injury or loss.”

n. ¶20.

b) He must restore, secondly, all the fruits of the stolen property, in so far as they are derived from its nature (fructus naturales) and have not been consumed to satisfy his own needs, for “res fructificat domino.” The fructus industriales belong to the possessor and the fructus mixti must be divided pro rata, but the possessor may deduct expenses and make a reasonable charge for his toil. Unnecessary and accidental expenses give no just claim for compensation. If the civil law grants to the possessor bonae fidei the consumed fruits, he may take advantage of this privilege.

…and 176 more passages — all of them are listed on the topic page.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 41 passages (filed under the subtopics)

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.

Vol. II, Bk. II, Tractate V: On Justice, Ch. II, Art. I, § 2. On Restitution on Account of Real Injury

n. 649.

Principle. Since restitution supposes injustice, restitution is not therefore to be made because the guilty person has been made richer, but because the other has less on account of his own right having been injured by the guilty person. On account of his own right having been injured, I say, or because he has less than he ought to have.

But here it is useful to consider separately the two roots of restitution, so that we may successively ask and attempt to determine what possessors of another's thing, and again what unjust damnifiers, are bound to restore.

n. 650.

I. - On Restitution on Account of Possession of Another's Thing

I. Principle. All things return to this: that possessors, unless they are excused by a just privilege of positive law, should satisfy the real rights of others (i. e. rights in the thing), execute the promises of agreements, and, if they have been unjust, repair damaging injuries.

Therefore the possession of another's thing raises questions which directly regard the thing, the fruits, and the damages of him who has the right; indirectly, the execution of agreements to which possession of another's thing has given place.
Possession is distinguished into possession in good faith, i. e. here, with an uninjured conscience concerning the dominion acquired, and possession in bad faith, i. e. dominion acquired against conscience.

Theologians moreover distinguish detention in good faith, which can be joined with possession in doubtful faith and can suffice for prescription in conscience. For a possessor can have doubted from the beginning or only afterward; the doubt can be about a derivative title: whether he bought from the owner, or about an original title: whether the thing has been abandoned or lost by the owner, so that he can occupy it or acquire it by usucapion as belonging to no one; he can detain the thing from the beginning or afterward with a conditional intention and one of inquiry and of restoring it to the owner if he is found, or with an absolute intention. Good faith, in the widest usage, denotes concord between intention and conscience.

n. 651.

II. The Possessor in Good Faith. 1. As regards the thing itself:

a) He is not responsible for a fortuitous event.

b) He can acquire by usucapion, and he is permitted to use the privileges of positive law.

Not rarely, on account of those privileges, the very delivery that has taken place to a possessor in good faith, or the inscription of his name in public registers, assigns the thing definitively to the possessor. Cf. 402.

c) He cannot prevent the owner from vindicating his own thing (except when usucapion has taken place); indeed, he must restore it spontaneously.

But what if, in order to recover the price which he himself gave, it were necessary to restore the thing to the seller, the thief? Many permit him to do this, because he does not place the thing in a worse condition.

But if another way is available for recovering the price, it is agreed that this way must be entered upon.

d) He who, by destroying or consuming the thing, has thence been made richer, whether directly, through positive gain, or indirectly, while he spared his own thing: from that advantage, insofar as it is to be attributed to the possessed thing and not to the industry of the possessor, he must make the owner indemnified concerning the thing lost, or, as others wish, restore the value which the thing had when it was being consumed.

e) He need restore nothing to the owner for a thing which he has handed over to another without gain; indeed, as is probable, neither for a thing which he has handed over with gain, as if, for the donation of the thing having been made, the donee out of gratitude of mind sent another gift to the possessor. For the right of the owner draws to itself the thing itself, but not the gain of the possessor.

As regards the fruits. Considering the law of nature, a possessor in good faith would have to restore existing fruits or fruits usefully consumed insofar as they were natural, expenses nevertheless being deducted; but many positive laws establish that a possessor in good faith can simply make the fruits his own.

Thus the Code of Ecuador, 898; Argentine, 2157; Austrian, 330; Belgian and French, 549; Bolivian, 293, 294; Brazilian, 510; Canadian Q., 411; Chilean, 907; Colombian, 964; Costa Rican, 327, 328; German, 955 [cf. nevertheless 2020]; Guatemalan, 519; Helvetic (Civil Code) 938; Spanish, 451; Italian, 703; Lusitanian, 495; Mexican, 834; Dutch, 604; Nicaraguan, 907; Panamanian, 137; Peruvian, 170; Salvadorian, 937; Uruguayan, 649; Venezuelan, 686.

Concerning this acquisition the laws of England and the U.S.A. are silent.

One must attend whether, according to the received interpretation of the law, the fruits are acquired already by their very birth or production, or only by perception; and whether or not the expenses of cultivation are to be paid back by the owner for the fruits which the possessor in good faith has acquired.

As regards damages: if you attend to opinions, he is compelled to repair no damages. Yet it seems truer that at least from equity it is required that, by means of the gain received from the thing, the possessor repair the damage which by his own deed, although not voluntary, he brought in. For gain received from the thing is, as it were, a fruit of the thing; damage arising to the owner is, as it were, an expense by which the fruit was received. But fruits are not understood except with expenses deducted. Therefore if the fruit is gathered by the possessor, he must pay the expenses, i. e. repair the damage. Or, if you prefer, having been made richer from another's thing, will he not be moved by a sense of equity to take from the gain for repairing at least the owner's emergent damage?
As regards contracts: a) he can use the benefit of positive law which confirms a donation or sale made to him; - b) if he has sold the thing, since, as seller, he must provide eviction to the buyer who has suffered it, unless the buyer, by an untimely restitution of the thing, has harmed the seller himself. In the rigor of the law, such as ours, by which the sale of another's thing is declared null, he would have to restore to the buyer the price retained as if without title; but because the tribunals themselves are accustomed greatly to consider whether or not the buyer has suffered eviction, he seems able to await the sentence of the judge. If the thing has perished, let him see whether or not he has anything to fear in civil law. If nothing, at least counsel should be given to him that he restore to the owner the price existing with him, as if, unknowingly but in good faith, he had managed this one's business.

Counsel, I say; for we have not dared to press a strict obligation independently of civil law. Many authors indeed solve the case more severely. But they follow the classical guides who were writing while Roman law was in force, by which restitution of the price was commanded. Cf. l. 28, D. V, 3: "For after the senatus consultum it must be said that every gain is to be taken away both from the possessor in good faith and from the robber." Cf. also l. 55 in the same place. Therefore authors distinguish the varied origin of possession. If the possessor bought the thing and sold the same without gain, they agree that the price is not to be refunded to the owner who cannot recover his own thing. But if he has sold the thing with gain (at least non-industrial gain), whether he bought it for less or received it as a gift, then that gain or price must be restored to the owner who cannot recover his own thing: for the thing is represented by that gain or price; the possessor cannot grow rich from another's thing. Yet neither reason seems efficacious. Not the former: for the representation of the thing by the price cannot vary on account of circumstances extrinsic to the price. For what reason, therefore, is it denied when the thing exists or has been sold without gain, but affirmed when the thing has perished by chance and has been sold with gain? Not the other reason. For from the law of nature only this is had: no one can grow rich unjustly from what belongs to another.

Therefore injustice would have to be demonstrated. Nor, according to the principles of law, can there be imposed on a seller in good faith both the obligation of providing eviction to the buyer and conditionally, if eviction has not had to be provided, the obligation of restoring to the owner the price obtained (cf. e. g. Aertnijs-Damen, I, 751). But once the sale has been made, by no direct relation is the possessor in good faith now bound to the owner of the thing. Nor is he held from unjust taking, since he has not sinned, nor from the thing received, since it has passed elsewhere. The owner can vindicate his own thing where it is, not where it was; but he has no personal action against the possessor in good faith. "Certainly, if while the purchase and sale were being celebrated, the owner had suddenly been present, to each one his own would have had to be restored, that is, the thing to the owner, the price to the buyer; but what afterwards happens by chance does not change the law" (d'Ann., II, 239, note 8, II).

Wherefore we judge it equitable that a possessor in good faith restore to the owner who is deprived of his own thing the price which he can restore without damage to himself, as if he had involuntarily but usefully managed the business of the owner; but we do not think that a strict obligation of justice of acting thus can be gathered from the law of nature.

N. B. As regards expenses, or costs made about another's thing, necessary expenses are to be paid to the possessor in good faith, i. e. those without which the thing would have suffered detriment, and useful expenses which have increased the value of the thing.

Yet the possessor in good faith acted at his own risk. Wherefore for useful expenses attempted in vain he can demand nothing. Merely pleasurable expenses are not to be compensated to him, but by him, if they are separable, they can be taken away.

n. 652.

The Possessor in Bad Faith:. 1. As regards the thing itself:

a) He is responsible for a fortuitous event, unless nevertheless it would have perished by the same identical fortune, or at least, as some benignly permit, at the same time in the owner's possession. Nor does he formally owe anything because the thing, affected by an intrinsic defect of disease or age, has perished.

b) He cannot acquire the thing by usucapion nor use the privileges of civil law,^¹ except the prescription of five years, concerning which above, n. 404, 2, c.

c) He must restore the existing thing with all increases which have come forth from the thing and not from the industry of the possessor.

d) If he himself has consumed the thing, or has alienated it in such a way that it cannot be recovered by the owner, he owes the value of this whole thing which was in it when it was consumed in that way naturally or civilly (as money spent). For as long as it existed, it belonged to the owner with its own value. Some benignly permit that only that value be restored which the whole thing had when the owner would have alienated or consumed it; but this is speculatively false. For the thing is preserved and grows for the owner. Just as he who had impeded the destruction of another's thing would have acquired no title from that to that thing or to its value for himself, so neither does the possessor in bad faith who prohibited the owner from alienating it obtain a right in the greater value of the thing preserved.

As regards fruits: he must restore all non-industrial fruits. Yet because, properly speaking, consumable things bear no fruits, the interest of money is not to be handed over to the injured owner as a fruit, but it is enough to restore that interest which the owner himself would have received; while the price of a rented house must also per se be restored to him who would not have rented the house.

For one thing must be said concerning the class of money, another concerning the price of a rented house or rented horse. For not less than the thing itself, its use calls out for the owner. But the price of use is the money to be paid for rental. Therefore whether the owner would have rented the thing or not, the possessor in bad faith will be able to make his own only that increase of price which is to be attributed to his own industry. But money does not have a use distinct from taking it up. Hence every fruit of it can be called industrial. Cf. concerning the principle alleged, Lugo d. 17, n. 58 ss.; d'Ann., II, 211.

Some nevertheless contradict that common opinion, who think it enough that the owner be made indemnified (Cf. Lugo, l. c. Piscetta-Gennaro, II, 111).

And often a greater obligation will not be understood by a possessor in bad faith. Wherefore no greater one will then have to be imposed.

As regards the damages of him who has the right: the possessor in bad faith must repair all damages which in a confused way were foreseen as going to arise from the injustice. Therefore that possessor owes to the owner: the price of an animal which died from disease but which the owner would have sold before the disease; the gain which the owner would have made from a more opportune sale; the interest which the owner would have received.
As regards contracts, per se he must provide eviction to the seller [source reads venditori; the legal context seems to require "buyer"].

N. B. a) Many things will often not be established. Then let him restore the value which the thing had when it was consumed, with compensation of use added, and, if the thing was consumable, with modest interest added.

b) Restitution is owed to him whose certain right of dominion or possession has been violated.

c) Concerning expenses the rules established for the possessor in good faith return.

¹ Unless some civil law wishes to punish negligent creditors, who do not reclaim debts, with this sanction of civil prescription.

n. 653.

What if several have successively possessed the thing?.

He owes the thing before others who has it formally or equivalently, or has destroyed or consumed it. - Then succeeds the robber of the thing.

Each one will owe, before others, the fruits which he has received.

Each one is responsible for damages with which he has cooperated, and this separately or in solidum, according to the rules to be handed down later.

n. 654.

The Possessor in Doubtful Faith:. 1. As regards the thing itself:

a) Every possessor in doubtful faith is bound by an obligation of justice to investigate the truth by effort and expenses which agree with the degree of doubt, the hope of success, and the importance of the thing. With the degree of doubt: wherefore a negative doubt can be despised; indeed even a positive one, if it is slight. With the hope of success: wherefore one can abstain from an inquiry which morally brings no hope of fruit. - With the importance of the thing: greater diligence must be applied to a greater cause. And because the diligence of him who perhaps must inquire at his own expense is graver or more difficult than that of him who is thereby exposed to no positive damage, more money must be spent on investigation when, by spending it, you will gain less, than when perhaps it will have to be deducted from your goods. Thus the finder of a lost thing will be able either to impute to the owner, if he is found, the expenses made for seeking him, or, if he himself has occupied it, to compensate himself from the value of the thing found. Moreover a possessor, at least one not to be blamed, is not bound to take upon himself expenses for removing the doubt which, considering the importance of the thing or the hoped-for fruit, are to be judged truly notable or grave. But he who from the beginning of possession or afterward has been guilty of injury is held more gravely than an inculpable possessor.

b) Once inquiry has been made: 1) he must satisfy the certain right of another or of others, according to the rules for a possessor in good or bad faith, according as he has been innocent or immune from delict, or from the beginning of possession or afterward, by neglecting to inquire, has sinned against justice; - 2) but if the certain right of no one has appeared, while the doubt remains, although many speak more severely about him whose possession was badly begun, he need restore nothing. And he is placed in that theological good faith which, in accommodation to positive laws, permits the thing to be acquired by usucapion.

c) He who, by omitting inquiry, has been the cause that he cannot discover the true owner or restore the thing to him who has the right, will have to destine it to the poor or to the common utility. - If that is not established, although many respond more severely, an uncertain obligation will not be able to be pressed.

d) He who, doubting concerning his own right, has despoiled of his possession a possessor who is not in bad faith, must per se restore the thing to him and repair damages. Cf. what was said concerning hidden compensation, n. 639.

e) We cannot make the condition of him who has the right worse. Wherefore the possessor must apply ordinary diligence in preserving the thing and in gathering fruits from it, nor can he dispose of the thing, unless the hope of certain truth has vanished, or unless, for avoiding damage or using an occasion of gain, the thing had to be usefully expended, with the intention of refunding the utility to the owner if he appears.

N. B. He who by an unjust action has been the cause of the doubt must himself bear the expenses for removing the doubt or discovering the right. Except if that difficulty was not foreseen even in a confused way. On the other hand, he who is not to be blamed will impose the expenses on the owner by right and merit.

As regards fruits and connected gains, the legal privilege of acquiring fruits does not belong to the possessor in doubtful faith, as such. Wherefore, with the principal thing, just as other advantages of the thing, they will have to be restored insofar as they exist, or even insofar as they have been consumed without good faith. Except, however, those which are owed to his own industry.
As regards damages: he must make good the damages who, by acquiring in doubtful faith, has made the condition of him who has the right worse, or who has neglected to inquire.
Nothing special is to be added about agreements and expenses.

n. 655.

You will ask how far it is lawful for us to acquire a thing from a possessor in doubtful or bad faith.

We are prohibited from occupying or acquiring anything in doubtful faith with the absolute intention of possession. But with a conditional intention, complicity being excluded, we are not prohibited from acquiring a thing even from a possessor in doubtful or bad faith, if we do not seem to make the condition of him who has the right worse, and if we take on a positive obligation of seeking the one who has the right and satisfying him. Then, while the doubt perseveres, although many command partial restitution, nothing strictly seems to be owed.

But if our acquisition must be charged as probable complicity in another's injustice, this action will be unjust, unless that complicity itself is excused by a grave reason. After the fact, if the matter cannot be investigated, there will not be certainty about the obligation of restitution.

n. 656.

II. - On Restitution on Account of Unjust Damnification

Principles. 1. An unjust damnifier, as such, must per se restore as much as the damage which has followed or has been unjustly inflicted. That quantity will have to be estimated both from the quantity of the right, and from the thing taken away, and from emergent damage and ceasing gain.

But what has happened beyond prevision, even confused prevision, since it has been invincibly unknown, is exempt from obligation as involuntary.
It can also happen, in a lighter matter, that condonation by the damnified person can be presumed.

n. 657.

Corollaries. 1. To him who had a right in a thing actually existing, its whole value must per se be restored. But if he had only a right to a thing, for example from money lent, or the thing was present only in hope, for example a future crop, a prize in a contest: an estimation of the hope itself must be made, according to the greater or lesser certainty of obtaining the thing. In the absence of a better indication, where there was solid probability, for example of carrying off a prize, the damage will be able to be estimated at half the value of the thing. But where it can be done, it will be better to enter into an arrangement.

Whatever fruits (properly and improperly so called) the owner himself would have obtained, the author of the damage must restore. But fruits will always be understood with expenses deducted. Wherefore, since today a fruitful investment of money is to be presumed, almost always not only are the fruits of the damaged fruitful thing to be restored, but also, for the value of any destroyed thing which had to be supplied by another, a certain civil fruit will have to be restored. Yet that presumption can be destroyed by a contrary fact. That fruit will have to be estimated from the value of the hope, so that a greater amount is to be paid to a banker conducting prosperous affairs, but a lesser amount to him who conducts no business or whose condition of fortunes is unstable. But since the circumstances which ground the estimation of damage are often unknown, and the inquiry itself cannot remove the doubt, where there is place neither for composition nor for transaction, it will be enough to restore the thing with the customary interest of an entirely safe investment. For the owner either would have invested the money in this secure way, or would have sought a greater fruit, but at his own risk: by the interest of a safe investment that hazard is compensated to him.
A modest alms extorted by fraud, on account of presumed condonation, is not to be restored. But a large one, by him who lied about poverty itself or necessity, will indeed have to be restored. Many judge that the option then made of restoring it to the owner or to true poor persons remains. Falsely alleged probity is not thought to generate anything except an accidental error, which does not per se seem to stand in the way of the value of the donation.
He who has taken away a thing which is indeed fruitful but of small value and for which another is easily substituted seems to satisfy by restoring the thing taken away. Thus he who has stolen an ordinary hen generally need not be solicitous about restoring the eggs. For the willing owner had an easy supply of obtaining a similar hen; and the value of the hen is so modest that no civil fruit of the money which is necessary for buying the hen is to be thought of.

Yet it is necessary that the owner have noticed the matter. If not, he had no supply for substituting another hen for himself, and the eggs, today of a price not to be despised, which the hen secretly taken from the owner would have laid, would be owed to the owner.

n. 658.

Summary

I. One must begin from this principle: since private persons, in their mutual relation, are equally, as such, inviolable, and this independently of merit or demerit, a) none can be assumed by another as a means for himself; b) no evil of one's neighbor can be intended or chosen, but only, on account of a just cause, permitted; c) a conflict of rights cannot be had except about goods which, by first destination common, can pass from one person to another.

II. He is guilty of injury who takes away from someone, not freely consenting, the good of supernatural grace, of truth, of the use of reason, of reputation. Therefore he is injurious:

Who has induced someone to sin, or has prohibited him from entrance into the novitiate or from profession, not by mere persuasion and example, but has efficaciously procured this by fear or fraud: he must indicate apt remedies and repair other damages.
Who has taught errors, especially practical errors; for speculative ones are less damaging per se.
Who by fear or fraud has intoxicated someone not consenting, or by an injection of morphine has deprived him of rational life in sickness.
Each person has a right that he be esteemed and treated according to his own innate or acquired goodness. That right is violated by rash judgment, detraction or calumny, and contumely.

a) Rash judgment is an interior but firm imputation of guilt on account of indications which are known not to be sufficient. Wherefore, without an evil affection toward the person, it is scarcely committed. And it is judged grave against justice if it is concerned with a gravely defaming guilt.

Mere suspicion, or begun assent, and doubt, or suspension of assent, since they do not take away from the mind of the one suspecting or doubting every good estimation of one's neighbor, even if they are rash, are judged venial by their genus.

b) By detraction and calumny (which here is the false narration of a defaming thing) reputation is taken away in whole or in part, which is opinion or estimation concerning another's excellence. There is distinguished connatural and common reputation, by which one is immune from reprehension, and positive or special reputation, which one acquires by good merit. To the former every human being per se has a right; to the latter, only he who has merited it. For common utility itself requires that reputation be preserved whole for each person, and not perish on account of an accidental defect.

There is distinguished direct detraction, which is intended or chosen, and indirect detraction, which is actively permitted; formal, or blameworthy, and material. Detraction which is intended or chosen by a private person is always unjust; but proportionate utility excuses its active permission; and the good of reputation is situated in the high dominion of public power.

The gravity of detraction is to be estimated not from the thing narrated but from the consequent detriment of estimation. To narrate another's hidden crime to one prudent man is not judged grave per se. Besides a defect of advertence, also modest credence given, or a certain attenuation of the thing imputed, can remove grave detraction.

But charity can gravely forbid the revelation of a crime which is not opposed to justice.

Reputation is to be restored by praise of the person, by honor exhibited, and also, if the detraction was lying, by open retraction, before the immediate hearers, and also, per se, before the mediate hearers. He who in good faith is excused from fault must nevertheless impede the sequel of his action from justice, unless he is excused by a relatively grave inconvenience. The obligation of restitution can be taken away by impotence, condonation, reputation recovered, compensation of the injury, or danger of a greater evil.

c) Contumely is contrary to honor. Honor is a testimony concerning another's excellence or goodness. Therefore contumely will be a signification of contempt by words, writings, deeds, sometimes by the mere denial of honor.

It not only saddens one's neighbor and thus is opposed to charity; but it also injures, in the opinion of men, dignity itself or the title of honor, and besides, in the offended person himself, spirit and confidence for acting. Wherefore it is an injury per se damaging. It is mortal by its genus, whether on account of an affection of grave contempt or hatred, or on account of grave dishonoring: this can vary according to the quality of the sinner or of the dishonored person, so that a parent or Superior can even without sin need certain reproaches. The species does not seem to vary on account of the excellences despised. Contrary, therefore, to what Molina thought, De iust., tr. 4, disp. 46, not charity alone but also justice, independently of a simultaneous wounding of reputation, requires restitution of honor by acknowledgment of excellence, petition for pardon, etc., unless the offended person, by himself or through a judge, has taken vengeance. Contumely, in the concrete, is judged to be a graver injury than detraction, because by external treatment it seems as it were to complete detraction.

III. He is injurious who has injured the body of his neighbor.

Direct killing by private authority is intrinsically illicit; as is mutilation itself, unless it is directed to preserving the body or temporal life. By the consent of the patient the note of injustice can be removed, but not another malice. Grave cruelty in execution brings in a new species of ferocity. Accidental homicide or mutilation is imputed insofar as they were foreseen as probably going to follow from an action which, on account of such danger, was prohibited by natural or positive law.

Corollaries. a) The intrinsic malice of homicide and suicide infects the duel, i. e. a contest of two or a few undertaken from agreement, or from a preceding pact, with lethal arms. A pact, if it is freely entered upon and is not compelled by another's provocation, removes injustice. But the evils foreseen from a denied duel in no way excuse the duelist, since immunity is sought from the evil act itself; nor does fear from censure render him immune, lest it could commonly be eluded. Cf. I, 220.

A duel is punished a) by excommunication simply reserved to the Supreme Pontiff, which from c. 2351 strikes ipso facto: "those perpetrating a duel or simply provoking to it, or accepting it, or furnishing any assistance or favor, and also those watching it by design and permitting it or, as much as is in them, not prohibiting it, of whatever dignity they may be"; - b) by privation of ecclesiastical burial, which affects those who, without a sign of penitence, died in a duel or from a wound received from it; - c) by infamy of law, by which duelists and their seconds are marked.

b) To exercise embryotomy or craniotomy upon a fetus certainly or probably living is intrinsically illicit, since it is the certain or probable (by probability of fact) homicide of an innocent one, who, while he is developing in his own place, cannot be compared with a materially unjust aggressor.

Canonically, homicides and cooperators are irregular from delict (c. 985, 4°); a church is violated by a notorious delict of homicide or by an injurious and grave shedding of blood (c. 1172, § 1, 1° and 2°); a cleric legitimately condemned for homicide must be degraded, while a layman is ipso facto excluded from legitimate acts and from any function which he had in the Church.

Restitution. On account of a wound or killing there is owed to the injured person himself or to the heir: a) that compensation of the injured body which the judge has defined; b) compensation of foreseen spiritual damage through suffrages of which the victim was deprived; c) compensation of temporal damage: expenses of sickness, emergent damage or ceasing gain; not, however, funeral expenses, which would always have had to be made. To the wife and children certainly only those aliments must be restored by which they are deprived through that killing, since as regards the remaining patrimonial damage the killing is not injurious to the family. Nor is anything owed to creditors, since the debtor is not the thing of the creditor; nor to an insurance society, for whose utility the killing was not prohibited. - Nothing is owed from justice if before death the wounded person remitted all things, or if the wound was inflicted in a duel to which the killer did not compel the other unwilling person.
The direct procurement itself of abortion, i. e. the expulsion of an immature fetus, is never licit. For if the fetus is animated, a lethal wound, through abortion, is inflicted upon a human person; but if it is provoked in the first days, so that more probably a rational soul is absent, the character of malice against nature is shared. But when the danger of a dying mother is imminent, abortion would too late be attempted for saving the mother herself.

But the acceleration of birth will be licit as often as in this way the life of the infant is better provided for, or at the same time the life of both infant and mother, who is necessary to the infant, is provided for.

Those procuring abortion, the mother not excepted, incur, once the effect follows, excommunication latae sententiae reserved to the Ordinary, "and if they are clerics, let them moreover be deposed" (c. 2350, § 1). Those provoking abortion, once the effect follows, and all cooperators are also irregular from delict.

But indirect procurement of abortion is excused by a grave and proportionate cause.

Before present necessity, it is not lawful to cut out an ectopic fetus; when the necessity of saving the mother is urgent, that excision today cannot be condemned as certain. Nor is it established, unless probable baptism is excluded by this way, that the use of electric force or of an injection of morphine is prohibited more than excision, since, by way of one thing, that which can be compared with an ulcer and the human ovular content are destroyed.

A surgical operation, suppose a Caesarean section, which is necessary for procuring sufficiently certain baptism for the infant, must per se be undergone by the mother, even with her own danger. She is not bound to undergo that danger for preserving the temporal life of the offspring. But the mother is to be gently induced to obey the counsels of an upright physician. Once the mother is dead, Caesarean section must per se be performed, even for extracting an immature fetus who is hoped to be able to be baptized. But prudence today prohibits clerics from direct intervention.
He also is injurious who does not hesitate to harm another's health, for example by communication of a grave disease.
It is lawful to use necessary force for repelling an aggressor whose aggression is morally present, even if the defensive action certainly brings with it the effect of the aggressor's death, provided that a proportionate good, such as life, integrity of members, chastity, or a temporal thing of sufficient moment, either absolutely or with attention to the injured person, is placed in danger.

Vengeance differs from defense with the moderation of inculpable defense, because vengeance takes punishments after the perfect injury. In a civilized society this is reserved to public power, if you except certain medicinal punishments which are not very afflicting.

He who by force or fraud has extorted copulation from a woman is injurious to the woman, and, if she was married, also to her husband; the adulterer and his accomplice are injurious to the spouse not consenting.

To a girl for whom, through defloration, he has made marriage more difficult, the seducer must compensate that damage according to his powers: either by taking her willingly as wife, or by supplying a dowry. Reparation through marriage is more adequate, per se to be desired if the marriage can be happy; indeed then it must per se be imposed upon the promiser or deceiver. The expenses of supporting the offspring must be borne by the seducer alone, always preserving the duty of piety by which both parents are held in solidum to support the infant according to the condition of the mother.

Simple fornication is often not damaging. Fornicators take on the common burden of supporting the offspring. Except the prostitute, who is judged to have assumed that burden (otherwise rare).

Adulterers are held to repair according to their powers the damage which per se follows from supposed offspring, and probably they are in an equal place for that obligation. That damage is contained in the aliments and customary gifts or goods which legitimate offspring are accustomed to receive from parents or from ascendants. Greater detriments to be avoided bring it about that the adulteress scarcely ever has to confess the crime; and the other also, whether by too great difficulty or by doubt about his own paternity, is not rarely excused from the obligation.

An adulterine son is to be treated as a possessor in good faith, nor should he believe his mother revealing his origin.

n. 659.

Appendix. — Ask how far public power can dispose concerning the personal goods of citizens, and what must be observed concerning the law of war.

I. Not even public power can ever directly injure the innocent, even if it wished to take vengeance concerning the delict of others; but on account of the necessity of human society, God gave to it the faculty even of exacting capital punishment, the juridical order being preserved, unless the public safety has dispensed from preserving it.

II. It can also, when another way is lacking, declare war for its own defense, or for exercising vindicative justice. On account of a merely probable right, war cannot be brought upon anyone unless he has refused a friendly composition. And a competent satisfaction offered by the other party must per se be accepted. In defensive war it is enough that the committed injustice is not established.

Concerning the justice of war, common subjects indeed are not bound, but learned men and theologians or voluntary soldiers per se must inquire.

Those who are compelled to have a part in an unjust war must abstain from hostile acts, and only if they are personally invaded by an enemy in such a way that he is unwilling to give life to one surrendering himself, can they defend themselves.

In a just war, all those things are lawful which are necessary for the end of the war, and are not prohibited by natural law or by agreements. Faith given to an enemy must per se be kept. But reprisals can be exercised only against guilty persons or against goods, if it is necessary.

Since he who pursues his own right does not thereby make his condition worse, public power will be able to convert war into a duel of a few.

Once war has ended, restitution of expenses and of things taken can be sought on account of suitable satisfaction. And a treaty of peace, although signed under compulsion, must be observed, unless it has been vitiated by manifest inequity.

Even in an iniquitous war, since common soldiers do not seem to act from conspiracy, they are bound to repair only the damages which have been done by their own hand. The obligation of the commander or of public power is graver.

Irregularity from defect of mildness has been removed by the Code.

Vol. II, Bk. II, Tractate V: On Justice, Chapter III: On Unjust Cooperation

Reason of the Order. - Since already before, n. 129 ss., we treated cooperation in general, and at n. 132 we showed how commutative justice can be injured by material cooperation itself when not excused, it is lawful for us to dispatch this argument rather briefly. First we shall describe the various modes of unjust cooperation; then we shall have to treat the consequent obligation of restoring.

Vol. II, Bk. II, Tractate V: On Justice, Ch. III, § 1. Various Unjust Cooperations

n. 661.

Notions. 1. Concerning how formal cooperation differs from material, cf. n. 129.

They are accustomed to enumerate the modes of cooperation in these little verses:

Command, counsel, consent, flatterer, recourse.

Participant, silent one, non-resisting, non-manifesting.

Thus six positive and three negative modes of cooperation are alleged.

n. 662.

I. - On the Positive Modes of Cooperation

I. On One Mandating or Commanding. 1. To him are imputed all damages which have been inflicted by the commanded action; and those also which, by a morally necessary nexus, are joined with the execution of the mandate. For the one mandating is truly the principal author.

These are imputed, provided it is established, as is to be presumed, that the executor was moved morally by the mandate to act unjustly.

The unjust things, moreover, which the mandatary has done from his own malice or vincible error are not imputed to the one mandating, as such. Yet if by the mandate a power was conferred without which the damage could not be inflicted, the one mandating can be held by another title of cooperation.

The causality of the mandate and therefore its imputation is suppressed by a revocation which becomes known to the mandatary before execution. Yet if the mandatary was instructed or excited by the one mandating, this force of counsel, even when the mandate has been revoked, subsists. But if from a fortuitous event or another's malice the revocation was hidden from the mandatary, the one mandating remains obligated toward the injured person. But he who has maliciously impeded the revocation will have to restore the damage to the one mandating, and easily, with respect to the injured person, contracts the principal guilt of the unjust action.
The one mandating is not bound per se to repair the damages which the mandatary himself has suffered, unless he has unjustly compelled him (by force and fear or by deceit) to inflict the damage.
Finally, damages alien to the mandate which are going to happen to a third party, the one mandating is not bound to make good, if they could morally have been avoided.

n. 663.

On the Counselor. 1. A counselor, unless he has efficaciously revoked the damaging counsel, must per se repair the damages proceeding from it, both those which have been inflicted on another from efficacious counsel, and those which he who accepted the counsel suffered, if he deceived this one by deceit or blameworthy error. But a persuader of a lesser evil to one who otherwise cannot be turned away from perpetrating a greater seems to many immune from injustice. Cf. what was said n. 128.

Moreover there is distinguished simple or naked counsel, without added motives, and counsel clothed with reasons; doctrinal counsel, by which some knowledge is communicated, and suasive counsel, by which the will is persuaded.

In doctrinal counsel the force of a principal action is easily present, as if an unlearned person, deceived by you, applied a lethal remedy, while suasive counsel contains secondary cooperation.

Especially in this matter those are to be blamed who profess special expertise and, without competent knowledge or sufficient investigation, rashly give counsels to those who can prudently trust them. This is especially to be attended to by those who, as confessors, advocates of causes, notaries, and physicians, are accustomed to give counsels by office. But a good counsel which pertains to the execution of a promised function is owed from justice. But he who has given counsel as a friend must nevertheless take care lest his action produce damaging effects. - Excuses in this matter are usually sought either from a deficient deliberation of the agent, or from the levity of the one believing, who has relied on things said in passing. In the latter case neither are damages to be repaired, nor is the counsel to be retracted from justice.
Mere persuasion of a depraved action imposes no obligation of justice toward the executor. But he who by his counsel has induced another to inflict damage, and has foreseen this, must repair that damage as its secondary cause. But counsel given to him who was already determined toward evil is not damaging per se. I say per se: for new counsel could have damagingly influenced perseverance in the evil proposal. But he who by depraved counsel truly moved another to act is not therefore excused because, after him, others have given or would have given counsel.
Efficacious retraction of the counsel removes that imputation. Here simple or naked counsel must be distinguished, which is retracted by simple revocation; counsel clothed with reasons, which is retracted only by new reasons being adduced; and doctrinal counsel, by which the mode of execution, which otherwise would have lain hidden, has been indicated: that is not retracted unless you have impeded the execution itself or at least have timely warned him who is going to suffer damage so that he can guard himself against it.

n. 664.

III. - On One Consenting

1. Notions. Those are here called consenting who, by joined votes, establish and decree something. Those who have constituted an unjust work in this way must repair, at least in part, the damages thence following according to the quality of the work and the efficacy of their cooperation. The work, moreover, can be a law, a judicial sentence, a decree, a counsel, the conferral of an office, or a mandate. Again it can happen that the votes were given by formal compact, so that they had authority over the votes of others; and it can also happen that they were given without mutual relation, by separated wills. Therefore:

2. Rules. a) Those who, from conspiracy, i. e. moved by an express or tacit compact, have given a vote, are the authors of the damage by one morally single action, so that the whole damage is imputed to each; i. e. they are held in solidum, as will be confirmed below, n. 671.

b) Those who, without conspiracy, gave a vote necessary for the damage, as if, for obtaining a law, as many votes as were given were required, likewise bear the imputation of the whole damage, according to the common sentence.

c) If, beyond the required number, votes have been given without conspiracy, writers go off into various opinions.

By several more recent authors all voters for an unjust law, decree, or judgment are condemned to restitution. These seem to us to think rightly. For the evil or damage is effected not by the votes as individual votes, but by the sentence, decree, or law, which is the common work of all who vote. Those consenting, therefore, must be compared with men who, more in number than was necessary, have accomplished one damaging work (suppose the carrying off of a chest).

Conspiracy being set aside, these must divide the damage among themselves by a proportionate part. By a proportionate part, i. e. by a man's share, unless unequal force of cooperation is demonstrated.

And according to that opinion, the mode of voting, whether simultaneous or successive, public or secret, does not change the obligation.

The more common opinion, however, is accustomed to distinguish these things.

It pronounces that those who at the same time, for example by rising, have given their vote are guilty of the damage in solidum. If they have voted successively, it obligates in solidum only those whose vote was necessary. For they gave a cause necessary for the whole damage; but after them the matter was morally completed. Therefore, according to the common sentence, those who afterwards acceded are per se dispensed from restitution: their accession was not damaging, unless the greater number became the cause why, for example, the law was sanctioned by the senate or by the king. But if, because the votes were secret, efficacious votes cannot be distinguished from inefficacious ones, each is condemned for the proportion of the doubt.

It was the opinion of some that, on account of the doubt, each should be excused. Ill. D. Waffelaert, De Iust., t. 2, n. 323, deservedly said that this opinion wanders from common moral sense, so that St. Alphonsus, l. 3, n. 566, called true the opinion which obligates at least to the proportionate part, to be paid for the doubt.

If another consideration is lacking, that proportionate part will be a man's share. Afterwards St. Alphonsus, Homo Apost., tr. 10, n. 50, obligates each one according to his proportion to repair the damage; but to the whole if the others do not restore. Lugo too admits this necessity of restoring the whole if the others do not restore, Iust. d. 19, n. 85.

You should observe, therefore, that in a secret ballot the votes which the more common opinion has as the only efficacious ones are defined not by the order in which they were given but by the order in which they are proclaimed. But each one who knowingly gave a vote consented that his vote should exercise this efficacy.

Whose votes, however, were first pronounced is not known, unless they can be recognized by a special mark having been added. Thence comes that doubtful efficacy of the individual votes, on account of which the more common opinion obligates all for the proportion of the doubt, or most often by individual men's shares.

Finally, if votes are given openly but in a revocable mode, then all are held for the damage, because all the votes, up to the last, were efficacious. So Carrière, De Iust. et iure, 1188; Tanquerey, 528, who, however, here omit to declare whether they impose an obligation in solidum or a divided one.

3. Special things to be noted. a) He who, by force of office, and therefore from justice, was bound to give a vote, can already by the very omission of the vote sin against commutative justice.

b) If the matter admitted by the votes was not intrinsically evil, the necessity of averting a greater evil can remove the very stain of injustice from the voting.

c) If the votes were only consultative, the efficacy of the counsel is to be weighed. If this is demonstrated, those things which were said about consent in a decree will return concerning consent in counsel.

n. 665.

IV. - On the Flatterer or Adulator

He can be held for damages by a twofold reason: insofar as, through praises, blame, reproach of cowardice, and adduced human considerations and advantages, he has efficaciously impelled someone to inflict damage; or insofar as by similar arts he has impeded restitution. He can decline the obligation by an efficacious revocation.

n. 666.

V. - On Recourse or the Receiver

While he offers security either to an evildoer or to things carried off by robbery or taken away by theft, he will be held for damages: a) insofar as he moved the evildoer to perpetrate the crime; b) insofar as he supplied the means of executing the crime, which the other used; c) insofar as he did not make restitution or impeded it.

That cooperation, if it was material, can be excused by grave damage.

He who, by hiding a man or defending him from magistrates, has freed him from penalties, cannot be accused of injustice, although he can sin against charity owed to other citizens or to the state. Yet at the same time, according to his powers, he must effect that the protection of an unjust man does not stand in the way of restitution nor otherwise become damaging.

n. 667.

VI. - On the Participant

A participant can participate either in the booty or in the bad action itself.

If in the booty: he must be treated as a possessor of another's thing, and indeed as a possessor in bad faith, if he knowingly and unjustly received a part of the booty.

But if, in circumstances in which he cannot escape the stain of injustice, he has participated in the unjust action, he must repair the damages of which, either by acting or by cooperating, he was an efficacious cause. Yet immediate participation must be separated from mediate participation. One participating immediately, or committing the unjust thing himself, violates a negative precept unless he is excused by the right of necessity; one participating mediately omits the positive precept of taking care lest our action bring damaging effects: wherefore he is excused by every detriment which is notable in itself and relatively. - Finally, he who truly doubts concerning the damage inflicted or concerning the efficiency of his action, when the doubt perseveres after sufficient investigation, strictly owes nothing, since no one seems to be despoiled of his thing on account of an uncertain obligation.

n. 668.

What if several have given a cause of damage efficacious per se, yet in such a way that it is unknown which of the several was truly the author of the damage? For example, two or more gave counsels: by which of them the author was moved is not known; two at the same time, without conspiracy, by firing a gun, killed or wounded a man, but it is not known which did it; two or more approached the same wife and offspring is born certainly adulterine. For if the husband himself also approached, so that perhaps the offspring is legitimate, the damage itself will not be established.

This matter is not outside controversy. From the principles it must be said as follows. Those who acted conscious of future confusion consented that the damage should be effected by one morally single action, as one which cannot be distinguished. Wherefore they will have to bear it by a man's share. But he who was ignorant of this is held only by an uncertain obligation. Cf. St. Alphonsus, l. 3, 658.

n. 669.

II. - On Negative Cooperators

On Negative Cooperators. 1. They must by restitution repair the damages which they themselves would have impeded by the action unjustly omitted. But officials placed over taxes do not seem to be held by justice to exact fines.

But if it is not established that some damage would have been impeded, no restitution will necessarily have to be made. But in doubt concerning the quantity of the damage, justice is satisfied if the least certain quantity is returned. Cf., however, here immediately below, 3.
If several who ought to have acted omitted the action from conspiracy, all will be held for the damage in solidum.

If without conspiracy, nevertheless each, according to Lugo, d. 19, n. 108, will be held in solidum if by his action he could have impeded the whole damage either immediately or mediately, by determining others who had previously abstained.

He gives the reason because each was a total cause. And add: a necessary one, since, with one acting, the damage would have been impeded. But if the action of one was foreseen as useless for impeding the damage, Lugo nevertheless, l. c. nn. 110-112, obligates each to act from justice, because the action of one suffices to remove the excuse of inability by which the others would contend that they were freed from the obligation. For with one acting, the others by their cooperation could impede the damage. That reason seems rather subtle.

Vol. II, Bk. II, Tractate V: On Justice, Chapter IV: General Circumstances and Excuses of Restitution

n. 676.

I. - General Circumstances

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

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

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

He who by many small thefts has inflicted damage on many citizens will better make restitution by thereafter selling for less to the same morally identical buyers, until equality is restored. Yet this is not prescribed under grave obligation, unless toward those who have suffered notable damage. Indeed, the others are rather easily presumed to consent that restitution be made to the poor.
If it is unknown to whom the thing to be restored belongs, and by sufficient inquiry the doubt is not dispelled: a) if the doubt is restricted among a few, personal equality commands that the thing be divided among them; - b) if the doubt is among many, or, because the owner is wholly unknown, the thing is of uncertain owner, nature cannot ratify the possession which the thief would wish to keep under this title. Wherefore he must despoil himself of it and devote it to the poor or to a pious work. The conclusion is admitted by all. Not a few confess that the proof is difficult. We prefer this proof. He who has possessed a thing from injustice must, in the only way in which he can, render the other unharmed. The only way is that he make that use of the thing badly usurped, or of its value, which the injured person reasonably ought to ratify. What other use can be indicated except a pious use, by which the common good is procured and at the same time the soul of the injured person is consulted! Cf. St. Thomas, 2, 2, q. 62, art. 5, ad 2.

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

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

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

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

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

n. 677.

II. Manner, place, time of restitution.

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

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

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

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

In manner, this alone is to be considered, that due equality be restored. If therefore it cannot conveniently be done otherwise, it can be done secretly, or under the appearance of a donation, or through an interposed person, or by undertaking undue labor for the advantage of the injured person. But what the creditor, deceived by the apparent gift, repays from gratitude must be restored to him, unless the thing was of small value or such as cannot be returned without offense to the giver.
Concerning place, a) A possessor in good faith, provided he acts prudently, sends the thing at the risk of the owner; on the contrary, a possessor in bad faith must go into this hazard. Yet he is freed, even if the thing perishes on the way, if he has followed a mode approved by the owner; if, from the presumed will of the owner, he has chosen a mode prescribed to him by law or by the judge; or, as several wish, if he has used a confessor for returning what he could not return by himself. As to debts from contract, an express or tacit agreement defines at whose risk the thing is to be sent. Per se the risk belongs to the buyer.

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

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

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

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

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

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

n. 678.

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

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

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

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

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

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

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

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

n. 679.

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

II. - General Excuses

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

n. 680.

I. On the part of the debtor.

The following show or make the debt to be nothing:

a) Defect of proportionate theological fault.

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

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

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

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

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

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

n. 681.

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

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

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

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

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

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

n. 682.

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

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

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

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

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

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

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

n. 683.

Summary

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

Restitution must per se be made immediately; so that an unexcused delay is a new injustice, to be estimated according to the general norms. Inculpable delay is in no way imputed to him who owes from contract; but it seems to impose on him who owes from delict the burden of bearing the damage, at least if it could have been foreseen in a confused way.
The mode of restitution must be such that due equality is repaired without damage or inconvenience of the creditor: as if by too many tiny restitutions you restore grave matter.
Restitution must be made in that place where the creditor has a right. But a possessor in good faith, at the risk and expenses of the creditor, and a holder in bad faith, at his own risk and expenses, both prudently send the thing. Each can deduct useful expenses from the quantity to be restored.
To whom restitution must be made. 1. Per se to the certain and known owner of the thing; yet rather to the despoiled possessor. - 2. To the society which has been injured or has the right, not to the individual associates, unless the society was illegitimate; and then often the grave obligation will be only that of giving to the poor or to a pious work. - 3. Restitution must be made to the treasury in such a way that the State itself recovers its good. - 4. If by many small thefts damage has been brought to many, it will be better to procure the badly acquired good morally for the same persons. If no one among the many has been gravely injured, they are rather easily presumed to consent that restitution be made to the poor. - 5. If it is unknown to whom the thing pertains, the thing must be divided among the few concerning whom there is doubt; if there are many, or the thing is of uncertain owner, nature nevertheless cannot ratify the possession of an unjust man. Wherefore the thing must be devoted to the common good of the poor or of pious works. The common opinion imposes the same substitution on the damager.
Order among creditors. The patrimony of the debtor is commonly obligated to all creditors. Nevertheless, another's thing, at least one defined in body, must per se be returned first to its owner; - privileged and hypothecary creditors cannot be prohibited from exercising their rights; - those things which are owed by an onerous title must be paid before those which have been gratuitously promised; - more probably a known owner is to be preferred to an unknown one. Nor is he to be reproved who, while creditors are of equal right, has paid first the more diligent, or the older, or the poorer, or indeed the greater friend.

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

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

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

…and 1 more passage — all of them are listed on the topic page.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 1 passage

Vol. II, Tr. XI, Sect. I, Q. III, Chapter IV. On Restitution Or The Reparation Of An Injured Right

n. ¶37.

We divide this chapter into four articles: 1. on the obligation of restitution in general; 2. on the roots of restitution to be made; 3. on the manner and circumstances of restitution; 4. on causes excusing from restitution.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 156 passages

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION

n. ¶923.

"The present matter of restitution needs careful consideration: both because it abounds in most intricate questions, and because the confessor ought equally to make a scruple for himself if he does not oblige penitents to restitution who are held to restore, as if he obliges those who are not held" (H. Ap., XIII, n. 35).

We shall discuss: 1. the obligation of restoring; - 2. those who are held to restitution; - 3. the measure and order of restitution; - 4. those to whom restitution must be made; - 5. the circumstances of restitution; - 6. the causes exempting from 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.

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).

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 II: On Those Who Are Held to Restitution

St. Alphonsus, III, n. 542-582; ed. G., II, p. 52; Soto, L. IV, c. 7, a. 3; Reuter, P. III, tr. III, c. 2; Lehmkuhl, I, n. 1127 seqq.; Noldin, II, n. 437; Aertnys, tr. VII, n. 307; Genicot, I, 511; Loenartz, Restitutionspflicht des Besitzers fremden Gutes; Carriere, n. 1035 seqq.; Ciolli, Dir. prat. du j. conf., II, 230.

n. ¶934.

To restitution are held: 1. the unjust possessor of another's thing; - 2. the unjust damager; - 3. the unjust cooperator.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. II, ARTICLE I: On the Unjust Possessor of Another's Thing

Another's thing can be possessed unjustly in a threefold way: 1. with good faith, in which case there arises the obligation of restoring from the first root only, that is, from the thing accepted; - 2. with bad faith, and in this case there arises the second root, namely unjust acceptance; - 3. with doubtful faith, from which, according to the various conditions of the doubt, the first or the second root can arise.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. II, Art. I, § 1. ON THE POSSESSOR OF GOOD FAITH

DEFINITION. A possessor of good faith is he who invincibly is ignorant that the thing possessed by him is another's. As is clear, such a one does not injure the right of his neighbor except through merely material injustice (I, 34).

In civil Law, he is called a possessor of good faith who possesses as proprietor, from a title transferring property, the defects of which he is ignorant.⁰¹

n. ¶935.

PRINCIPLES. I. A possessor of good faith ought not to become rich from another's thing. There is exception if the thing has already been prescribed; in which case he does not become rich from another's thing, but from a thing which, by force of laws, has been made his (III, 556, 607).

II. A possessor of good faith ought, of himself, to be preserved unharmed: that is, just as he can acquire nothing from another's thing, so he ought to lose nothing; because he is not in fault.

We said of himself, because, in a case of conflict between the possessor and the owner, the owner of the existing thing is superior in right; but laws, on account of the common good, sometimes favor the owner of the thing, sometimes the possessor.

From these principles flow the possessor's obligations and rights, both as regards the thing itself and as regards fruits and expenses.

n. ¶936.

A. Rights and obligations as regards the thing itself. 1. If he still has the thing, for example a horse, money, etc., once the error has been discovered, he is held to restore to the owner the thing existing in whole or in part. For the thing cries out for the owner. Thus from natural and Roman Law.

From French, Italian, Austrian, and Spanish Law, he who has bought a thing in a public market, or from a merchant selling such things, is not held to return it to the owner unless the price is refunded to him; and the owner of the thing can afterward in turn seek this price from the seller.⁰²

From English Law, if the thing was bought in fairs or markets (market overt), except in the case of eviction by the sentence of a judge, ownership is likewise transferred to the buyer of good faith.⁰³ And since this has been established for the security of commerce, the thing can be retained with a safe conscience.

From German Law, he who in good faith has acquired another's thing, not stolen nor lost, from a person not suspect, by that very fact becomes the owner of the thing and can retain it. Indeed, although afterward it is established that it is stolen or lost, he can retain it if he acquired it in an auction, or if it is a question of money, or of titles (titres au porteur). In every case it becomes his after ten years.⁰⁴

If the possessor no longer has the thing, in reality or in equivalent, he is held to nothing; because a thing naturally perishes for the owner; unless he has become richer.⁰⁵ In this case he must restore to the owner that in which he has become richer. Now he is said to have become richer who either has spared his own thing while using another's, or has something which otherwise he would not have had. In doubt whether he has become richer, he is held to nothing; because in doubt no one ought to be deprived of his own thing (III, 706). Cf. above n. 45.

Hence: a) If in good faith you have bought a thing taken by theft and sold it without profit, you are held to restore nothing; but only he with whom the thing is. But if you have received profit, you must refund this, unless it is the fruit of your industry, to the owner seeking it. - b) If you have sold another's thing given to you by gift, you must return the whole price, by which you have become richer; indeed to the owner, if he is unable otherwise to recover his right; but to the buyer, if the thing itself has already been restored to the owner. - c) If you have donated or consumed the thing, sparing your own things, you are held to restore as much as you have spared. - d) If you have donated or consumed the thing solely because you had it, and otherwise would not have donated nor consumed an equivalent, you are held to nothing (III, 601, 609).

Note. When a donation of another's thing has been made, the donor, once the error has been discovered, is held from charity to warn either the donee, that he return the thing to the owner, or the owner himself, that he may be able to recover his own thing. Indeed, from the reason of justice, he seems to be held to the same thing, namely from the obligation which the author even of merely material injustice incurs (III, 564).

If the possessor has sold the thing, and it has perished in the hands of the buyer: a) he is held to nothing, if he had the thing from an onerous title; for the obligation

of restoring arises neither by reason of the thing, which he no longer has, nor by reason of damage, of which he is not the cause; - b) he is obligated to restore the price of the sale if he obtained the thing from a gratuitous title; for in this he has become richer. But restitution can be made at will either to the buyer or to the owner, since the rights of each appear equally founded.

Except: 1. if the thing would equally have perished with the owner, for example from age; 2. if it perishes by the buyer's fault; 3. if the law disposes otherwise (III, 607-609).

Note. There are not lacking authors who say that, even in the case in which the possessor received from a gratuitous title the thing which has perished, he is held to nothing. See Noldin, II, n. 439, 2.

n. ¶937.

B. Rights and obligations as regards fruits. 1. No one is held to restore industrial fruits, because they are not the fruits of the thing, but of the man who has gained them by occasion of the thing or through the thing. Hence he who, by negotiating with another's money, has acquired riches for himself, is held to bestow none of these upon the owner of the money (III, 610 and 825).

As regards natural and civil fruits: a) From natural Law, the possessor of good faith must restore all certain fruits, for example of letting, whether existing or even consumed, insofar as he has become richer from them; expenses and labors, however, being deducted. And the same must be said of mixed fruits, insofar as they are not industrial (III, l. c.). b) But from positive Law, he certainly is not held to restore prescribed fruits, and probably also those already received.

French, Spanish, Austrian, Italian, and German Law transfer to the possessor of good faith all fruits received during his peaceful possession⁰¹ (except, in Germany, fruits received from a thing accepted by title of donation or inheritance); and this disposition of law more probably has force also in the forum of conscience, since it favors the public good by removing innumerable difficulties and complaints which could continually be stirred up concerning fruits to be restored. Thus Gousset, Gury, Del Vecchio, Porpora, and not a few others.

n. ¶938.

C. Rights and obligations as regards expenses. From natural Law: 1. It is licit for the possessor of good faith, when restoring another's thing, to deduct necessary expenses, indeed useful expenses, which he has made for the conservation or increase of the thing. Otherwise the owner would receive more than is his. - 2. But he can demand back or retain nothing for merely pleasurable expenses, which namely he has spent on the ornamentation of the thing, for example for paintings, gardens; because it is not equitable that the owner tolerate costs made on things useless to him. The possessor can carry away the ornaments themselves, provided he does this without detriment to the thing.

Modern laws confirm natural Law almost entirely.⁰² Yet they raise several difficulties in estimating the facts; nor before the sentence of a judge do they compel the owner of the thing to refund expenses doubtfully useful or doubtfully necessary.

n. ¶939.

Questions. QUAER. 1. Whether he who in good faith buys a stolen thing can return it to the thief in order to recover his price?

Resp. 1. Negatively, if the owner appears seeking his own thing. For then he must return it to him, even with the loss of his own price; because by natural Law the owner can occupy his own thing in whatever place he finds it; nevertheless an action is given to the buyer against the thief. - But see n. 936, 1, as regards civil laws.

If the owner does not seek his own thing, very probably, and perhaps more probably, the buyer, to whom no other way is available for preserving himself unharmed, can remit the thing to the thief in order to recover his money: both because no one is held to preserve a thing for the owner with equal damage to himself; and because each one has the right to recover his own goods; "and an action is forbidden to no one which is of itself necessary and direct for repairing his own damage, although indirectly and accidentally damage may thence come upon another" (III, 569).

QUAER. 2. What then must be done if you indeed know that the thing possessed by you is another's, but you do not know the owner?

Resp. Concerning this one must determine as concerning a thing found (cf. n. 886). Therefore, if the owner cannot be found, you can retain the money. "And the same must be said of a poor person to whom a thief has given the theft, when the owner has not been found. For if there was no hope of finding him, ownership has already been transferred to the poor person, so that he is not held to return the thing to the owner, even if the latter afterward appears" (H. Ap., X, 69, fin.).

Note. If the possessor of good faith is in culpable delay in restoring, he begins to be of bad faith; and therefore he is held to compensate the damage coming from the delay, as will be clear from the things to be said. But since he must restore in the place where the owner dwells, if the owner is absent, he can defer restitution.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. II, Art. I, § 2. ON THE POSSESSOR OF BAD FAITH

DEFINITION. A possessor of bad faith is he who accepts or retains a thing, knowing that there is no just title for himself for accepting or retaining it. He injures the right of another through formal injury.

n. ¶940.

PRINCIPLES. I. A possessor of bad faith, from the title of the thing accepted, can never become rich from another's thing. The reason is evident.

II. A possessor of bad faith, from the title of unjust damaging, must render the owner of the thing unharmed; in other words, he is held to compensate profit ceasing and damage emerging, at least foreseen in a confused way. The reason also is clear.

This, however, is understood if the owner has a full right in the thing; for if he possesses only a right to a thing, compensation must be weighed according to the value of the hope which the owner had of making the thing his own.

n. ¶941.

From these principles flow the following obligations:

A. Obligations as regards the thing itself. 1. If the thing still exists, it must be restored in the individual. Yet if the thing, which would not have been worse with the owner, has come into a worse state with the thief, the latter is held, at the owner's option, either to restore it with the value of the detriment done added, or to restore its price in full (III, 620).

We said: it must be restored in the individual, and indeed even if the thing taken away has meanwhile increased in price, and notwithstanding that the owner would have consumed it before its increase; for the thing, as long as it exists, bears fruit for the owner.

Note. If the stolen thing first increased in price and afterward decreased, the greater price must be restored. The reason: the thing bears fruit for the owner, and the thief by culpable delay is the cause of the damage which the owner suffers, because the owner was unable to use his thing while it was worth more (H. Ap., X, 78).

If the thing has perished, even by a fortuitous event, it must be restored in equivalent. The reason: it is presumed that it would not have happened that the thing perished with the owner. - Moreover, because of the taking away, the thief has taken every damage upon himself.

A fortiori, it must be restored in equivalent if the thing has perished by the fault of the thief alone or of another; for example, if a horse was killed for this reason, that it had been led away by the thief from a safe place. - The obligation of restitution does not cease from the fact that, after the destruction of the thing, a common danger arrived in which the thing certainly would have perished; because the obligation has already been contracted.

Note. a) Yet if the thing perished without the thief's fault, and otherwise would certainly have perished with the owner, the thief is held to nothing; for there is only injury without damage.

b) If the thief, at the same time at which he foresaw the threatening ruin, consumed the thing, he would probably be held to nothing.

c) If, after the common danger had passed, the thing perished in another common danger, the thief in practice is held to nothing else than to restore only the fruits of the thing which the owner would have received from the thing (H. Ap., X, n. 79). The reason: culpable delay in restoring impeded the owner from receiving them.

d) Several modern Codes oblige the thief to restore the price, in whatever way the thing has perished or been lost (French Code, 1302; Italian, 1298; Spanish, 457). This, however, binds the conscience only after the sentence of a judge.

B. Obligations as regards fruits. A possessor of bad faith is held to restore all fruits, both those which he himself has usefully received and those which he has consumed without thence becoming richer; and besides, all the fruits which the owner would have received from his own thing.

Thus a thief is held to restore stolen money with interest, if it is established or conjectured that the money would not have remained idle in the owner's possession. This must most certainly be conjectured according to the custom of men today, if it is a question of a great sum of money, and especially because civil Law also binds one to pay interest even for small sums. H. Ap., X, 74.⁰³

Note. 1. But lest we go beyond measure in computing unfavorable consequences, it is useful to note that evils which are inflicted on someone are not to be extended to empty possibilities, but are to be measured as they are usually appraised from the common estimation of men. Thus, for example, it would be ridiculous to propose to him who killed another's hen a calculation of how many chicks could in the course of time have been born from this hen. Account must likewise be taken of accidents in which things can perish; likewise of those expenses which would have had to be made for the sake of repair, etc.

As regards industrial fruits, these can always be retained. Therefore if someone has stolen small trees and planted them, he must restore not the trees which have grown, but the price of the small trees; which price, indeed, must be greater. Roman Law says that a double price must be paid (Lehmkuhl, Cas. cons., n. 654).

C. Rights as regards expenses. A possessor of bad faith can deduct, besides industrial fruits, both necessary and useful expenses; indeed even merely pleasurable ones, where, with the substance intact, they can be separated.⁰⁴ - The reason is that he is held to no more than that he preserve the owner unharmed; but unless he can deduct expenses, the owner would make a profit, receiving more than is his. Except the case in which, as a punishment of the delict, he would be condemned to lose all expenses, at least non-necessary ones (III, n. 618).

n. ¶942.

Questions. QUAER. 1. What if another's thing has passed through the hands of several possessors of bad faith, by donation or sale?

Resp. 1. As regards the thing, it must be restored by the last possessor. If he fails, the robber is held for the price of the thing. But if neither satisfies, the rest must pay the price of the thing in equal portions. Finally, if the rest fail, each one is held to the whole. - 2. As regards the fruits and damages of the thing, each is held to compensation for the part of time for which he detained the thing. If the others do not restore for their share of damaging and fruition, the reparation of the whole damage lies upon each one, in proportion to the time elapsed from the day on which they successively became unjust possessors of another's thing.

QUAER. 2. Whether he who knowingly buys another's thing from a thief can return it to him in order to recover the price?

Resp. Doctors more commonly deny, as St. Alphonsus testifies. But the holy Doctor himself holds the affirmative opinion as absolutely probable and perhaps more probable. "The reason is that, although that man sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, just as the buyer of good faith, to rescind the contract," nor does he become guilty of the damage inflicted on the owner, because by returning the thing to the thief he does not place it in a worse state than he himself found it, from which, moreover, he was not held from justice to withdraw it (III, 570).

But otherwise, if, because of longer detention, the things could no longer be recovered by the owner.

n. ¶943.

From these things resolve: 1. He who carried another's grain elsewhere and sold it more dearly than the owner would have sold it is not held to restore that increase of price. But if he sowed the same grain in his own field, he is held only to return similar grain, so that the owner may be preserved unharmed. Likewise, if someone puts another's eggs under his own hen to be incubated, he is held to restore only the value of the eggs (III, 609, 8).

If someone accepts another's thing mixed with the thief's things, for example another's grain with the thief's grain, the one accepting, although in bad faith, is not held to restitution if the thief is equal to restoring; because what was accepted was now the thief's own, as we said in n. 888, 4. But if the thief for that reason would not be equal to restoring, the one accepting is held to restore, because through that acceptance he efficaciously influences the alienation of the thing, with detriment to the creditor (III, 612).
He who feigned himself poor in order to extort a notable alms is held to restore this to the owner or to other poor persons. Otherwise, if the alms had been small, or if one truly poor feigned himself upright (III, 622).
Those who on account of simulated poverty obtain pensions destined for poor youths who aspire to the priesthood are held to restitution, because they defraud the will of the benefactors, since they can comfortably complete the course of studies at their own expense. And the same must be said of those who are indeed poor, but apply themselves to studies for another end; but not of those who, not excluding at the beginning the intention of entering the clerical state, afterward, the matter having been considered more maturely, recognized that they were not called to such an institute of life; for these are sufficiently in good faith, and the benefactors themselves do not wish someone not called to creep into the priesthood (Konings, n. 703, 7).

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. II, Art. I, § 3. ON THE POSSESSOR OF DOUBTFUL FAITH

n. ¶944.

NOTION. A possessor of doubtful faith is he who positively, because of probable reasons, doubts whether the thing which he accepts or possesses is his or another's (I, n. 37).

PRINCIPLES. I. Every possessor of doubtful faith is held seriously to inquire, so that thus he may lay aside his doubt. The reason is that, if he contemns a doubt of this kind, he exposes himself to the danger of retaining another's thing and of frustrating another at least of the hope of ownership.

Otherwise, if the reasons are slight; because these cannot weaken the moral certitude which possession itself begets (cf. n. 44).

II. While the inquiry is being made, the possessor of doubtful faith cannot abuse the thing as proprietor; nor can he alienate it, unless he has forewarned the new possessor of the existing doubt. But he can accept it, not with the intention of retaining it, as is clear, but with the intention of restoring it to the owner if, after diligent inquiry, the latter appears (Bouvier, de Jure, P. II, c. 2, a. 1, § 3).

But because doubt can arise when possession itself begins, or when possession has already begun, two things come to be discussed as regards restitution itself.

1. On Doubt Beginning with the Possession Itself

n. ¶945.

1. He who in doubt has begun to possess, disturbing another from his possession, for example by taking away from the possessor a litigated thing, is held to restore the whole thing to him, unless it is established that he began possession with bad faith. For in doubt the condition of the possessor is better (Lugo, disp. 17, n. 80).

He who has accepted a thing with a title of itself legitimate, for example of donation or purchase, but with doubt whether it is another's and possessed in good faith by the predecessor, if after inquiry he remains wavering, is held to restore, in proportion to the doubt, to the probable owner, if he is known; or to the poor, if the owner is unknown.

The reason is that, on the one hand, possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole thing for himself; on the other hand, it does not seem equitable that he be obligated to restore the whole, since it is doubtful whether the thing is another's (III, 625). - Civil laws and the consensus of all cannot be invoked here so that possession of fact may become useful for such a possessor; for from the beginning positive good faith was lacking.

If none of the litigants in fact possesses the thing itself, and the doubt is equal, the thing, or its price, is to be divided equally between them. But if the doubt is unequal, it seems it must be divided according to the proportion of the doubt (Lacroix, l. 3, P. 2, n. 566).

Notice: 1. He who has accepted a thing or right, for example an inheritance, from a possessor of good faith, and has begun to possess with doubt, can protect himself by the right of his predecessor and conduct himself as if he were a possessor of good faith to whom doubt has supervened. - 2. He who doubts negatively whether his predecessor was in good faith can use the axiom: "No one is presumed evil unless he is proved so." - Otherwise, if he has found him in bad faith and doubts whether he began his possession with such a disposition of soul; because "once evil, he is always presumed to be evil," according to the 8th Rule of Law in the Sext (I, 36, 37). Recall the things said in n. 895.

2. On Doubt Beginning after Possession

n. ¶946.

1. A possessor of good faith, to whom a doubt arises concerning a possessed thing from a probable motive, for a slight motive is to be contemned, if, due diligence having been used, he recognizes that the thing is another's, is held to restore it, together with that in which he has become richer, as a possessor of good faith.

If the doubt perseveres equal on both sides, or if the possessor has for himself a probable opinion and against himself a more probable one; or for himself mere possession, and against himself an opinion only probable: he can still retain the thing for himself until it has not been morally established, that is, by a proof overcoming the presumption of possession, that the thing is another's. - The reason is that as soon as the possession itself is certain and legitimate, that possession, although alone, by itself begets a certain presumption concerning the justice of possession, which outweighs all non-convincing reasons and yields only to truth (I, 35, 36). Cf. the things said in n. 45.
A possessor of another's thing who, after doubt has arisen, culpably has neglected to inquire, is held, if afterward the presumed true owner of the thing can no longer be found, to restore something, either to the presumed owner or to the poor, if the owner is uncertain. The reason is that "since he himself culpably deprived the owner of the hope which the owner could have had toward the thing, and that hope was indeed estimable by price, now certain damage has been inflicted on the owner, who also certainly possessed that hope." Thus the truer opinion, which St. Alphonsus defends (I, 37) against Tamburini (cf. Lehmkuhl, I, 1144).

Nevertheless restitution is not to be made in proportion to the doubt, but less and perhaps very much less; because the detainer of the thing is in a better condition, on account of the right of possession which favored him and still favors him; for possession of the thing is valued much more highly than possession of the hope.

Note. In one case the opinion of Tamburini perhaps could be sustained: if namely the possessor of another's thing doubts only in an indeterminate way whether the thing is another's. Cf. Genicot, I, 534, v. fin.

n. ¶947.

On doubtful payment. To what is a debtor held if he seriously doubts concerning payment having been made?

Resp. There are three opinions. The first opinion says that such a debtor is no longer held to payment, provided he himself did not culpably cause the uncertainty. Thus among the more recent authors, Waffelaert, Genicot, Noldin. Their reason is that, on the one hand, the debt here and now is uncertain, and on the other hand, no one is to be despoiled of his own thing unless the debt is established. - The second opinion judges that all things are to be arranged in proportion to the doubt. Marres, Ballerini, Lehmkuhl defend it. Lehmkuhl (I, 1147) explains the reason of this opinion thus: the value of that debt is in the peaceful possession of neither, neither of creditor nor of debtor, but is a thing concerning whose possession and property each contends with the other; hence, in proportion to the doubt, it is to be divided between the litigants. - Finally, the third opinion, which is that of St. Alphonsus (I, 34; H. Ap., I, 20), affirms that a debtor who truly doubts whether he has paid must pay the whole. Cf. also III, 700; H. Ap., X, 120. Lugo, Suarez, Vasquez, Sanchez, and others teach this opinion. The reason: the creditor, who is in possession of his credit, has a certain right to recover the whole. If the debtor, who doubts about payment, refuses to pay, he always exposes himself to the danger of injuring the creditor's certain and earlier right; which cannot be done, as we said in n. 84. For in doubts of a perilous fact, the safer thing must be followed, although our liberty is in some way restricted.

We said: 1. Who truly doubts. For the debtor would not be held to paying if, from things ordinarily or contingently by law occurring, he believes with moral certitude that payment has been made. Presumption will greatly assist here in practice.

He must pay the whole, namely in the case in which he alone doubted. But if the creditor himself also doubted concerning his right, the debtor would be held only to a part, in proportion to the doubt, because possession on each side is weak. "Nevertheless Laymann adds that he would not dare to condemn the creditor if he received the whole" (I, 34).

Note. The reason adduced by the holy Doctor is directed against the two contrary opinions, which for this reason are rejected by us. The first opinion especially does not appear safe. Lehmkuhl (l. c.) rightly says: "There are some who, in the case of doubtful payment, dispense from every further obligation; - which cannot be sustained by solid reason."

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. II, ARTICLE II: On the Unjust Damager

We must treat: 1. of the unjust damager in general; - 2. of various damagers in species.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. II, Art. II, § 1. ON THE UNJUST DAMAGER IN GENERAL

n. ¶948.

An unjust damager is said to be one who injures another's right, or harms his neighbor in goods, without thence becoming richer of himself or directly.

PRINCIPLES. I. An unjust damager is held to restore an equivalent price, both of the thing damaged and of the other damages which have come from his action and were at least confusedly foreseen by him. The reason is that the injured owner must be made wholly unharmed, according to equality (cf. n. 931). Yet injury is to be estimated not from damage only, but also from the will of the agent (n. 724).

n. ¶949.

II. In order that a damaging action induce an obligation of restitution from the law of nature, a threefold condition is required, namely that the action be strictly, effectively, and formally unjust; and these three things are altogether certain. These are to be explained part by part (cf. Lugo, disp. 8).

Condition 1. It is required that the damaging action be strictly unjust, that is, that one's neighbor has been despoiled of some thing to which he has a strict right. The reason is that the obligation of restoring, as we have already often said, arises from the violation of commutative justice alone (III, 547).

It is explained: 1. The strict right which can be injured is either a right in a thing or a right to a thing, which supposes a legitimate title. You do not have a right to all things to which your neighbor, in conscience, is obligated either from charity or from religion, namely a vow.

He violates a strict right who takes away the thing of his neighbor, although he himself abuses it for sinning (see nevertheless n. 1020); indeed although he received it as remuneration, a pact concerning a shameful thing having preceded (n. 1036). Cf. Lehmkuhl, Cas. consc., n. 691.
He violates a strict right who inculpably indeed has placed an action harmful to another, but culpably does not impede it from proceeding; for example, if someone does not extinguish a fire applied by himself without fault to another's houses; or does not warn a buyer after he has noticed that he gave poison for a remedy (III, 564, 994; VI, 621). Therefore there is an obligation of restitution.
Nevertheless a damager is not held to restitution who had the right of placing an action harmful to another. For the Rule of Law, Law 151, de Reg. Jur., favors him: "No one does damage, except because he does that which he does not have the right to do." Thus a merchant is not unjust who sells at the lowest price, although he injures other merchants; nor a proprietor who turns waters from his own field into another course harmful to his neighbor, lest he himself suffer gravely; nor a smith who sells a sword to a homicide, lest he himself perish by death. - But otherwise, if actions of this kind are placed without a just cause (III, 584, 697). Similarly, the owner does not act unjustly who digs a pit on his own estate, although he intended that an enemy, whom he knows sometimes passes through there illicitly, should fall and break his leg. Lehmkuhl, Cas. consc., n. 672. Nevertheless charity requires that the enemy at least be warned in general.
He is also not held to restitution who has injured charity alone, for example if you were conveniently able to impede the burning of another's house and were unwilling; or religion alone, as if you neglected your vow; or piety, for example if you did not feed your needy parents; or legal justice, if, for example, you denied a crime as accused or witness, lest your own or another's goods be applied to the treasury; or distributive justice, if, for example, by distributing alms left by legacy to the poor, you neglected the poorer. And the same must be said of every debt which does not arise from commutative justice (III, 547, 583).

Condition 2. It is required that the damaging action be effectively unjust, that is, a true and efficacious cause of the damage. The reason is clear: for only the author of damage is held to repair it. Therefore it is required: a) that the damage has truly been inflicted; for damage merely willed, just as also that of which you indeed placed the cause, but which another impeded, for example in a fire made by you but extinguished by another, brings no obligation of restitution; b) that the damage has emanated from your action as from its proper cause; for there can be no obligation of restitution unless the cause of the damage is established, and the true influence of this cause into the damage (III, 562, 584; cf. II, 43, 45).

Hence: 1. It does not suffice for the obligation of restitution that injury without damage has intervened. Thus, he who committed adultery without the damaging of another is held to no restitution in conscience, although he can be compelled by a judge to make satisfaction for the injury (III, 556).

The occasional cause of damage does not suffice, because it is not an efficacious cause, but only the occasion of an efficacious cause, that is, at whose presence the principal cause acts. Hence, if by occasion of a theft or homicide perpetrated by you, another has been accused and condemned, you are not held to repair his damage. - And the same holds even if you foresaw this or even intended it, unless the circumstances of the action were such that they proximately and morally influenced the imputation against the third party, say if you killed clothed in the garments or arms of Paul (III, 635). - In this last case the guilty person is held from justice to denounce himself, or at least to turn suspicion away from the accused; otherwise he would be held from charity alone. - Hence also, if, by occasion of a violated sacramental seal, Peter has learned the author of a theft, so that through proofs and indications he can reclaim his good before the judge, he, Peter, although he sinned by listening to the thief's confession, is not the efficacious cause of the damage which comes upon the thief from the sentence of the judge. Linz. Quart. Schr., 1906, p. 829. Ami du Cl., 1905, p. 971, certainly otherwise. Cf. the things to be said in n. 1188.
A cause without which the effect would not occur does not of itself suffice; for example, if you did not return the sword, another would not be killed: from this you do not become the efficacious cause of the damage.
A remote and accidental cause does not suffice; for a cause of this sort does not of itself and directly influence the damage, but through some unforeseen and improbable accident; and therefore it cannot be called the efficacious cause of the damage (III, 632). Now damage is judged to follow by accident when for the most part it does not arise from the cause posited, or even could not arise from that alone without the concurrence of other causes.
Likewise he is not held to restitution, according to the more common and more probable opinion, who by his bad example has induced others to inflict damage. For bad example is not properly a cause positively influencing the damage, because of itself it does not tend to this, that it impel others to doing the same thing; but it is a mere occasion at whose presence others, of their own accord, take up the thought and counsel of inflicting damage. See the things said above under 2. - But it must be said otherwise if the example should put on the nature of counsel or mandate, for example if the leader of soldiers began to plunder (II, 44).

Note. a) According to grave authors, sometimes a cause which ordinarily influences damage by accident is considered as a cause causing damage of itself, if it is placed solely with the intention of harming. Causes of this sort would be, for example, to steal something small from a miser so that he may become sick; to place a snare in a forest so that an enemy, rarely passing through, perhaps may bring evil upon himself; to kindle a fire in a remote place so that, if perhaps a wind arises, the granaries of the enemy may be burned. - Nevertheless it is not to be denied that this theory concerning the efficacy of intention with respect to action does not please all, as we noted in n. 727. See Lehmkuhl, Cas. consc., n. 713.

b) Since attention should rather be paid to the action considered in itself, it follows that if someone culpably placed the cause of damage and afterward, led by repentance, tried to impede the damage, but in vain, he is nevertheless held to restitution. For retractation takes away fault before God and contumacy before the Church (n. 1264), but it does not change the natural influence of the action. - Except if it is a question of counsel, whose influence revocation takes away (n. 982). Cf. St. Alph., III, 559; VII, 40.

Condition 3. It is required that the damaging action be formally unjust, that is, theologically culpable.

For a twofold fault is distinguished, namely theological and juridic.

Theological fault is the omission of ordinary diligence which the matter demands and which is customarily employed by the timorous in their own office; and indeed a voluntary omission, whether in itself or in its cause. According to the degree of the damaging, it constitutes sin, whether grave or light.

Juridic fault is the omission of diligence required by positive Law or by the nature of the contract for forestalling damages, although in the omission no theological fault intervenes. This omission is called lata fault if the diligence which men commonly are accustomed to employ in a similar business is omitted; light, if the diligence which diligent men, as a good father of a family, employ is omitted; very light, if the diligence which the most diligent put forth is omitted (III, 549). - Juridic fault becomes theological fault only then when due diligence is advertently omitted; because, when there is no advertence, not even in the cause or in a confused way,

there is lacking consent of the will into the damage, or the mind of harming. - Very often broad juridic fault has theological fault as its companion.

Therefore the sense of the third condition here is: In order that there be an obligation of restitution, there is required, on the part of the one causing damage, broad juridic fault placed advertently.

It is proved: "In order that conscience remain obligated, it is necessary that the delict have been perpetrated in conscience" (H. Ap., X, 39). Thus from natural Law.

Hence there is no obligation of restitution, at least before the sentence of a judge: a) If you killed an enemy whom, in killing, you thought to be a wild beast, even if you rejoice after the fact. - b) If a thief, by occasion of the theft, indeed efficaciously, but beyond all advertence, inflicted a new damage, for example because by overturning a lamp he excited a great fire. - c) If a maidservant from merely juridic fault breaks the crystal vessels of the owner. - d) If an industrial man omitted in his workshop the slight precautions prescribed by law, while ordering all else prudently, and a great misfortune occurred (Lehmkuhl, Cas. consc., n. 665). - Some authors indeed judge that there is an obligation of restitution if someone, in doubt whether damage may come upon his neighbor from his action, omits diligence required only by law. Yet this obligation is not established (III, 551).

Note. 1. From merely juridic fault there sometimes arises an obligation of restitution; and this can happen under a twofold head: a) By force of positive law, after the sentence of a judge. Thus a judge can justly condemn you to the reparation of damage truly inflicted by your animals or by boys committed to you, without theological fault;¹ and such a sentence obliges in conscience from legal justice (cf. n. 192). Yet the law itself does not oblige before the sentence, unless theological fault was present, as is commonly taught (cf. n. 933). b) By force of an express convention in contracts, or in fulfilling offices; for you can often justly obligate yourself even concerning a fortuitous event, as will be said in its place (cf. n. 1162).

We said by force of an express convention, in contracts; for Lessius, Lugo, and others teach very probably that it is not equitable to oblige someone in conscience to a grave penalty, without grave fault of his, whenever it is not established that he wished to subject himself to juridic fault alone (III, 554). - The same reason holds for quasi-contracts, or fulfilling offices. Wherefore no one obliges physicians, advocates, confessors, and theologians to restitution from juridic fault alone; for if the matter were otherwise, no upright and timorous man would wish to discharge these offices, which would fall to the damage of the republic (III, 555). See nevertheless what is to be said in n. 974.

From venial theological fault, sometimes, although grave damage is truly present, there arises no obligation of restitution: if namely the theological fault is venial by reason of inadvertence or indeliberation. Thus the more common and more probable opinion. An obligation of restitution under grave sin is not induced, because such an obligation does not have proportion with light fault; not under light sin, because a light obligation does not have proportion with grave matter; so much the more because fault imperfectly deliberated cannot induce a perfect obligation, just as in contracts and vows an obligation does not arise from consent not fully deliberated.²
Finally, all know that theological fault which is venial by reason of the damaging obliges to restitution under light sin (cf. n. 927).

It is added, 4. that these three things be altogether certain. Doubts concerning a damaging action can be moved: a) before the fact; concerning these antecedent doubts we are not speaking. All know that an action is licit to no one concerning which one antecedently and positively doubts whether it is unjust or not (cf. the things said in n. 81). b) After the fact, that is, subsequently to the damaging action already placed. But the object of doubt in the case can be either the existence of the damage, or the efficacy of the action, or its injustice taken objectively, or the theological culpability of the agent; and we say: as long as these doubts have not passed into certitude, there is no obligation of restitution. The reason is that, where it is a question of goods of fortune, no one ought to be deprived of his certain right unless it is established that the right has been lost (nn. 44, 850). Compare St. Alph., III, 562, 658; Conf. dir., X, 20.

Yet a twofold exception must be admitted: 1. If several have acted by common counsel, and afterward a doubt arises in what degree each concurred. 2. If someone inflicting damage notices that, by his action, he is the cause why the author of certain damage becomes uncertain. Cf. n. 963, 2.

n. ¶950.

Special question: On error in damaging.

In the matter of damaging, there can be a twofold invincible error: one concerning the object, the other concerning the person.

I. ERROR CONCERNING THE OBJECT. If someone thinks from invincible error that the damage inflicted by him is much less than it really is, he is probably not held to restoring except in proportion to the known damage. The reason: that damage which is not known, at least in a confused way, is not judged willed.

Thus, therefore, he who throws into the sea another's gem worth 100 aurei, thinking it to be worth only 10, must restore only 10 aurei (III, 613). See nevertheless the note to be placed below.

II. ERROR CONCERNING THE PERSON. If someone, intending to harm one person with any other excluded, harms another by invincible error, he probably cannot be obligated to restitution in the internal forum before the sentence of a judge. The reason is that it is not enough that the damaging action be unjust, but it is required that it be formally injurious toward the one damaged; and therefore error concerning the person is a substantial error.

Therefore if someone, wishing to kill Caius, kills Titius; intending to burn the house of an enemy, burns the house of a friend, etc., he will not be constrained to restitution. Thus St. Alphonsus (III, 628, 629), Lugo, Croix, and others.

Another probable opinion is given concerning this question. Besides Bonacina and Haunold, recent authors defend it, such as Lehmkuhl, Vermeersch, Noldin, Tanquerey, Schindler, Pruner. They affirm that in the case there is an obligation of restitution, because, they say, that action is unjust, an efficacious cause of damage, and theologically culpable, and error concerning the person is only accidental. These arguments are indeed not slight; nevertheless the reasoning of our holy Doctor is not to be despised, which even the adversaries concede; hence the possessor is to be favored.

Note. Yet in each mode of erring there is an obligation of restitution: a) If the damager was actually so disposed in soul that, even if he had known, nevertheless he would have inflicted the damage; because then ignorance was not the cause of the damaging. b) If he has been condemned by a judge; because in doubt one must stand for the judge (III, l. c.). Cf. Genicot, I, 522; Linz. Quart. Schr., 1905, p. 890; Ami du Cl., 1905, p. 984.

…and 116 more passages — all of them are listed on the topic page.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 137 passages

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION

SECTION I.

ON RESTITUTION IN GENERAL.

It must be treated 1° concerning the obligation of restitution; 2° concerning the roots of restitution; 3° concerning the circumstances of restitution; 4° concerning the causes excusing from restitution.

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 II: ON THE ROOTS OF RESTITUTION

n. ¶720.

- The roots of restitution are called the causes from which the obligation of restoring arises. But they are taken from a threefold head, namely 1° from acceptance of another's thing; 2° from unjust damaging; 3° from unjust cooperation, which nevertheless, as to the thing, falls back into one or the other of the preceding.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, ARTICLE I: ON THE ACCEPTANCE OF ANOTHER'S THING

n. ¶721.

General Principle. - The owner alone of the thing has per se the right of possessing it, nor does he lose dominion of the thing into whosever hands it may at last come. - It is said, per se; because any other possessor, even one of good faith, has the right of possessing the thing only by accident and from invincible error. - But from this general principle these four very well-known axioms flow of themselves.

1° The thing cries out for its owner, that is, to the owner belongs the strict right of pursuing his thing, in whatever state and in whosever possession it may be, by a real action, which they call juridical vindication.

2° The thing fructifies for the owner; because use and fruition are necessarily included in the idea of perfect dominion.

3° The thing naturally perishes for the owner; because, with the object of dominion disappearing, dominion itself also vanishes. If nevertheless it still exists in an equivalent, the owner can seek that equivalent by a personal action.

4° No one ought to be enriched unjustly from another's thing; in other words: The measure of restitution is the quantity of another's thing detained without cause. The reason is clear; for to the owner alone of the thing belongs the receiving of utility from the same.

But these principles, besides the fact that sometimes according to diverse laws of places they receive diverse application, are moreover modified according to the diverse condition of the possessor. For one can possess another's thing either with good faith, or with bad faith, or with doubtful faith. Therefore it must be said 1° concerning the possessor of good faith; 2° concerning the possessor of bad faith; 3° concerning the possessor of doubtful faith.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. I, § I. On the Possessor of Good Faith

A possessor of good faith is he who invincibly does not know that the thing possessed by him is another's, or prudently judges that it is his own, for example because he acquired it by a title of itself transferring dominion, suppose inheritance, legacy, donation, or purchase. But it is supposed that he has not yet prescribed the thing possessed; for otherwise he would no longer be the holder of another's thing, but of his own.

n. ¶722.

Principles. - I. A possessor of good faith, as soon as he knows that the thing possessed by him is another's, is bound to restore it to the owner, still existing in whole or in part or in its advantage; otherwise he retains another's good while the owner is reasonably unwilling, and therefore violates his strict right. - Thus all.

II. A possessor of good faith is bound to absolutely nothing, if, while good faith endures, he consumes, loses, or even destroys another's thing, provided he has not become richer from it. For he is not bound by reason of the thing received, which no longer exists; nor by reason of unjust acceptance, consumption, or destruction, because he possessed the thing in good faith. This is valid also if he deliberately destroyed the thing, or if it perished from his negligence. The reason is that he inflicted injury upon no one by destroying or neglecting the thing which he believed to be his own. It is confirmed also by positive law. For thus by Roman Law: "He who neglected as if his own thing is subject to no complaint."

I said: provided he has not become richer from it; because that in which he was made richer would succeed in the place of the thing. But it is against natural right that someone be enriched with the injury of another, according to rule 48 of Law in the Sixth. - In doubt whether he has become richer, he is bound to nothing. L. IV. 603; H. A. Tr. X. 55.

n. ¶723.

Questions. - Query 1° Is a possessor of good faith bound to restore the fruits which he perceived during good faith?

Resp. The fruits must be distinguished. For 1° some are natural, which by the benefit of nature come from a thing without any estimable work of man, as grasses, etc. 2° Others are industrial, having arisen from man's work without any estimable productive concurrence of the thing. 3° Others are mixed, or partly natural and partly industrial, as crops. 4° Others are civil, which are not fruits properly so called, but are held as such by Law through a certain analogy with true fruits, as the price of leasing a house.

I say: 1° A possessor of good faith is not bound to restore merely industrial fruits (under which probably also interest by occasion of a loan is included. L. IV. 759), since by reason of industry they belong to the possessor.

I say: 2° From natural right a possessor of good faith must restore all other fruits, whether natural or civil, still existing, and, insofar as he has been made richer from them, even those consumed, expenses and labors nevertheless being deducted. The reason is that from natural right fruits belong to him to whom the fruitful cause itself belongs, since they come from the thing itself, according to the axiom: The thing fructifies for the owner. (g) p. 481.

n. ¶724.

- Query 2° To what is a possessor of good faith bound if he has given another's thing to another?

Resp. He is bound to nothing if he has not been made richer at all, as follows from the things said above in principle II. Otherwise he must restore that in which he has been made richer, as is established from principle I.

Query 3° Once the donation has been made and the error detected, is he bound to warn the donee, that he restore the thing to the owner, or the owner himself, that he may be able to recover his thing?

Resp. He is certainly bound from the general principle of charity, if he can furnish this without grave damage to himself.¹ Whether also by reason of justice? There are those who affirm it on account of the obligation which the author of even merely material injustice incurs. See n. 749. q. 3°.

n. ¶725.

- Query 4° To what is a possessor of good faith bound if he has sold to another a thing bought from a thief?

Resp. 1° In the case of eviction, that is, if the owner has vindicated his thing from the buyer (n. 988), the seller is bound to return the price to the buyer. The reason is that the sale is altogether void from natural right. Therefore, when eviction intervenes, the contract must be resolved, and the buyer acquires recourse by the fact itself against the seller; for by handing the thing over to the buyer he implicitly obligated himself to repair the damage, if perhaps eviction would be future. Except: 1) If the seller has not been made richer from the price (in the sense to be declared below n. 989). 2) If the profit which he perceived by selling is the fruit of industry. 3) If in good faith it was expressly agreed concerning not restoring the price.² - The same must be said if another's thing has passed into the hands of various possessors by an onerous title. For if the last possessor is compelled to return the thing to the owner, both he and the individual buyers have the right of pursuing their seller, so that they may recover the price paid. - Yet this is not valid, that is, the seller, in no respect made richer from it, is not bound to restore the price to the buyer if the buyer spontaneously, or not evicted, restores the thing to the owner and thus impedes the seller from being able to recover his price.¹

Resp. 2° Outside the case of eviction the seller is bound to nothing unless he has been made richer from the sale. The reason is that the sale of another's thing with good faith is not held in law as altogether void. For although through it dominion of the thing is not transferred to the buyer, dominion of the price is nevertheless transferred to the seller. And this man indeed, even if later he detects that the thing sold is another's, in the case in which he can no longer recover the price for which he bought the thing, is not bound, with grave damage to himself, either to warn the owner so that he may be able to recover his thing, or to indicate to the buyer that the thing is another's. The reason is that he no longer has the thing, nor was he the formal cause that the owner was deprived of his thing.² Cf. what was said n. 724. q. 3°.

n. ¶726.

- Query 5° To what is a possessor of good faith bound if he has sold to another a thing received gratuitously?

Resp. 1° In the case of eviction the same resolution is valid which was given in the preceding case, n. 725. Resp. 1°.

Resp. 2° Outside the case of eviction, when namely the thing cannot be recovered by the owner, whether because the last possessor consumed it, or because he no longer appears, the seller, according to the common opinion, must pour back to the owner the whole price received from the buyer, if and insofar as he has been made richer from it. The reason is that one truly made richer from the price suffers no loss on its occasion; while on the contrary the owner, unjustly despoiled of his thing, is compelled to undergo the whole damage of the thing. Hence this man must be preserved harmless from the profit which the seller perceived without any title.³

n. ¶727.

- Query 6° If someone in good faith bought another's thing at a moderate price and sold it at a greater price, is he bound to return the profit perceived to the owner?

Resp. 1° Negatively, if that profit is to be attributed to extraordinary industry, for example if he went to another place by notable labor in order to find a suitable occasion of selling the thing more dearly, etc. The same must be said if, during the time of detention, the thing was made better by the care of the holder.

Affirmatively, on the contrary, if the thing increased from its own nature or from the common estimation of men, but not from the industry of the holder, because in that case it increases for the owner.

Resp. 2° In other cases, however, it is controverted. Some affirm it, because the possessor has been made richer from that profit. - Billuart, etc.

But others deny it more commonly and more probably, because that whole profit seems to be the fruit of the possessor's industry. - Thus Lugo,¹ and others sufficiently commonly, as Billuart admits.

n. ¶728.

- Query 7° To what is a possessor of good faith bound if he has sold another's thing and it perished in the hands of the buyer?

Resp. 1° If he had the thing by an onerous title, more probably he is bound to nothing. For 1° he is not bound by reason of the thing, since he no longer has it; 2° nor by reason of damage, since he is not the culpable cause why the owner can no longer vindicate it for himself; for he bought and sold in good faith.

Resp. 2° If he had the thing by donation, it is controverted.

The 1st Opinion teaches that the price must be restored to the buyer. For the seller cannot keep it, positing that from it he has become richer. From elsewhere he is not bound to return it to the owner, because the thing perished for the owner. Moreover, if the first possessor was of bad faith, as often happens, he is bound concerning the value of the thing toward the owner. From elsewhere, however, unless by law the sale of another's thing was perhaps valid, the buyer has the right of recovering his money. - Bouvier, Carriere, etc.

The 2nd Opinion holds that the price, still existing in itself or in an equivalent, must be restored to the owner. The reason is that, since he has been unjustly despoiled of his thing, he must be made harmless. But since the thing no longer exists, it is equitable that he receive that by which the thing is represented. But it is represented by the price which the seller has. Besides, the nullity of the sale in no way harms the buyer; because it harms him no more than if the contract were valid. But if it were valid, he could repeat nothing. Except if the thing would equally have perished with the owner, for example from an intrinsic defect; for then it would have perished for him.

The 3rd Opinion says that the seller can retain the price for himself, because he does not have to restore it either to the owner or to the buyer. And 1° not to the owner, because the thing perished for him in every case; 2° not to the buyer, because the money which the seller received does not precisely represent the thing, but rather the obligation which he took upon himself of preserving the buyer harmless in the case of eviction. But the buyer was not evicted; therefore the seller can retain the price by reason of an abandoned thing. This opinion counts few patrons, and does not seem sufficiently probable. See S. Alph., L. IV. 609. under 5.

Since the 1st and 2nd opinions are equally probable, the seller can restore either to the owner or to the buyer. Except: 1) if the thing would equally have perished with the owner, for example from an intrinsic defect or from age; for then in reality it would have perished for him; 2) if the owner had already been preserved harmless by the thief or another possessor of bad faith. In each case the buyer alone would have right.

n. ¶729.

- Query 8° What must be done if among various possessors of good faith one of bad faith was present?

Resp. That circumstance changes in no respect the condition of the other possessors, whatever place in the series that possessor finally occupied. For the same obligation lies upon each one toward the owner as if that possessor had been of good faith, since his bad faith in no way redounds to the others. But that man must be treated as will soon be said concerning possessors of bad faith.

Query 9° What must be done if a possessor of good faith indeed detects that the thing possessed by him is another's, but the owner does not appear?

Resp. Concerning this it must be established as concerning a thing found. - Recall what was said n. 655. 656.

n. ¶730.

- Query 10° Can a possessor of good faith subtract necessary expenses which he has undergone in conserving or increasing the thing?

Resp. He can deduct all necessary expenses; indeed also useful expenses, namely those which conserve the thing and make it better; otherwise the owner would receive more than what is his own. But not pleasurable expenses; because it is not equitable that the owner pay expenses which bring no utility to himself. Understand according to the things to be said n. 732. III.

But among expenses there are not to be computed fortuitous events, nor damages caused by accident. Thus, for example, if in cultivating another's field your horses have perished, the value of the horses cannot be deducted, but only the estimation of the work done by the horses for the cultivation of the field.

n. ¶731.

- Query 11° Can one who in good faith bought a stolen thing return it to the thief in order to recover the price?

Resp. 1° Negatively, if the owner appears asking from him his own thing; for then he must return it to him, even with the loss of his own price, because by natural right the owner can occupy his own thing wherever he finds it. Yet an action is given to the buyer against the thief. (h) p. 481.

Resp. 2° If the owner is indeed known, but unaware of the thing, the buyer, with another way of indemnification shut off to himself, can send the thing back to the thief, so that he may recover the money; both because the buyer is not bound to preserve the thing for the owner with his own damage, and because no one is forbidden an action which of itself is necessary and directed to repairing his own damage, although indirectly and by accident damage may come from it to another.¹

Resp. 3° If the thief, or another seller, does not appear, or does not wish to return the money, the buyer, the owner being known, cannot sell the thing to others, nor convert it to his own uses so that he may preserve himself harmless, because he is not the owner of the thing; but he must return it to the owner, notwithstanding the loss of the price. But he preserves recourse against the seller. But if he cannot find him, the damage must be undergone by himself. (h) p. 481.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. I, § II. On the Possessor of Bad Faith

A possessor of bad faith is he who knows that the thing which he accepts or possesses is not his own.

n. ¶732.

Principles. - I. A possessor of bad faith must restore the thing itself in individual, if it exists, or in equivalent if it does not exist, and besides, if you except industrial fruits, all that in which he has been made richer, as was said concerning the possessor of good faith.

II. He is bound besides to compensate every damage inflicted upon the neighbor from unjust acceptance, even if he has not been made richer. The reason is that by an acceptance formally unjust and per se efficacious of damage, he violated the neighbor's right. But commutative justice requires that the violated right be repaired integrally. Therefore...

III. He can nevertheless retain all industrial fruits and deduct expenses both necessary and useful; indeed even merely pleasurable ones, where they can be separated with the substance of the thing untouched, unless in penalty of the delict he has been condemned to lose the expenses.²

n. ¶733.

Questions. - Query 1° Is a thief who has stolen a thing otherwise certainly about to perish, for example by fire, bound to restitution?

Resp. Affirmatively, the expenses made with the price of the work used to free the thing from danger nevertheless being deducted. The reason is that that thing did not cease to belong to the owner, although it was exposed to the greatest danger. Except, if he destroyed the thing; or even probably, if the thief consumes a thing remaining in certain danger, for example edible or drinkable things already about to perish by fire; because fault alone does not oblige to restitution where damage did not intervene.¹ - Lessius.²

n. ¶734.

- Query 2° Is the thief bound to restitution if the stolen thing perished with him?

Resp. When the thing perishes, the obligation of restoring remains or ceases according as, while it perishes, the theft should still or should not be called the efficacious cause of the damage; for fault alone does not produce an obligation of restitution where in fact damage has not followed from it. Hence:

1° The value of a thing perishing with the thief, whether by his own fault or another's fault, or even by fortuitous event, must be returned whenever, if left with the owner, it either would not have perished, or would not have perished except by the injury of another; for then the cause of the damage truly is the thief, who besides by stealing the thing took upon himself its whole risk.³

2° Resolve the opposite if, without anyone's fault, it perished with the thief, whether from its intrinsic defect or by fortuitous event, whenever it would equally, namely at the same time and by a common danger, have perished with the owner; for then not the theft, but the defect or the fortuitous event itself is the efficacious cause of the damage. - Thus commonly.⁴ Lugo,⁵ against Concina, etc.

I said: a) without anyone's fault; for if the thief or another consumed or destroyed the thing, even one certainly about to perish soon in a common danger, before that danger, the theft is again rightly judged the efficacious cause of the damage. Except probably if this common danger, in which the thing, without hope of salvation, would have perished even with the owner, was already previously known to threaten; for the thing, considered in that state and previously known, becomes of no value or certainly of very slight value to the owner. See n. 733.

I said: b) if the thing would have perished at the same time with the owner; because if it would have perished earlier, then it was saved for the owner from the earlier danger, and had to be restored to him. And therefore by not restoring, the thief remained the efficacious cause of the damage. Resolve the same if it would have perished later with the owner, because the personal action of repairing damage is not taken from the owner by a following danger. Nevertheless probable in this case is the opinion of S. Alph.,¹ excusing a thief from restitution if the thing would have perished equally with the owner in the same common danger, and in that case holding him bound only, by reason of delay, to restore the fruits which the owner would have perceived from the thing. The reason is that delay was indeed the cause why the owner is deprived of fruits, but not why he is deprived of the thing, of whose loss the danger was the cause.²

I said: c) by the same common danger, because where the danger is diverse, even if simultaneous (fire and inundation), the destruction is rightly attributed to the thief, since without his theft the thing would not have been exposed to this danger.² (i) p. 481.

n. ¶735.

- Query 3° To what is a possessor of bad faith bound when the thing has had various value during the time of detention?

Resp. Let the general rule be: A possessor of bad faith should not become richer from another's thing. - The thing, if it increases, increases for the owner. - Let the damage unjustly inflicted be compensated to the owner. - Hence:

1° A thing made worse with the thief (a younger horse taken, but now growing old) must be restored according to the value which it had when it was taken.

2° If the thing increased with the thief (a lamb into a sheep), it must be restored as it increased, expenses (n. 732. III.) being deducted.

3° If the thing increased with the thief and afterward decreased, the thief is bound to return the whole greater price, even in that case in which the owner would have consumed the thing at the time of lesser price; for the thing increased for the owner, and the thief, by not restoring then, was the cause of that greater damage. H. A. Tr. X. 78.

4° If the thief consumed the thing at the time of lesser price, although it was to be preserved by the owner until the time of greater price, he is not bound to restitution of the increase, provided he restored the price at that time at which the owner could have bought a similar thing for himself at that same price.¹ See n. 738, 3°.

5° If the thief sold or consumed, at the time of greater price, a thing not to be preserved by the owner, he is bound to return that price to the owner, although the owner would have done something else with the thing; because the thing increases for its owner.²

In practice, since nearly all the aforesaid circumstances do not become known, for the most part only compensation of the value which the thing had at the time of theft is to be urged.

n. ¶736.

- Query 4° Besides the stolen money, must the thief also restore INTEREST (the interest)?

Resp. Affirmatively, if it is established or presumed - as today, if the sum of stolen money is sufficiently notable, it almost ought to be presumed - that the owner would have perceived that gain, because this man must be made altogether harmless with respect to the possessor of bad faith. Otherwise, however, probably in the other hypothesis, because it is not established that the owner has a right to that increase.

Query 5° Are they bound to restore who, in order to receive alms, pretend that they are poor; or true paupers who say that they are upright, when they are not?

Resp. to the 1st. Affirmatively. The reason is that these have no right to alms; for those who bestow them intend to assist true paupers only. Therefore restitution must be made either to the giver, or at least to true paupers. More probably it suffices if restitution is made to paupers. Yet restitution does not seem to be urged if it is a question of very modest alms, such as are given door to door; because those bestowing them are less unwilling with regard to them. - Thus commonly.³

Resp. to the 2nd. Negatively, generally, because need alone, not uprightness, is the condition to which the donor attends or is presumed to attend. - Thus commonly.

n. ¶737.

- Query 6° What if another's thing has passed through the hands of several possessors of bad faith by donation or sale?

Resp. 1° As to the thing, it must be restored by him who still holds it, or has changed it into another value, or has consumed it, or in any way lost it. But if this one is lacking, the robber is bound. But if neither has satisfied his debt, the others must pay the price of the thing by equal portions. Finally, in default of the rest, each one is bound to the whole.

Resp. 2° As to the fruits and damages of the thing, individuals are bound to compensation for the part of the time during which each one detained the thing. But if the others do not compensate for their part of damaging and fruition, reparation of the whole damage lies upon individuals; namely, each one of them is bound to repair the damages, not those which followed before he himself became possessor of another's thing, but those which followed afterward. - Thus commonly.

Query 7° Can he who knowingly buys another's thing from a thief return it to him in order to recover the price?

Resp. It is controverted. S. Alph.¹ affirms; because although this man sinned by buying the thing in bad faith, yet after the purchase he has a right, not otherwise than a possessor of good faith, to rescind the contract. Nor does he, by returning the thing to the thief, place it in a worse condition than that in which he himself found it, from which besides he was certainly not bound by justice to free it.

n. ¶738.

Resolutions. - 1° A possessor of bad faith is bound not only to compensate the damage emerging for the owner from the lack of his thing, but also every profit ceasing in confused manner at least foreseen; namely not only that which the owner in reality lost on account of the lack of his thing, but also that which he would have perceived in a licit manner.

2° He who transported stolen grain to another place, where he sold it for more than the owner was going to sell, is not bound to assign the increase of price, as being sought by his own special industry (n. 732. III), to the owner.² - For the same reason, if he sowed the same grain in his own field, he is bound only to return similar grain, so that the owner be preserved harmless. Likewise he who places another's eggs under his own hen to be brooded over is bound only concerning the value of the eggs.

3° If someone has stolen wheat which the owner was preserving to be sold at a time of greater price, and consumed it at a time of lesser price, he is bound to restore that price which the owner was expecting, unless perhaps restitution is made so early that the owner can buy similar wheat at the lesser price and reserve it without inconvenience until the time of greater price.

4° If someone has killed a stolen lamb, or has consumed another thing of this sort taken by theft, he is bound to pay only that money (at least more probably) which corresponded to the value of these things at the time of killing or consumption, unless perhaps the owner could not at once have bought a thing of the same value with the same money, and at the same time wished to preserve that thing so that he might obtain a greater sum of money from its sale.¹

5° The assessment of the quantity to be restored, on account of the cause alleged in this number under 1°, often can be made only according to the judgment of a prudent man. Besides, when it is a question of theft of a small and very common thing, as of a hen, etc., this alone, or its value, must be returned; for there can be no question of damage emerging or profit ceasing, while the owner could easily buy a similar thing. (j) p. 481.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, Art. I, § III. On the Possessor of Doubtful Faith

A possessor of doubtful faith is he to whom a positive doubt arises whether the thing which he accepts or possesses is his own or another's.

n. ¶739.

Principles. - I. A possessor of doubtful faith, whether he has doubted from the beginning or only in the course of possession, is bound to inquire seriously, so that he may lay aside the doubt. The reason is clear; otherwise he exposes himself to danger of retaining another's thing from his own culpable negligence.

II. If, after diligent inquiry has been made, the doubt perseveres, more probably he can retain the whole thing, if before the doubt arose he possessed in good faith. The reason is that in an equal cause, or doubt, the condition of the possessor is better; and possession begun with good faith creates of itself the greatest presumption concerning the justice of the possession, and gives to the possessor a certain right which, unless it is overcome by other stronger reasons or presumptions, ought to prevail both in the internal and in the external forum. - S. Alph.,² Lugo,³ Lacroix,⁴ Carriere,⁵ and others commonly, against some who say that the thing must be divided according to the proportion of the doubt.

III. If doubt preceded possession, a distinction must be made. For one who began to possess in doubt by despoiling another of his possession is bound to restore the whole thing to the prior possessor when it is not established that this man began to possess the thing in bad faith; because in an equal cause his condition is better, as being that of the possessor. - Lugo,¹ Carriere.²

But one who received the thing by another title, for example of purchase, and after diligent examination still doubts whether he from whom he received it is its owner, must restore, 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 elsewhere does it seem equitable that he be bound to restore the whole, since there is doubt whether the thing is another's. - S. Alph.,³ Lugo.⁴

n. ¶740.

Questions. - Query 1° To what is he bound who accepted some thing in bad faith, thinking it was another's, and afterward doubts whether the thing is his or not?

Resp. He is to be equated to him who began possession with doubtful faith; for the prior false estimation is found, and therefore is not to be attended to in the solution of the case. Therefore weigh whether by his possession he despoiled another or not, and resolve according to what was said in principle III.

Query 2° What if such a possessor neglected to inquire from the beginning, and afterward the owner of the thing can no longer be found?

Resp. More truly, something must be restored to the poor according to the proportion of the hope which the owner could have had of recovering his thing. Generally that hope does not reach half the price, but is of much lesser value.⁵ - Lugo, Lacroix.⁶

n. ¶741.

- Query 3° To what is a possessor of doubtful faith bound if he neglected to inquire and the owner appears?

Resp. Generally, after the beginning of the doubt, he must be treated as a possessor of bad faith; therefore he must be bound not only to return the thing to the owner, but also to repair all damages to him. - Carriere.⁷

He seems to be excepted who began possession in good faith and afterward, when doubt arose, neglected to inquire, thinking that the owner could be found only with greater difficulty; for he would be equated to a possessor of good faith.

n. ¶742.

- Query 4° To what is he bound who occupied a thing possessed even by an uncertain owner, as he knew; likewise he who first occupied a thing while doubting whether it had been abandoned by the owner?

Resp. to the 1st. The thing must be divided equally with the probable owner; for possession favors neither one. Cf. n. 60. 3°.

Resp. to the 2nd. If, after inquiry has been made, no earlier owner of the thing, not even probable, can be detected, he can have the thing as truly abandoned by the owner, and then, after doubt has been laid aside, acquire it for himself by legitimate occupation in good faith.¹

Query 5° Is a possessor of doubtful faith who began to possess in good faith bound to restitution if, after inquiry has been made, he finds that the thing is more probably another's?

Resp. More probably negatively, because from certain possession a morally certain right arises. Moreover, until another proves his certain right, the axiom is valid: The condition of the possessor is better. But the other can prove a certain right, that is, one morally such, only by most probable reasons.²

Query 6° Is a debtor, in doubt concerning the completed payment of a debt, bound to pay integrally or in part?

Resp. See n. 803.

n. ¶743.

Resolutions. - 1° If you have possessed another's thing in good faith, and, when doubt supervened and remained after inquiry, relying upon the principle of possession you consumed it, but afterward the owner unexpectedly appears, you will be bound to restore only that in which you have been made richer.³

Note. - 1) As long as it remains morally possible that a certain owner may afterward appear, the aforesaid possessor ought to be so disposed in mind that, if afterward before the time of prescription the owner is certainly detected, he restore the thing to him, or if he has consumed or alienated it, its price, and this even if he has not been made richer. Thus Lugo⁴ against some. 2) The same possessor ought, if he sells the thing, to warn the buyer concerning the existing doubt and the danger of eviction.⁵

2° They are not to be exempted from restitution who buy things from thieves or fraudulent bankrupts while doubting concerning the legitimate possession of these things, and purposely inquire nothing lest they have certitude of fraud; for these act not with doubtful faith but with bad faith, since affected ignorance is equated to knowledge. Mar. p. 260. n. 47. III.

3° "Croix notes, l. 3. p. 2. n. 562, with Vasq., Laym., Pal., Sanch., Mol., etc., and Roncaglia thinks it not improbable, ... that when a possessor (even one who began to possess with doubt) has had the thing from a possessor of good faith, if afterward diligence becomes impossible, he is bound to restore nothing; for he then legitimately succeeds into all the right of that man." S. Alph. L. I. n. 57. Notat II.

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. II, ARTICLE II: ON UNJUST DAMAGING

n. ¶744.

- An unjust damager is called one who injures another's right and harms the neighbor in his goods, without thereby of itself becoming richer.

A twofold fault is distinguished by which damage can be inflicted, namely theological fault and juridical fault. - Theological fault is that which includes an offense of God, that is, formal sin, whether mortal or venial. - But juridical fault is the damaging omission of diligence prescribed by law, whether this is a formal sin or not.¹

But juridical fault, from the common interpretation of Roman Law, is either gross, or slight, or very slight. Gross fault is the omission of diligence which men commonly are accustomed to employ in similar affairs, as if someone, leaving his workshop for a longer time, leaves the door and chests open, and anyone can easily carry away money or merchandise. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to employ; as if the same man, going away a little, neglects to carry with him the keys of the chest, which it is not at all likely that another, in his absence, will seize for stealing. Very slight fault is the omission of diligence which is usually employed only by the most prudent and most diligent; as if the guard of a house, who when about to go to bed bolts all the doors, neglects to search the individual places, lest perhaps a thief lie hidden.

n. ¶745.

Principles. - I. An unjust damager is bound to restore 1° the whole equivalent of the thing damaged; thus, for example, if someone culpably burns another's house, he must repay its entire price to the owner; 2° the whole equivalent of the damages foreseen besides the damaging of the thing, if any have come from it. Hence, for example, if a craftsman is compelled to omit his accustomed work for some time because you destroyed the instrument necessary to him, and you foresaw this, you are bound to compensate him not only concerning the value of the instrument, but also concerning the profit ceasing.

The reason for this principle is clear from what was said n. 587 and 713. For the injured owner must be made wholly harmless. But for this it is not enough if the damager pays to him the intrinsic price for the thing, when the other has suffered other detriments from the privation of his thing, since he would not recover everything which he lost from the unjust damaging. Nor does it stand in the way that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility perceived concerning another's thing, but from damage inflicted.

n. ¶746.

- II. That a damaging action induce an obligation of restitution, by natural right a threefold condition is required, namely that it be 1° unjust, 2° the efficacious cause of damage and indeed certainly efficacious, 3° theologically culpable.

1° Unjust. For the obligation of restitution necessarily supposes the strict right of another violated. But strict right cannot be violated except through an unjust action, or one opposed to commutative justice, according to what was said above n. 587, etc.

2° The efficacious cause of damage, namely 1° that the action per se influence the damage, so that this is judged truly to follow from it; 2° that it can be imputed to such an agent. The reason for each is clear. For an action can be imputed to no one unless it is his own; nor can the detriment of an action be ascribed to anyone unless his action was the true and efficacious cause of the detriment, physically or morally.

But this happens when an action is placed which from its own nature or from the circumstances has a morally certain connection with damage. Hence 1° a merely occasional cause of damage does not suffice for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on the occasion of theft perpetrated by you, another was accused and condemned, you are held by no obligation of repairing his damage. - Nor 2° does an accidental cause suffice for restitution; for this is one which, considered in itself or with attention to the circumstances, does not have a probable connection with the event, and so is not to be called an efficacious cause. Hence, if you hand a sword to Titius without probable foresight of his abuse of it, you are not guilty of injustice if he perpetrates murder with that sword.

And indeed certainly efficacious; for the obligation of restitution cannot be present unless the cause of it is certainly established.

3° Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless in the same forum an injury has been committed, nor can conscience be bound by an obligation of repairing an injury which it did not itself inflict; otherwise even those sleeping and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. Moreover there is no injury in the internal forum where there is no theological fault; for to injury there is required a will of harming, at least indirect, or some foresight, at least confused, of unjust damage. Therefore, etc.¹

…and 97 more passages — all of them are listed on the topic page.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 51 passages

Ch. II, § B. Concerning Certain Si…, Q. IV, And Concerning Restitution Due for Them

n. ¶4875.

I. The question to be treated. - Sins against external goods are committed by theft, robbery, fraudulence, usury, and other unjust damaging acts, which are prohibited by the seventh precept of the Decalogue and are customarily explained sufficiently in moral theology. In practice, a special difficulty usually arises in the case of restitution; therefore we judge it opportune that this be inspected, especially as regards compensation in material goods.¹ We do not indeed deny that even from injuries committed against other goods, and from other precepts toward the neighbor besides the seventh, there can arise an obligation of restitution; nevertheless in practice, even then the principal obligation is usually reduced to material compensation in real goods, or at least frequently has that joined to it.

¹ Moralists may be consulted where they treat of restitution, especially St. Alphonsus in Th. M., l. III, tr. 5, c. 2; Marc, Aertnijs, Tanquerey, Genicot, Noldin, Prummer, Vermeersch in their manuals; Waffelaert in his work De Iustitia; Reuter, Neo-conf., n. 232-235; Berardi, Praxis-conf.; Aertnijs, Th. P., n. 84-87.

n. ¶4876.

II. Principles and rules to be regarded in the case of restitution. - The confessor ought especially to have these before his eyes:

n. ¶4877.

First of all let him attend to this principle: to dispense in these matters and to concede delay does not belong to the confessor himself, but only to the owner. Hence excuse from restitution or delay is to be defined by sole and true necessity, unless the circumstances were such that the confessor could prudently presume the consent of the creditor to delay, or reasonably interpret the intention of the owner.

n. ¶4878.

Let him diligently ask what is the nature, the adjuncts, and the conditions of the case, so that he can define whether, how, and how much must be restored, how long the injustice lasted, whether it has already been declared in confession, why it has not yet been restored, etc.

n. ¶4879.

When a more difficult case occurs, let him not resolve it immediately, but ask for delay to examine the matter more deeply or even to consult others, and let him enjoin the penitent afterward to return to him. But if the penitent cannot conveniently do this, let him be ordered to consult another learned and God-fearing man; and if he promises that he will do this and shows himself prepared to execute the decision and to perform those things which would be imposed on him, he will be able to be absolved.

n. ¶4880.

If, inquiry having been made, the obligation of restitution remains doubtful or uncertain, it cannot strictly be imposed on the penitent; although sometimes a certain partial compensation to be made from equity can opportunely be advised for the various adjuncts.

n. ¶4881.

If the obligation of restoring is certain and no cause excusing from it appears, but the penitent, although able, raises difficulties, let the confessor warn him that the sin is not forgiven unless restitution is made, because it is no less evil to retain another's goods against the will of the owner than to take them away, since it is a continued taking away; and consequently that the penitent must choose between these two: whether he prefers to undergo the eternal punishment of hell, or rather to lack the thing belonging to another.

n. ¶4882.

When the debtor asserts that he cannot restore either altogether or at least immediately, let the confessor diligently examine the alleged impossibility, and let the one asserting not be believed unless he efficaciously proves it; nor let him be absolved unless he seriously promises that he will restore as soon as he will be able and will make an effort toward this. Namely only grave and ineluctable difficulty is a sufficient cause. Hence the debtor a) is bound to diminish superfluous expenses, to labor insofar as the decency of his state permits, to employ parsimony in food, clothing, and necessary expenses; b) if he objects that he will suffer gravely in reputation, let there be suggested a manner by which reputation may be cared for; c) if there is no sufficient cause of temporary delay, this cannot be conceded; but if there is a sufficient cause of delay alone, definitive remission cannot be conceded; d) if the whole cannot be restored at once, let it be returned by parts as soon as possible.

n. ¶4883.

Therefore let the confessor beware lest he be credulous as to difficulties which penitents of this kind are wont to oppose: for some pretend impotence to restore, but often it is weakness of will rather than incapacity or weakness of powers; others with every effort solicit delay; but let the confessor know that it is not in his power to concede delay, because it is not only illicit to snatch away another's goods but equally illicit to retain them.

n. ¶4884.

Namely, as moralists teach, the following are unworthy of absolution: a) those unwilling to restore when they can do this; b) those not able to restore, but neglecting to obtain for themselves the faculty of restoring; c) those delaying restitution much without an excusing reason, or committing to the heir a restitution which they themselves can do by themselves; d) those able to restore in full and restoring only a part.

n. ¶4885.

But if the penitent certainly is in good faith, either because he believes that he owes nothing, or because he thinks that he is bound only to a part, not to the whole or in solidum, or because he judges it enough that he restore by several payments, although he could do so by one, if there is no probable hope of fruit to follow from warning, which nevertheless is not easily to be presumed, let the confessor leave him in ignorance; but if the penitent doubts or asks, the confessor cannot be silent.

n. ¶4886.

In certain cases he will reasonably be able practically to presume total and absolute condonation, namely as regards children of a family and spouses who have snatched away things not of great value and have now consumed them; likewise for thefts of servants as regards edible and drinkable things, at least ordinary ones, not sold to others but consumed; indeed as regards other things if the master has rebuked or expelled the servant convicted of theft and has said nothing about restitution; likewise concerning small thefts of the poor committed against diverse persons, or against one person but not very frequently.

n. ¶4887.

Ordinarily let him not absolve one who holds another's thing with himself unless he first has restored it, namely on account of the danger in which otherwise he lives of delaying restitution, or of consuming the thing and converting it to his own use. But if someone already seems so constituted and firmly disposed that he is deservedly believed soon to satisfy, he will be able to be absolved, but by fixing for him the space of time within which he is to restore and the manner in which he is to accomplish this; for indeterminate promises easily perish.

n. ¶4888.

But one who, previously warned, did not restore, regularly is altogether to be dismissed for a time, absolution being delayed until he has restored, because although he may say that he proposes restitution, nevertheless there will easily be doubt concerning this disposition, and too much danger of relapsing and of changing the purpose.

n. ¶4889.

III. There are various practical modes or means by which restitution can be made more opportunely, namely:

n. ¶4890.

Through the public or postal course, so that, whether by means of an inscribed letter or by means of an order or check (mandat, cheque), he sends the sum under a fictitious name. But if the sum is owed to some society, it is better, for sufficient security, to write at the same time to the treasurer and to the president or syndicate.

n. ¶4891.

By testament, if the dying person without any infamy can leave a legacy to such and such a person. And if it cannot be done without infamy, it must be seen whether an heir or fiduciary legatee can be constituted.

n. ¶4892.

By a fictitious donation, provided that gifts are not compensated by gifts, and that they bring true profit or utility to the creditor, so that he is truly rendered unharmed: for it would not suffice, for example, that he be invited to drink or eat superfluously, or that sweets be given to him.

n. ¶4893.

By undue labors useful to the creditor, for example by setting vines for a farmer, making a trip with a wagon for a master, whitening either linens or other things for him, laboring beyond what is owed with the master's profit and without pay. This manner is often practical for servants or workers. Nevertheless let mere favors without true utility not be confused with labor.

n. ¶4894.

By alms, whether given to the poor or to priests who will celebrate Masses; nevertheless this is valid only for cases in which either it is impossible to restore into the hands of the creditor, or he must be presumed content with this manner of restoring. Nevertheless let the confessor beware lest he ask alms of this kind for himself or for his own convent. But if the sum is not very great and the debtor is of slender fortune, for restitution he will be able to give alms even of the kind he is otherwise accustomed to give; thus likewise he can remit to some poor debtor of his as much as he is bound to give to the poor: namely it is easier to yield that which one does not yet have than to deprive oneself of that which he now holds.

n. ¶4895.

Through a trustworthy third person. It is not opportune that the confessor spontaneously offer himself for exercising this office of mediator; indeed, when asked by the penitent, let him not easily undertake the burden, and let him attend lest the seal be violated. To avoid this, sometimes he will be able to make restitution through another priest, or transmit it from another place. Indeterminate restitutions, for example those to be performed for the poor, he should ordinarily leave to be made by the penitent; restitutions to be made to a determined person he will easily be able to undertake in a case of necessity lest the reputation of the penitent be injured, but let him require the testimony of the creditor concerning the thing or sum restored, which he may transmit to the penitent.

n. ¶4896.

Thus let the confessor himself not incur suspicion.

n. ¶4897.

Especially A. If the injured person is not certainly known, inquiry is to be made diligently concerning him. But doubt remaining after diligent inquiry:

n. ¶4898.

if the doubt is among a few, the thing or its price is to be divided among them, nor can it be given to the poor; thus, for example, money lost or taken from one of three or four persons;

n. ¶4899.

if the doubt is among several of the same place, restitution is to be made to them, if morally it can be done: thus merchants defrauding in weight, measure, or quality of goods ought to restore by increasing weight and measure, if the same buyers are accustomed to return; otherwise, if it cannot be done in another way, let restitution be made to the poor or to pious works of the same place in which the injustice was committed; thus in war, if unjust requisitions have been made and it is unknown who suffered damage;

n. ¶4900.

if the doubt is among many scattered persons or among altogether unknown persons, so that there is no probability that restitution can be made to the true owners, restitution is to be made to the poor or to any pious causes.

n. ¶4901.

B. If the injured person has died, restitution is to be made to heirs or to those having care, nor can the goods be expended for the poor or in Masses for the deceased² (who otherwise is no longer the owner of the goods), unless the heirs consent or there are absolutely none.

² Thus the Sacred Penitentiary, 7 Feb. 1899.

n. ¶4902.

C. If a community or society has been injured, restitution is to be made to this society itself, unless it is essentially evil and pursues only an altogether evil end, so that it cannot have the right of possessing. Excepting this case, therefore, restitution cannot be made to the individual members but to the administrators of the society. Nevertheless it is better to warn several of the administrators or members, lest restitution be defrauded by an unfaithful administrator. This also holds concerning an insurance society, although on account of a contract of reinsurance entered among several societies, it is impossible to know which society in fact suffered damage. In this last case certain theologians have said that restitution is to be made to the poor or to pious causes. But as Vermeersch notes,³ this is not the practice of the Sacred Penitentiary; hence Genicot says:⁴ "Practically it seems to suffice that restitution be made to the administrators when the injured person cannot be better detected, and if this is regularly done, a certain compensation among the various societies exists." Therefore restitution is by no means to be made to the poor, unless it cannot be done otherwise; nevertheless one who in good faith in this case has already restored to the poor would not seem to be disturbed.

³ Th. M., II, n. 494.

⁴ Th. M., I, n. 658, VII.

n. ¶4903.

D. If restitution must be made to the State or municipality, restitution can be made through official administrators or those set over taxes, provided that sufficient care is taken lest they keep it for themselves, for example by warning several. It can also be done by destroying titles of public debt issued by the State or municipality, or postal stamps, provided that they belong to the government; but not by destroying banknotes, because they are only protected by the State. Nor can it be made to those who have been unjustly injured in goods by the civil power, as sometimes religious or Catholic schools are, unless the injustice committed against determinate persons is altogether indubitable and has not been repaired or condoned; nor can restitution be made to the poor under the pretext that civil society ought to assist them, because it satisfies that obligation in another way, nor does it belong to private persons to dispose of public goods by private authority; unless nevertheless no other way lies open by which restitution could securely come to the public treasury.

n. ¶4904.

IV. Corollary. - Therefore confessors err:

n. ¶4905.

who never or almost never ask concerning the sin of injustice;

n. ¶4906.

who generally say nothing concerning restitution but pass over it in silence;

n. ¶4907.

who from those unable to restore do not require a firm and efficacious purpose of restoring, nor impose on them the obligation of seriously striving and employing apt means so that they may restore as soon as possible;

n. ¶4908.

who, after hearing the declaration of a sin or of adjuncts which can induce the obligation of restoring, from negligence do not examine whether it must be made;

n. ¶4909.

who do not warn concerning restitution to be made, even when the obligation is certain and there is no serious reason for doubting the capacity or probity of the penitent;

n. ¶4910.

who too easily and without grave reason either suppose good faith in the penitent, or fear that the warning will not be useful;

n. ¶4911.

who too easily either presume condonation, or admit an excusing reason of delay or impossibility, or even exempt from the obligation of restitution;

n. ¶4912.

who think that in light matter no obligation of restitution is given, when on the contrary it is owed under venial sin, and must in some measure be urged, if otherwise there would be danger that the penitent would fall into grave injustice or would multiply light matters greatly;

n. ¶4913.

who do not care about light matters added to one another and coalescing into one grave matter, although nevertheless they can induce grave fault and a grave obligation of restoring, not only by reason of intention, but also by reason of grave damage inflicted on one person, and by reason of notable detention or accumulation even from things belonging to several;

n. ¶4914.

who, when the injured person is unknown, do not care to inquire concerning him or to institute inquiry, and at once pronounce that restitution is to be made to the poor;

…and 11 more passages — all of them are listed on the topic page.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 30 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;

Vol. I, Tr. VIII, Pt. III, Section I. On Restitution in General · Vol. I, Tr. VIII, Pt. III, Sect. I, Chapter I. On the Obligation of Restitution

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

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 3 passages

Vol. I, Tr. VIII, Pt. III, Section I. On Restitution in General

The things which must here be said concerning restitution, some regard it in general and others pertain to particular cases, namely, in what manner restitution is to be made, when certain determinate goods have been injured. Hence for greater clarity a twofold section is placed here.

Vol. I, Tr. VIII, Pt. III, Sect. I, Chapter I. On the Obligation of Restitution

n. 412.

I say. Restitution, namely the reparation of another's right injured in the goods of fortune, if it concerns grave matter, is absolutely necessary for salvation, either in reality, or at least in desire, when here and now it cannot be done. The reason is that restitution of this sort is the one means of repairing injured justice, and consequently of preserving it; but to preserve justice is to preserve the law of God. Therefore.... Wherefore St. Augustine says, epistle 153 to Macedonius: "The sin will not be remitted unless what was taken away is restored, when it can be restored." - But the precept of restoring, according to St. Thomas, is verbally indeed affirmative, but formally negative, and consequently binds at every moment. Cf. St. Thomas, 2-2, q. 62, art. 1, 2, and 8.

n. 413.

You Will Resolve. - 1st. If someone cannot restore from goods of the same order, he is not held to restore from goods of a different order, because since no comparison can be made between goods of a different order, neither can compensation be made. Nevertheless by vindicative justice it can be imposed by a judge or by a superior, that someone, for an injury concerning one kind of goods, furnish something in goods of another order; but only by reason of penalty, not indeed by reason of justice. Moreover the injured person has the right of denouncing before a judge him from whom he received injury, and therefore of accepting money from him, in order that he may omit the denunciation; thus, for example, a woman forcibly violated by someone can compel the violator before a judge, or exact money from the scoundrel, in order that she may renounce her right. - Cf. St. Alphonsus, n. 627.

2nd. From an injury to another's right that is affective only there cannot be given an obligation of external and real restitution, because reparation and injury must correspond to each other. Hence an ill-willed judge pronouncing a sentence which he thinks unjust owes nothing to restore, if in reality it is just; or he who snatches a thing which he thinks belongs to another, while it is his very own. - Cf. St. Alphonsus, n. 556.

3rd. He who has inflicted light damage upon 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 injustice under grave obligation. Nevertheless there can be a case in which someone is held under grave obligation to restore light matter, namely when a thief has secretly taken what indeed reaches grave matter, but does not exceed it. For then there is not required under grave obligation except restitution of that sum which completes the gravity of the matter, but in itself cannot be grave. Cf. St. Alphonsus, n. 553.

4th. He is deservedly held unworthy of absolution who refuses at least to promise restitution; who leaves to his heirs the care of restoring, while he can do it by himself; who, burdened with debt, in food, clothing, service ..., undergoes expenses of this sort, on account of which he foresees that afterward he will be unequal to the payment of his debts. The same must be said of him who, enjoying good fortune, does not wish gradually to reduce his state, in order to satisfy his creditors. But concerning him who, having promised twice or thrice that he would restore, in no way stood by his promises, it will belong to a prudent confessor to judge whether restitution is to be demanded before absolution or not.

5th. Nor are they to be absolved who bring forward futile pretexts for deferring restitution, for example, those who are accustomed to say: I shall not bring my goods into the tomb ..., the heirs will restore ..., I shall set down in my testament that restitution is to be made ..., or: I have already instructed my sons that they themselves restore as soon as possible. For they are to be reckoned ill-disposed who do not wish to do here and now whatever they morally can to satisfy their neighbor: 1st, because the precept of restitution urges without ceasing, and the creditor suffers injury, and often also damage, from the delay; 2nd, because poor provision is made for restitution to be made by committing it to heirs, for these likewise can prolong the same to the end of their life; 3rd, because perhaps time for making a testament will be lacking, or, if it is made, perhaps for various causes or pretexts it will also happen that it is not put into execution.

6th. The confessor must act cautiously with the dying who are liable to restitution. But he will be able to proceed thus: 1st. If the penitent seems to be in good faith, and there remains no time for prudently warning him of his obligation, or it is foreseen that the warning will not be profitable, this warning being omitted, he is to be absolved. 2nd. But if fruit from the warning is hoped for, or if the penitent is not in good faith, he will have to be admonished firmly and at the same time sweetly concerning the obligation of restitution, and helped to perform it at once. 3rd. If the obligation is occult and cannot be fulfilled immediately, the sick man will have to be induced to entrust a sum of money to the confessor himself, or rather, if this can be done, to a faithful man, so that afterward it may be secretly committed to the creditor, or to leave that sum to him in his testament, with mention of restitution omitted. 4th. If the obligation is not occult and cannot immediately be fulfilled, let the confessor bring it about that it is certainly cared for by the heirs, whether through a note to be handed to the creditor or in some other manner.

Billuart, Summa Summae

Charles-René Billuart, O.P. — 17 passages

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, On the quality and necessity of restitution

Restitution is the giving back of a thing received, or compensation for damage inflicted.

Restitution differs from payment and satisfaction. From payment: because payment requires that the thing paid be different from the thing for which it is paid, and that it has not yet been in the possession of him to whom it is paid. Restitution, however, does not require that the thing restored be different from the thing for which it is restored; rather it requires that it be the same, as far as possible, or at least equivalent, and consequently it requires, of itself, that it has already been in the possession of him to whom it is restored. Hence he who gives back a deposit truly restitutes, yet does not pay; on the contrary, he who gives money for wheat bought properly pays, yet does not restitute.

From satisfaction restitution is distinguished³⁴⁰ : 1° because satisfaction properly regards the person to whom satisfaction is made, although it does not exhibit the equivalent of the debt; restitution, however, regards the thing, which must be given back the same or the equivalent. 2° Satisfaction regards the injury inflicted or the honor violated, even if no other damage has been inflicted; restitution, however, regards the damage inflicted. ³⁴⁰ In IV Sentent., dist. 5, q. 1, a. 5, quaestiunc. 1.

I say 1°: Restitution is an act of commutative justice³⁴¹ : because it belongs to commutative justice to establish equality of thing to thing between what is given and what is received, between loss and compensation. Now this is done through restitution. Therefore. ³⁴¹ Here q. 62, a. 1, c.

n. 5.

You will say : The violation of distributive justice obliges to restitution. Therefore restitution is an act of distributive justice. — The consequence is evident. An act destroying a virtue is repaired by the opposite act, as the act of intemperance by temperance. — It is proved of the antecedent. He who distributes common goods badly sins against distributive justice. Now he is bound to restitution. Therefore.

n. 6.

I answer. I deny the antecedent. — To the proof, I distinguish the major. He who distributes common goods badly sins against distributive justice alone, I deny; at the same time also against commutative justice, at least regularly, I concede. — In this sense, I distinguish the minor. He is bound to restitution, insofar as he violates commutative justice, I concede the minor; insofar as he violates distributive justice, I deny the minor. For things owed to particular persons from distributive justice alone are not owed to them simply, as proper and their own, but only in a certain respect, by reason of condignity and of the community of which they are parts, as I said above, dissert. IV, a. 2. Whence they have no right in re to those things, nor to the thing itself, such that they could reclaim them in court as their own. Wherefore, if they are defrauded of them, from this heading they ought not to be restored to them more than those things ought to be restored which are owed from religion, or gratitude, or other potential parts of justice.

n. 7.

Yet it rarely happens that distributive justice has no commutative justice annexed to it. For he who distributes common goods to particular persons either is hired for a stipend for just distribution, or designated by office or pact, for which therefore he is bound from commutative justice. Whence, if he distributes badly, he sins first against distributive justice, inasmuch as he does not distribute the common goods to particular persons according to the proportion of merits; second he sins against commutative justice, not indeed by damaging particular persons in what is their own proper, or by retaining what is strictly theirs, but by omitting the appropriation or the just distribution according to merits, to which from his office, and consequently from commutative justice, he was bound.

n. 8.

I say 2°: The restitution of a thing unjustly taken away, or of damage unjustly inflicted, in the thing where possible, otherwise in vow, is necessary for salvation³⁴² . ³⁴² Ibid., a. 2, c.

n. 9.

It is proved,³⁴³ 1° from Scripture. Matt., XXII, 21 : Render therefore to Caesar the things that are Caesar's. Rom., XII, 7 : Render therefore to all men their debts. ³⁴³ Ibid., in arg. Sed contra.

n. 10.

It is proved 2° from Augustine, Epist. 153³⁴⁴, which is to Macedonius and is cited, c. Si res aliena, causa 14, q. 6 : « If the thing of another on account of which sin was committed is not restored when it can be restored, penance is not practiced, but feigned; but if it is practiced truthfully, sin is not forgiven unless what was taken away is restored; but, as I said, when it can be restored. » ³⁴⁴ Formerly 34.

n. 11.

It is proved 3° by reason³⁴⁵ : To preserve or not violate justice is necessary for salvation. Now he who does not restitute, when he can, what was unjustly taken away or damage unjustly inflicted does not preserve justice, but rather violates it, because he does not preserve equality. Therefore. ³⁴⁵ Here q. 62, a. 2, c.

n. 12.

It is confirmed. Not to steal is necessary for salvation. Now to retain what is owed to another has the same reason of harm as unjust reception³⁴⁶ . Therefore. ³⁴⁶ Here q. 66, a. 3, ad 2.

n. 13.

I said, « otherwise in vow; » because where restitution in the thing is impossible, one must then have the purpose of making it when it will be possible; because it is necessary for salvation that one have the purpose of keeping all the commandments of God, among which is placed the precept of restoring, or of not retaining what belongs to another unjustly, which is reduced to this precept of the Decalogue : Thou shalt not steal. On which account restitution in vow can be said to be necessary with a necessity of means for salvation.

You will ask whether the precept of restoring is affirmative or negative.

n. 15.

I answer. That it is affirmative according to its form; that it nevertheless implies within itself a negative, whereby we are forbidden to retain what belongs to another, as the reason of itself³⁴⁷ . ³⁴⁷ Here q. 62, a. 8, ad 1.

n. 16.

The first part is evident; because by an affirmative precept an act of virtue is commanded, by a negative one an act of vice is forbidden. Restitution, however, is an act of virtue.

n. 17.

The second part is also evident. For the reason why restitution must be made is that what belongs to another must not be retained; not so with other affirmative precepts, which although they include a negation as opposed to the affirmation, do not include it as the reason of themselves : thus, v. g., God is to be loved, not because he is not to be hated, but because he is supremely good; and so of the rest.

Bontempi, Palladium Theologicum V

Gaudentius Bontempi of Brescia, O.F.M. Cap. — 1 passage

Tr. I, Disputation XXIV: On Restitution

Diss. I, Chapter II — The lax opinions of several Casuists · Diss. II, Chapter I — The notion of restitution, and the principles from which it proceeds. Tardy debtors and their confessors are admonished · Diss. II, Chapter II — On those who either hinder others from obtaining some good, or cooperate in the loss of others

AMONG the species of Justice enumerated above, none is graver, or more pressing, than Restitution; which therefore suffers grave difficulties: for to steal another's goods, a greed conscious of its own need does not disdain; but to restore, for the most part, recoils rather from disdain than from want; since it is not so much the return of what was taken away, as a kind of public confession of the crime committed. Yet nevertheless there is an obligation of compensating the injury inflicted, or the thing taken away; so that D. Augustine could say with the greatest confidence, epist. 54 ad Macedonium, that even one who persuades a man not to restore, or even does not compel him (provided the task of compelling is in his own hands), is a partner in the crime and the fraud, and will be bound by an equal bond both of punishment and of fault; and however much he be absolved from the fault by touching penitence, nothing will ever exempt him from the penalty of paying, except an impossibility of paying. For as St. Augustine says a little further on in the same place: No one is to be interceded for, that what he took away by crime he may possess with impunity for the crime; but, the injury being forgiven, let him render what he took away unjustly, provided he has what he took away, or something else from which he may restore it. Concerning this restitution, therefore, we must here treat with the usual brevity.

Concina, Compendium

Daniele Concina, O.P. — 108 passages (filed under the subtopics)

Diss. I, Chapter II — The lax opinions of several Casuists

n. V.

V. The same Lessius, in the place cited, no. 48: “You will say: St. Augustine, Epistle 54 to Macedonius, says that it is more wicked to accept money for an unjust sentence than for a just one, for false testimony than for true. But money accepted for a just sentence is to be restored: therefore also for an unjust one. So Soto. — I answer by denying the consequence. For it is not the case that, because a thing is more wicked, it therefore obliges more, or equally, to restitution. For this obligation does not follow the magnitude of the crime, but the loss inflicted by the injury. But he who accepts money for an unjust sentence inflicts no injury upon the giver, as does he who accepts for a just one. Now the former is more wicked than the latter: both because it is worse to pass an unjust sentence (to the passing of which he who accepts the money has already set his mind) on account of the injury which is thereby done to the other party, than to accept money for a just sentence to be passed; and because (as Augustine there says) it is more wickedly given for an unjust sentence than for a just one, although it be given voluntarily and willingly. For he is speaking of a sentence to be passed. Add that Augustine in the same place signifies that this money, though more wickedly accepted, is not to be restored once the work has been performed, since he says it was given by the willing. For to one who is willing no injury is done. It is otherwise if it be given for a just sentence, which is reckoned to be given under compulsion, from fear of an unjust sentence.”

n. XII.

XII. The Fathers of Salamanca, tract 13, chap. 1, doubt 13, no. 318: “Whether one who has an opinion that a thing is owed him may use occult compensation?” They answer, no. 319: “It must be said therefore that in general and in the abstract, so to speak — that is, for all cases — it is not lawful to use occult compensation when there is given only a probable opinion for either side, that is, for the debtor and for the creditor; but in particular cases it is lawful. And it is also lawful in all cases, when there is given a greater probability on the creditor's side that such a debt is owed him.”

n. XVIII.

XVIII. Whether one who by occult compensation filches what is owed him may swear that he has received nothing?

Fr. Thomas Tamburini, Book VIII, tract 2, chap. 4, § 1, no. 1, answers: “That he is not a thief in conscience, nor does he sin, nor does he incur the excommunication which perchance is imposed against thieves; and that he may swear even before a judge that he has received nothing, understanding that which was not owed him (if it be already certain to him, as today it is among all); even if the thing which he takes had been consigned to him by the debtor on deposit. See Molina, Lessius, de Lugo, and others soon to be cited, to whom add Dicastillo.”

n. XX.

XX. Fr. Dominic Viva, in his Tract on Theology, upon this proposition 57, no. 7: “What is proscribed in this thesis is that servants may secretly compensate themselves for what they judge to be owed them in justice by way of wages. Therefore for the making of this occult compensation there is required the judgment of a man learned and at the same time expert.”

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.

Diss. II, Chapter II — On those who either hinder others from obtaining some good, or cooperate in the loss of others

n. I.

I. Theologians reckon nine kinds of persons who concur, either positively or negatively, in the loss of others, and who are comprehended in these verses:

Command, counsel, consent, flattery, harbouring, Partaking, silence, not opposing, not disclosing.

n. II.

II. He who inwardly assents to a man already wholly prepared to inflict an evil, no counsel or persuasion being added, sins indeed against charity, but not against justice: therefore he is free from restitution, because he does not flow into another's loss. But before discourse be instituted concerning causes cooperating to evil, a few things are to be premised concerning those who hinder the obtaining of a good.

n. III.

III. QUESTION I. Whether one who applies an efficacious impediment, that a man may not obtain a benefice to which he has a right, whether in the thing or to the thing, is liable to restitution? ANSWER. The common opinion affirms it, whether this impediment be applied by fraud, guile, or force, or by entreaties, persuasion, and gifts. It is to be observed nevertheless that if the collator had constantly decreed to confer the benefice, the whole loss is to be made good. If the collator was doubtful, the loss is to be compensated according to the degree of hope. That the impediment may bring in the debt of restitution, it must be efficacious, that is, that on account of such impediment the effect should follow. The reason is obvious. He who by force, guile, or fraud hinders a man from obtaining a benefice to which he has a right, whether inchoate or consummated, inflicts an injury upon him: he who by counsel and persuasion hinders the obtaining injures both distributive and commutative justice. Therefore he who hinders is bound to make good the loss, either wholly or in part, according to the quality of the greater or lesser right which the candidate had to the benefice. But if you turn away the candidate himself by entreaties, persuasion, or counsel, you are held to nothing; because to one willing and consenting no injury is done. And if you should secretly disclose to the collator a hidden but true crime, on account of which the candidate would be deprived of the benefice, you would owe to restore nothing, since that would turn to the public good, provided the offence rendered the candidate unworthy or less worthy.

n. IV.

IV. QUESTION II. To what is he held who hinders a promise made from being fulfilled? ANSWER. If the promise be accepted, the loss is to be made good, because the promisee had a right to the thing promised him. If the promise be not accepted, and by counsel or persuasion you draw back the collator, you are held to nothing. He who by guile or fraud draws back a rich man from bestowing an alms upon a poor man is bound to make good the loss inflicted upon the poor man. If you should persuade a testator lying sick, who had destined a legacy to Sempronius, to institute him his heir, or rather to leave the legacy to yourself or to a friend, Sempronius being neglected, authors commonly teach that you neither sin nor are held to restitution; but I assert that you should never do it. An exception is the case in the Clementine On Privileges, where it is severely commanded to religious that they draw not testators back from bequeathing goods to mother churches. Let all who assist testators counsel them to distribute their legacies justly and prudently, the order of charity and of justice being preserved. He who without fraud or guile persuades someone not to confer an undue good upon Peter out of vehement hatred, is to me more probably bound to restitution. Since although inward hatred does not bring in this debt, it is nevertheless conjoined with an outward persuasion, which, though absolutely regarded it be innocent, in these circumstances becomes evil. This opinion nevertheless I submit to the judgment of others.

n. V.

V. He who hinders goods from being applied to the treasury, which on account of some crime are wont to be applied after the judge's sentence, is held to restitution; but not before the sentence pronounced: since before the sentence is passed no one has a right to goods of this kind. He who hinders legacies left by a testator, that they should be distributed among the maidens of this or that city adorned with such prerogatives, from being distributed to them, and takes care that they be conferred upon others, sins and is held to restitution: because the maidens of such a city have a right to goods of this kind. What if a dispensation be obtained from a superior? Dispensations of this kind are commonly without just cause. In which case both he who asks and he who grants sin, and are liable to restitution. But if the cause of dispensing be just, there is no debt of restitution.

…and 68 more passages — all of them are listed on the topic page.

Slater, Cases I

Thomas Slater, S.J. — 110 passages

Slater, Cases I, Restitution, Case 1. Defrauding a Railway Company · Slater, Cases I, Restitution, Case 2. A Malicious Intention · Slater, Cases I, Restitution, Case 3. A Tipster's Obligations · Slater, Cases I, Restitution, Case 4. Restitution in Another Species of Goods

Slater, Cases I, Restitution, Case 1. Defrauding a Railway Company

Titius, since he frequently used the railway in making journeys, bought a six-month ticket; after that period of time had elapsed, he made journeys in the same way for a month without renewing the ticket or otherwise paying the price of the journey. When he had disclosed these things in confession, the confessor asked what price was owed to the company; Titius answered him that the sum would be about two pounds sterling. Having heard these things, the confessor considered within himself whether Titius was bound under grave sin to restore two pounds sterling to the railway company. Hence it is asked:

What matter is required to constitute a grave sin against justice?

In England, on account of the lesser value of money, is a larger sum required for grave matter than among other nations of Europe?

Do small thefts coalesce, and how?

What is to be said of the case?

Solution

What matter is required to constitute a grave sin against justice?

According to St. Thomas (II-II, question 59, article 4) the sin of injustice is mortal because it is against charity, which is the life of the soul. But sins against charity are only venial if the matter be light. Matter against charity will be grave if the act causes another serious sadness, or tends notably to disturb peace and harmony. Justice, it is true, looks rather at objective relations than at subjective dispositions, and so although charity will always serve as a measure of the gravity of sins against justice, yet in estimating the gravity of these sins we must take as our norm an ordinarily constituted person, not such as are specially sensitive. Loss of property in such a quantity as would cause serious trouble to an ordinarily constituted person will be a serious loss, and the theft of it will be a serious sin against justice. The theft of what would suffice to support the owner of the property and his family for a day would ordinarily be a serious loss to him, and would be grave matter. This rule serves for ordinary cases; for a measure of the gravity of theft from very rich persons or from wealthy companies we must have recourse to other considerations besides the foregoing. For theft does injury to the community and to the security of property, as well as to the individual owner. Even if the individual owner does not suffer loss which is serious for him, yet the harm which theft does to the community and to social security may be notable, and if it is notable, the theft will be mortally sinful. What sum is notable on this account will depend on circumstances of time and place. Although the precise sum can not be determined with mathematical exactness, yet, according to the common opinion, a sum of about one pound sterling is at present sufficient to constitute a mortal sin of theft, when it is taken even from the richest.

Is a larger sum required to constitute grave matter in England than in other countries on account of the less value of money there?

The affirmative has been maintained by some theologians. However, the conditions of modern commerce tend to equalize the value of money; or, in other words, the whole world is now one big market for money and the chief articles of commerce. If either money or goods are cheaper in one country than in another, trade is attracted thither, and trade soon tends to equalize prices. Hence there is no very notable difference now in the value of money in the different civilized countries of the world. Prices of different articles are, indeed, different in different places, and this fact makes trade profitable; but the general cost of the same standard of living is much the same all the world over.

Do small thefts coalesce, and how?

Small thefts certainly coalesce, as is clear from Proposition 38, condemned by Innocent XI. Small thefts coalesce, owing to the intention of the thief finally to steal a large sum, or owing to conspiracy among many, each of whom steals something ; also owing to the hoarding of small sums stolen at short intervals.¹

1 Manual of Moral Theology, vol. i, p. 396.

The case. Titius traveled on the railway for a month after his season ticket had expired, without paying his fare. He thereby defrauded the railway company of two pounds. He took that value which belonged to somebody else, against that person's reasonable wish. He therefore committed theft, and as the matter is grave, he is bound under grave sin to make restitution of that sum to the company.

Slater, Cases I, Restitution, Case 2. A Malicious Intention

Philip, a Catholic, placed poison in his garden to kill harmful animals. Sometimes he had found a cat or even a dog killed by the poison in the garden, when the thought occurred to him: “Would that this valuable dog of my neighbor Caius were killed in this way, for Caius has often been troublesome to me, and not rarely have I found his dog entering my garden.” Therefore, led by the hope of killing the dog of Caius, which is descended from the breed called Saint Bernard, he placed a larger quantity of poison, and the next morning found that unfortunate dog dead in a corner of the garden. After it was buried, his conscience pricked him concerning restitution to be made. Hence it is asked:

Can the intention make an external act unjust?

What is an occasional cause and an accidental cause of damage?

When is one who posits the cause of another’s damage excused from making restitution, even if the damage was foreseen or desired?

What is to be said of the case?

Solution

Can the intention make an action unjust which otherwise is not unjust? Some theologians, with Lugo, assert that it can, but the common opinion is against them. For the intention with which an action is done does not alter the nature of its influence on the effect produced, and whether an act is unjust or not, depends on this influence.¹

1 St. Alphonsus, book iii, no. 584.

What is an occasional, and an accidental cause of damage?

An occasion is that which, being put, an effect follows from some other cause. Thus if A murder B, and C is taken up on suspicion, A is the occasion of C’s arrest. An accidental cause is that from which the effect was not probable, though possible, as if A digs a trench where few people pass, but B, a blind man, passes that way, falls into the trench, and is killed; A is the accidental cause of B’s death.

When is one who puts the cause of another’s damage excused from making restitution, even though the damage was foreseen and desired? Besides theological fault, it is necessary that the action of him who is to be obliged to make restitution be the efficient cause of the damage, and that it be unjust. For unjust actions alone impose the obligation of making restitution, and nobody is bound to make restitution for damage which he did not cause.

The case. Philip poisoned his neighbor’s dog out of spite. He certainly committed a grave sin against charity. But as he put the poison in his own garden, into which his neighbor’s dog sometimes strayed, his action was not the efficient cause, but only the accidental cause of its death. He may therefore be excused from the obligation of making restitution, according to the better opinion.

Slater, Cases I, Restitution, Case 3. A Tipster's Obligations

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

What are the roots of restitution?

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

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

What is to be said of the case?

Solution

What are the roots of restitution?

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

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

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

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

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

In what matter is ecclesiastical and civil law respectively competent ?

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

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

Slater, Cases I, Restitution, Case 4. Restitution in Another Species of Goods

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

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

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

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

What is to be said of the case?

Vol. I, Case XXVII: A Case of Restitution · Vol. I, Case XL: A Case of Restitution · Vol. I, Case LXIII: A Case of Restitution · Vol. II, Case XIII: A Case of Restitution · Vol. II, Case XXI: A Case of Restitution · Vol. II, Case XLVI: A Case of Restitution

Solution

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

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

…and 70 more passages — all of them are listed on the topic page.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 89 passages

Vol. I, Case XXVII: A Case of Restitution

Some time ago a fire broke out in a store in which John is employed as a clerk. To increase the amount of damages which his employer would receive from the insurance company, John, together with another clerk named Donald, testified that a large quantity of silk goods and laces had been destroyed by the fire, when, in fact, they had been removed by the proprietor and were intact. In the meantime the storekeeper has disposed of his business and removed elsewhere. Donald has a good position in a large New York house, but John makes scarcely enough to keep him.

All this John makes known in his Easter confession. He knew at the time that he made the statement to the insurance agents about the silk goods and laces that it was a false statement, but Donald's testimony alone would not have sufficed to recover the supposed damages, and so he was induced to make a joint statement with Donald. He did not profit by it himself, nor does he know how much money the storekeeper got from the insurance people for the silk and laces, except that it was hundreds of dollars. When questioned further by the confessor, John admits that there is no probability whatsoever, that either the storekeeper or Donald will ever make any restitution, neither of them being Catholics. Under these circumstances, the confessor holds John to restitution in the full amount. But John has nothing wherewith to make restitution, neither does he know the exact amount to be restored, nor the parties to whom restitution is to be made, since the old company has gone out of business and a new concern has bought up its interests. Under these circumstances the confessor volunteers himself to find out how much money was recovered from the insurance people for the silk and laces, and to what individuals restitution must be made, and to inform John later of the results of his inquiries. In the meantime, however, the confessor grows anxious about the course he is taking in the matter, and asks whether he is acting rightly. Theoretically, there can be no doubt of John's obligation to make restitution, but only in case the storekeeper refuses to restore, in which case John is held jointly with Donald, because Donald's testimony, by itself, did not suffice to prove the supposed damage. Therefore, John is liable, together with Donald, for the whole amount, but only in the second instance, that is, in case the storekeeper does not make good, in which case John may recover from the storekeeper. But Donald refuses to pay his share; therefore, John is liable for the full amount, but with the right to recover from Donald, Donald's half of the amount restored. In principle, therefore, the decision of the confessor is correct. In practice, however, we are obliged to take a different view of the confessor's conduct.

In the first place, the confessor acted imprudently in undertaking to find out for John the exact amount of money paid by the insurance company to the storekeeper for the supposed destruction of the silk goods and laces, and to what persons this money should be restored. There is always danger of breaking the seal of confession in making such inquiries. Moreover, even supposing the penitent gives the necessary permission to make the inquiry, the undertaking is odious in itself, and may lead to embarrassing complications. There is no need, in the present instance, of such an investigation, because John has no means wherewith to restore. There is question of making restitution to an insurance company. These companies are operated and secured by the premiums paid by the persons insured. The rate of the premiums depends on the risk the company takes in insuring, the risk being computed on the average frequency of fires, as shown by the records of insurance companies, no account being taken whether the fires are accidental or of incendiary origin. The company endeavors, by means of restrictive clauses and thorough investigation into the origin of each fire, to protect itself against fraud. However, it can not guard against every deception practised by the insured. Therefore, in fixing the rate for insurance the company considers only the possible damages it may have to pay. Hence it follows that the carriers of fire insurance policies are themselves, to some extent, the sufferers when unjust fire damages are allowed, because they pay a higher premium rate in consequence of fires of incendiary origin. If no fraud were practised on insurance companies by holders of policies in the same, the rate for insurance in such companies would be much lower than it is. It is but just that the policy-holders should be indemnified for unjust damages they are thus indirectly made to suffer. But the number of policy-holders is so great that the amount of restitution to be made to each policy-holder for damage done him by any particular fire is inconsiderable.

Moreover, their identity is unknown. Therefore, the poor may be substituted for them and restitution made to the poor. In this view, and it is well founded (cf. Lehmkuhl, I. 11, 34), John's case may be easily disposed of. John is actuated by a sincere desire of making restitution, but is prevented by his poverty. The confessor may tell him that he may give alms to the poor by way of restitution, and as he is poor himself, he is included in the number of those who may benefit by the alms. In this way John's conscience is set at rest. But the storekeeper and Donald are still bound to restore.

Vol. I, Case XL: A Case of Restitution

Mr. X was engaged, some years ago, in the wholesale dry goods business. The saying that "every business man fails at least once in his life," came true of him. He failed for $25,000, with assets amounting to about half that sum. His creditors were, first, several wholesale houses, to whom he owed $20,000; second, a friend, from whom he had borrowed $4,000; third, a dressmaker, to whom he owed about $1,000 for garments for his family. Mr. X, though a Catholic, had neglected the practice of his religion, but was, nevertheless, in his business dealings an honest man. It was through no fault of his that he failed, and he turned over conscientiously to the receiver for his estate whatever he possessed in the nature of assets. When his affairs were finally settled, it was found that he was able to pay fifty cents on the dollar. This he paid and got a discharge from the court, under the bankruptcy laws, from all further liability for these debts.

He went to work again, courageously, to retrieve his fortunes. By industry and economy, he has succeeded in laying by about $15,000. But now his health is broken and he is growing old, and is obliged to retire from business for good. He has nothing to depend on for the support of himself and his wife and an invalid child but this $15,000. He has made up his mind to return to the practice of the faith, and this matter of his earlier failure disturbs him. He was discharged by the court from further liability, after paying fifty cents on the dollar, at that time, because it was all he had wherewith to pay. Now he asks himself, Was that discharge of the court also a discharge in conscience? Did it wipe out, before God, his obligation of paying the other fifty cents out of his future acquisitions? Or did it only discharge his person, and leave his obligation to pay out of his future acquisitions in full force? This is the question that he asks his confessor to settle for him, as it is now only a question of conscience.

Solution. Theologians are agreed that a "cessio bonorum," whether voluntary or ordered by the court, does not, of itself and independently of other considerations, relieve a debtor of the obligation of making full payment of his debts out of his future acquisitions, if he be able to do so.

Dr. Crolly, sometime professor in Maynooth College, and an authority of weight, contends that the intention of the insolvent laws of England is to wipe out the debt entirely, and that these laws must be considered just and equitable, and applicable in the court of conscience. (De just, et jure, vol. iii., n. 1232.)

But Lehmkuhl takes exception to this contention of Dr. Crolly, and maintains that the insolvent laws of England or of any other country can not, of themselves, discharge the conscience of the debtor from further liability for his debts, unless other conditions are present, from which it may be gathered that the creditors renounce all future claims against him.

And this opinion of Lehmkuhl is the opinion practically of all the theologians.

A specific case, according to modern theologians, where a "cessio bonorum," followed by a discharge of the court, operates in conscience also, and wipes out the obligation of future payment, is the case of wholesale and retail merchants, making a bona fide assignment in favor of their creditors. In this case it is not the discharge of the court that wipes out the debtor's liability in conscience, but it is the method of doing business prevailing to-day that makes it probable, if not altogether certain that there existed a tacit contract between the retail and wholesale merchant that in case of a bona fide failure, the creditor would take the debtor's assets in payment for his debts, and renounce all further claims to be paid out of future acquisitions.

Father Konings (Theol. Mor. i., n. 861) says that there are theologians to-day who think that the opinion of earlier writers on this matter must be abandoned, because of the new methods introduced into commercial transactions. Commerce to-day, they say, is conducted almost exclusively on a credit basis. The creditors foreseeing that, among their numerous debtors, there will be some who will fail and who will be obliged, in consequence, to settle with them for a certain per cent on the dollar, charge a higher price for their goods, or a higher rate of interest for their money, in order to secure themselves against loss. It is tacitly understood among business men that if one of their number makes a bona fide assignment, his creditors take what is left and renounce all further claims against him. The insolvent laws, discharging the debtor from further liability, are equally fair to all, beforehand. The benefit which A reaps under them to-day at the expense of B is reaped later on by B at the expense of A, or of some one else of their number. To all of this Konings replies: “Let wiser men judge how much these considerations are worth and whether, at least when taken together, they make that opinion probable.”

We believe, with Konings and others, that it is not the intention of the insolvent laws of the United States, or of any other country, to discharge the conscience of the debtor from further liability. Although the civil law uses the words "forever discharged from all debts and claims," it takes no account of the conscience, and only means by these words that the creditors are forever denied any action in the future against a legally discharged debtor.

Judge Kent (Commentaries on Am. Law, vol. I., n. 422) says, in regard to the value of insolvent laws: "The 'cessio bonorum' of the Roman law, and which prevails at present in most parts of the continent of Europe, only exempted the person of the debtor from imprisonment. It did not release or discharge the debt, or exempt the future acquisitions of the debtor from execution of the debt. The English statute of George II, commonly called the lords' act, and the more recent English statutes of George III and George IV have gone no further than to discharge the debtor's person; and it may be laid down as the law of Germany, France, Holland, Scotland, and England, etc., that insolvent laws are not more extensive in their operation than the 'cessio bonorum' of the civil law."

Again in vol. ii., p. 392, note, he says: "It was stated by the Chief Justice in giving the opinion of the Supreme Court of the United States, in Sturges vs. Crowninshield, 4, Wheaton, 122, that the insolvent laws of most of the States only discharge the person of the debtor and leave his obligation to pay out of his future acquisitions in full force." These laws have been very materially changed, of course, since the days of Judge Kent, both in their purpose and nature, and are less concerned to-day than ever perhaps about the "forum internum," or court of conscience.

Lehmkuhl's opinion, therefore, seems just and equitable, namely, that in a case of "cessio bonorum," the discharge of the court is not sufficient of itself to wipe out the conscientious obligation of paying the remainder of the debt out of future acquisitions. Other conditions must be present, from which it may be inferred, with at least reasonable probability, that the creditors renounce further claims against the debtor.

n. ¶13.

The question remaining to be settled, therefore, is this: Are there, in reality, present in business transactions circumstances and conditions from which it may be gathered that business people enter into a tacit agreement to accept, in case of a bona fide failure, the assets in full settlement for the debts owed them? We think they do. We have reason to believe that this is the persuasion of conscientious and honorable business men, both Catholic and non-Catholic alike. Conscientious and honorable business men, who feel a keen sense of duty to pay dollar for dollar for money borrowed or for work done for them, feel no such sense of duty to pay, later on, out of their future acquisitions, the remainder of their debt to, for instance, wholesale houses after a bona fide failure and a discharge in bankruptcy. A wholesale house, for example, is fully aware that among its many retail patrons, the number of failures, on an average, will reach such a figure every year. To secure themselves against this loss, among many other measures that they take, is this that they charge a higher price for their goods than they would otherwise charge, or be justified in charging, were there no bona fide as well as fraudulent failures. Thus, if A, a retail dealer, fails in business and makes an assignment in favor of his creditors, who are the wholesale houses, it is in reality A's fellow retail dealers purchasing from the same wholesale house who make good the amount that A is unable to pay by paying a higher price for their goods, in view of such failures as A's. This is true of most lines of business. For instance, insurance companies protect themselves against loss by fraudulent fires by charging a uniform higher rate for insurance than they would be justified in doing were there no fires of incendiary origin. The policy-holders all tacitly agree to pay more for insurance in order to protect them against loss inflicted by some of their number.

n. ¶14.

We do not see, therefore, how Mr. X can be obliged in conscience to pay in full out of his future acquisitions the debts he owed the wholesale firms. There seems to be a reasonable doubt of his obligation to pay. And with such reasonable grounds for doubting whether Mr. X is bound in conscience, it would be unreasonable to impose such a burden on him. Of course, as Father Konings remarks, “most certainly, those who have come through their own grave fault into that necessity—namely, of surrendering their goods—are bound as formally unjust authors of harm.”

n. ¶15.

We suppose that Mr. X has not failed through any grievous fault of his own; and, moreover, that he has done all that he tacitly agreed to do, in the event of his bona fide failure, viz., he has turned over conscientiously all his assets for the benefits of his creditors. Therefore, being certainly discharged in person by the court, he is also probably discharged in conscience.

n. ¶16.

It is quite different with Mr. X's other two creditors, namely, the man from whom he borrowed $4,000 and the dressmaker. With these he is obliged in conscience to settle in full out of his future earnings. For he had no such understanding with these as he had with those. The discharge of the court does not, of itself, discharge the conscience. There are no other conditions or circumstances present, however, on which a discharge in conscience might be argued, even with probability. Therefore, for these two latter debts Mr. X must in conscience settle from his future earnings.

n. ¶17.

When he has done this his conscience may rest easy. Here again we must remark, with Lehmkuhl and Crolly, “it is altogether required that he himself also act entirely according to the laws and permit himself not the least thing in his own favor beyond what the laws grant,”

Vol. I, Case LXIII: A Case of Restitution

Lucy, when a servant in a Jewish merchant's house, made a false statement before an insurance adjuster, which now troubles her conscience. A fire had broken out in an out-house, and in order that he might collect a larger sum, her master falsely declared that a quantity of clothing had burned, and he induces his clerk and Lucy to confirm his statement. The merchant is now a bankrupt, the clerk in comfortable circumstances, Lucy still without means anda servant in another family. The confessor imposes upon her the duty of restitution, because neither the merchant nor the clerk will make it. Lucy has nothing, and moreover, is not aware of the amount or to which company to make the restitution. The confessor promises to make inquiries and to let her know the result. Meanwhile he has scruples, and he asks whether he has acted correctly.

The obligation of Lucy to make restitution is plain in the case under consideration, and she shares this obligation with the clerk. One witness would not have sufficed, and Lucy therefore is made jointly responsible for the whole amount. If the merchant makes no restitution then Lucy and the clerk must refund the money with the right, of course, to make Levi reimburse them; should the latter be without means, Lucy must bear half of the amount, the clerk being answerable for the other half; the latter not paying, this part too would fall upon Lucy, of course, with the right of seeking indemnity from the clerk. So, therefore, the decision of the confessor is right in principle. Now let us see whether his practical proceeding is to be sanctioned.

First of all it appears to us as not well, nor advisable in general, to undertake such an inquiry. There is always present the danger to the seal of Confession. Moreover, the penitent's ready acquiescence presumed, the matter is an unpleasant one and may lead to unforeseen complications.

There is, moreover, no necessity for such inquiry in our case. Lucy is without means, and can therefore not make restitution. Indeed, a way is easily found out of the difficulty.

It is here the question of making restitution to an insurance company. These companies exist and prosper by the premiums of the insured. The rate of premium is determined by the probable. aver ages of fires, without regard as to whether a fire is incendiary or not. The company rightfully seeks by clauses and searching examination to avoid fraudulent claims, but can not possibly prevent all fraud on the part of the insured. Hence in fixing the rate of premiums the company takes into account all these circumstances. It follows that the insured by their premiums are really made to pay for the fraudulent claims, and they consequently are the ones injured by fraud.

Restitution is therefore really due to those paying the premiums— the insured. The number of the latter, however, is so great that only an infinitesimal part is borne by the individual. Their names are unknown. Therefore it appears that restitution in our case may be turned over to the poor. By so viewing the case (cf. Lehmkuhl I. n, 34), the difficulty for Lucy is easily solved. She has the honest intention of making restitution, but through her poverty is unable to do so. For this reason the confessor may direct her to discharge her duty by giving alms to the poor, of which she herself is one, and thus to pacify her conscience. The merchant and the clerk, of course, remain under obligation of restitution.

Vol. II, Case XIII: A Case of Restitution

Titius tells the following incident in confession. About a year ago, while a neighbor’s house was on fire, he did his best to save as much furniture and other articles from the burning house as possible. When there was no longer any prospect of saving any more property, and the owner of the house was standing near Titius, he suddenly bethought him of a considerable sum of money that was still in the house, but did not dare go after it. He told Titius about it, saying: “Well, it goes with the rest.” Thereupon Titius, taking a desperate chance, enters the building and secures the money at the risk of his life, but never lets on that he succeeded in saving it. The house was burned to the ground, and no one ever suspected for a moment that Titius has succeeded in saving the money. Titius felt no scruple about appropriating the money, as the owner had abandoned it as lost, and Titius thought he did him no damage in keeping it, because it would surely have been destroyed had not Titius saved it. Titius always thought that the money was lawfully his until within the last few weeks. Now his conscience troubles him, and as the amount was considerable, he desires to know what he ought to do in the matter. May he keep it, or must he return it?

ANsweR: Titius must restore the money to the rightful owner, but he may retain enough to indemnify himself for the risk he took in saving it and for whatever other damage he may have sustained. We can easily imagine how Titius was led to form a false conscience regarding the money, which permitted him to keep it. He said to himself, the owner abandoned all claim or right to the money when he said: “Let it go with the rest.” And it would have gone with the rest, that is, it would have been destroyed and lost to the owner had Titius not saved it. The neighbor is not any the poorer because Titius kept the money. Whether Titius saved it and kept it, or whether it was burned up, in any case it was lost to the owner. There is scarcely any doubt that a man who has not made a special study of the principles of justice and rights, would reason in some such way as above indicated, and thus become a possessor bonae fidei. However, we cannot call this money a res derelicta. The simple fact that it was in eminent danger of being destroyed, does not obliterate the original owner’s - right to it, or make it a res derelicta. Because it was in imminent danger of being destroyed and then was rescued from that danger does not transfer property rights in it, from its owner to the rescuer. Although it was on the point of being destroyed, it is still the property of its original owner, until it is destroyed or abandoned, and as such “res clamat domino.” Eminent danger to property does not destroy the owner’s right to the property, so that it becomes a res derelicta. Nor does the salvage of property that would otherwise be destroyed transfer the ownership of the property to the one who saves it. It is only when the owner does actually abandon his property and renounces all intention of claiming it any more than it becomes a res derelicta, and consequently primi possedentis. In the present case it can not be assumed that the original and rightful owner of a large sum of money renounced all claim to it as soon as he realized that it was going to be destroyed, or would willingly consider it as belonging to anyone else but himself in case it were rescued from the fire by human agency or through some chance of good fortune. Nor could the owner of the money be held guilty of acting unreasonably, in thus continuing to claim his property, even though he could not have saved it himself and had given it up as lost. It is still his money. The danger it was in has not destroyed his title to it, nor has the rescue of it created a new title of ownership in the rescuer. Therefore the money must be restored. When Titius fully realizes this obligation of restitution he will commit a mortal sin if he does not fulfil it within a reasonable time, if he is able to do so.

But he is not bound to restore all the money. He may retain a part of it to indemnify himself for the risk he took in saving it. This is quite reasonable and in harmony with the principles of justice. It is not so easy to determine the exact amount of indemnity that Titius is entitled to. In many countries of Europe, the amount is determined by statute and is generally ten per cent. of the whole amount found or saved. Ten per cent., therefore, we would say, let Titius retain as a reward for the risk he took in saving the money. It were very much to be desired that we had some such law, determining the reward for finding or saving property in the United States. We would even agree that Titius keep more than ten per cent. if he conscientiously thinks that ten per cent. does not represent the risk he took. Moreover, if Titius sustained any damage to his health or his clothing by saving this money, he is entitled to a reasonable indemnity for that also.

Only in the case of food or drink do the moralists make an exception to this general rule of restitution. “If a thief has consumed, in the same place and within the same time, a thing remaining in certain danger, during which he foresaw that the thing would equally perish in the owner’s possession,” he is not bound to make any restitution. The reason is that an article has no value for the owner as long as it is not removed from the danger of destruction. If the food or drink be removed to a place of safety before being consumed, then of course they recover their value and must be restored, quia res clamat domino.

Vol. II, Case XXI: A Case of Restitution

Mary is a servant employed in the home of Mr. Smith. From time to time she is commissioned by her employer to purchase certain things for his home. He orders her to purchase them at a particular business house that he names, and fixes the price that she is to pay for them. Mary, however, purchases them at another business house, where she gets them cheaper, and she keeps the difference for herself. She justifies herself by saying that the difference in price represents the fruit of her own industry, and, therefore, belongs rightfully to her. Moreover, she claims that she is underpaid by her employer, and that this difference in price makes up the shortage in her wages. Is Mary bound to make restitution, either to the business house from whom she failed to make the purchases, or to her employer?

Mary is not obliged to make any restitution to the firm from whom she failed to purchase the goods. The reason why she is not so bound is because she did not sin against the virtue of commutative justice in not buying the goods from that firm, and only commutative justice imposes an obligation of making restitution. It is assumed, of course, that there were no other indirect considerations or circumstances which might bring the case under the virtue of strict justice. For, although, after a fashion, it might seem that Mary did an injustice to the firm from whom she failed to make the purchases when she had been ordered to do so by her employer, in defrauding them of a just profit that they might have realized on the sales, nevertheless, strictly speaking, Mary did not do them any real injury, since they had no strict right to such profit, either real or personal. Neither can it be maintained that the firm had at least a right ad rem to the profit that they would have realized from the sale of the goods, since that profit was intended for them by Mary’s employer, who ordered her to purchase the goods from this particular firm. Because Mr. Smith ordered his servant Mary to purchase certain goods, at a fixed price, from a particular firm, it does not follow that Mr. Smith intended to convey to that firm a strict right to the profit resulting from such purchase and sale. All that follows from orders such as Mary received, is that the employer desires to be furnished goods to his liking, with the guarantee that a particular business house furnishes, and if he intends the profit to go to that particular house, still he does not, under ordinary circumstances, make a conveyance of strict right to such profits to that particular firm. We say, under ordinary circumstances, because there may be cases in which, owing to peculiar circumstances, the employer might desire to convey to some particular business house a strict right to the profits of such sales, as, for instance, if Mr. Smith should enter into a contract with a particular business house to purchase a certain line of goods from them, uniformly, in consideration of which agreement, the firm contracts to furnish the goods at a uniform price, irrespective of market prices at any particular time prevailing. In this case, of course, the firm would have a strict right to make the sales and to realize the profit, and Mary dare not substitute another firm without incurring an obligation of restitution, since she does a real injury to the firm that holds the contract with Mr. Smith, violating their strict rights. But apart from particular cases, and under ordinary circumstances, an order such as Mary received from Mr. Smith implies no conveyance of strict right to profits to any particular business house, and, therefore, the transgression of such an order does not induce an obligation of restitution.

But Mary’s case stands quite different, if we view it in relation to her employer, Mr. Smith. Mary is bound to restore the difference in price to Mr. Smith, even though the goods that she purchased elsewhere for less money are equally as good as what she would have obtained at the firm designated by Mr. Smith. The reason is that Mary has no claim or title to the difference in price. The money that Mary received from her employer belongs to the employer until it is spent. The employer, in handing over to Mary a certain sum of money with which to buy goods, does not relinquish to Mary his ownership of the money, but simply makes Mary his agent and entrusts to her his property, in as far as the same is necessary for the purchase of certain goods. Mary is obliged, both by reason of her position as agent for Mr. Smith, and the salary or wages that she receives, to give her labor to Mr. Smith, and to safeguard his interests. This is the duty of agents and the profits of their industry and sagacity belong to the employer who hires them and pays them precisely for this. “Quidquid parcit, parcit domino.” The fact that Mary would have spent all the money given her by her employer, had she bought the goods from the firm designated by Mr. Smith, without any advantage accruing to her employer, does not change the case. The money that she has over is Mr. Smith’s money, and res clamat domino. Mr. Smith has not abdicated his right to his money, or to that part of it which is still in the hands of his servant, nor has he conveyed any rights in it to Mary. It is the same as if Mary had saved the money from Mr. Smith’s house, while the same was being destroyed by fire; the saving of the money or the rescuing of property from destruction by fire, does not transfer ownership of the money or property from the owner to the rescuer. The money belongs to the original owner, in this case to Mr. Smith, and must be restored to him. The reason that Mary urges in justification of retaining the difference in price, namely, that the difference represents the fruit of her own industry, is hardly a valid reason. In some particular case we can see how it might be, but ordinarily there is no special industry manifested in a case like this, nor is there any extraordinary sagacity or special labor required, any more than what the ordinary run of servants would quickly put in evidence if it were just and right to profit by it.

Nor is the other reason that Mary advances to justify her conduct a good and valid reason, namely, that she is underpaid and the profit that she makes on her purchases makes up the balance of the wages that she thinks are due her. She contracted with Mr. Smith of her own free will to work for a certain wage, and she can not of her own authority increase her pay. She must keep the contract. If secret compensation were allowed to servants in cases like Mary’s, the door would be opened to all kinds of stealing. Innocent XI was assuredly right when he condemned the following proposition: “Servants and domestics are allowed to take secretly from their employers enough to compensate them for their work if the same exceeds the salary they receive.”

“Male and female domestic servants may secretly take from their masters in order to compensate for work which they judge to exceed the salary they receive” (Prop 57, damnata ab Inno, XI).

Vol. II, Case XLVI: A Case of Restitution

A workingman, named Caius, went one evening with some companions for a walk in the outskirts of the city. Suddenly he was set upon by an exasperated enemy, Gracchus, who had been lying in wait for him, and who threw him from the roadway down into the ditch. The violent fall from considerable height might have caused serious injuries, even fatal ones; as a matter of fact, however, Caius was not hurt. Nevertheless he pretended to be injured, and had his friends carry him home. Subsequently he brought suit for assault, in consequence of which Gracchus was sentenced to a term in prison, also to pay Caius damages to the amount of fifty dollars; furthermore Gracchus had to pay costs, and suffered in consequence of his imprisonment a lapse in wages, so that his financial loss amounted in all to about one hundred dollars. Caius wishes to know whether he must make restitution to Gracchus.

Answer. 1. Caius by his false accusations against Gracchus has formally violated justice, and is therefore obliged to restitution, for he biased the court, and the measure of punishment, in an effective manner, as the nature of the complaint is the basis upon which jury and judge find according to law. For this reason, presuming the law and the court are just, sentence and punishment in their moral justification depend entirely upon the complaint. If this is false and unjust, so are sentence and punishment. This is plain and therefore Caius can not be exonerated on account of lack of intention. Indeed we may safely say: he intentionally misstated the complaint so that Gracchus’ punishment might be heavier; for nemo gratis mendax. Hence it is immaterial for our case what particular motive induced him to lie in court, whether hatred, greed, or what else. All conditions are therefore present that constitute the obligation of restitution in the forum of morals, namely an unjust action which is a per se effective and theologically culpable cause of the harm. Caius for this reason is obliged to restitution, and he alone, provided the court was fair, as may be presumed.

The question is then, to what extent is he to make restitution? To the extent of the difference, the increase, caused by the false complaint. For it was Caius’ right to sue, though the charge was properly not that of corporal injury, but that of an attempted crime, which would not have included indemnification for Caius in the sentence, as only actual injury, not the attempt at it, entitles to such. For this reason Caius must, first of all, make restitution of the fifty dollars. As regards the rest: costs and loss of wages, we may suppose that the delinquent would also have been condemned to pay costs to about the same sum, had the complaint been according to facts, while the term of imprisonment would have been shorter. Strictly speaking, therefore, Caius has to refund what money value corresponds to the increase of the imprisonment due to the false charge. On the other hand, he may now, when it comes to the consideration of restitution, compensate himself for all the disagreeable vexation which the affair has occasioned him without his fault. Both matters in their moral valuation might be considered as about equivalent and so there would be little or nothing of the one hundred dollars remain for restitution to Gracchus. As a matter of fact, a hundred dollars is not too heavy a fine for an offense that might have easily caused serious injury, even death.