Some Special Cases of Restitution

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).

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.

In goods of fortune in particular cases, namely: 1. as regards taxes; 2. as regards military service; 3. as regards the plundering of goods during the disturbance of France at the end of the eighteenth century.

752. Things to be noted. - I. Some goods of private persons unjustly proscribed, des émigrés, were occupied by the Republic, others by private persons, as was just said concerning ecclesiastical goods.

II. Louis XVIII, in the year 1814, promulgated a public Constitution for confirming possessions of this kind. - Charles X, by a law passed on April 27, 1825, declared all national properties inviolable, and established that indemnity must be paid to injured private persons. Thirty millions, at a capital of one billion, are assigned to indemnity by the State for Frenchmen whose landed properties situated in France, or which formed part of the territory of France on January 1, 1792, were confiscated or alienated in execution of the laws concerning the émigrés, the deported, and those condemned by the Revolution.

753. Resolves. - 1. Private persons who by their own authority occupied these goods are still held to restitution, and never will be able to prescribe, since they were possessors of bad faith.

2. The acquirers of national goods were held to restitution until the time of the Restoration; for no legitimate transfer of dominion had been made.

3. The same acquirers from the year 1814, and especially from the day of April 27, on which the law of indemnity was sanctioned, are no longer held to restitution, provided the acquisition was legal or made by authority of the Government.

4. It is not certain that movable goods are comprehended under the benefit of ratification; for the law of the year 1814 has no word concerning them, and the law of the year 1825 speaks only of immovables. Nevertheless very many think that concerning movable goods which are joined to estates or houses the same must be thought as concerning immovables; because the accessory follows the principal.

End of the Treatise on Justice and Right.

Besides damage viewed generally in goods of fortune, damage in goods of the soul and in goods of the body must be considered. Therefore we must speak of this special damage, and of the obligation of restitution which arises from it.

I say. Although a voluntary and unjust homicide or mutilator is held to nothing precisely for life or member, at least according to the rigor of law, because these goods are not estimable by money, nevertheless he is held to compensate all temporal damages, if any have directly followed from homicide or mutilation. But that it may be known what properly ought to be restored and to which persons, three kinds of damages are to be distinguished. For 1st, some are done to the one killed or mutilated himself, as, for example, expenses for the cure of the wound; and reparation of these must be made also to the heirs after death, unless the person killed has condoned it; 2nd, others are inflicted upon wife, children, father, and mother, who all not only were in fact sustained by the person killed or mutilated, but also by nature itself had a right to this support; and payment of these must be made unless they are condoned by those same persons who suffered the damage; 3rd, still others are done to any creditors whatever of the person killed or mutilated, and these are contracted when there is an intention of harming them directly. - Cf. St. Alphonsus, nn. 631, 634, and 639; and Hom. Ap. nn. 82 and 83. - Lugo, disp. 11, sect. 4. - Ballerini, note (a) (b) and (c), p. 606.

You Will Resolve. - 1st. A homicide probably is not held to restitution toward the wife and children of the one killed for future damages, if they can easily provide for themselves. The reason is that near relatives do not have a strict right except to those things which the one killed ought to have expended upon them from strict piety; but in the aforesaid case the obligation from piety would not have been strict. Therefore . . . - Cf. St. Alphonsus, Hom. Ap. n. 87. - Reuter, n. 384. - Lacroix, lib. 3, part 2, n. 309. - Elbel, n. 315.

2nd. If the killer indeed foresaw the damages of the creditors of the one killed, but intended them only indirectly, he is not held to repairing them, because then he is only their cause by accident. - Cf. St. Alphonsus, n. 634.

3rd. If a homicide is punished with death before he has repaired the damages, his heirs are still held to repairing them, because by the penalty he indeed satisfies vindictive justice, but not commutative justice. - Cf. St. Alphonsus, Hom. Ap. n. 90.

4th. He who killed another in a duel, whether he was the challenger or the accepter, probably is not held to repairing those damages which touch only the person killed himself and can be remitted by him. The reason is that the one killed, accepting or challenging to a duel, is judged to have wished to condone the obligation which he could have condoned, as is that which arises from damages of the first kind.

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.”

I. Hitherto of restitution in general: now restitution in particular is to be treated; and first of all restitution on account of voluntary homicide, in which two losses can be regarded. The first is the taking away of life or of members; the other is that which follows upon the privation of life or the mutilation of members. He who voluntarily snatches away another's life injures commutative justice — for the discourse is not now of mutilation or homicide which follows upon necessary defence. But life once snatched away, or a member cut off, cannot be rendered back. What therefore is to be done, that injured justice may be repaired? If the judge punish the slayer or mutilator, no other satisfaction is required: since the judge commands that all the losses which are to be repaired in justice be repaired. It is disputed therefore concerning what is to be restored by a slayer or mutilator not punished by a just judge.

II. QUESTION I. Is a slayer or mutilator bound to compensate a personal injury with goods of fortune? ANSWER. There is a twofold opinion. One denies that anything is to be restored on account of a personal injury, that is, on account of the mere taking away of life or the mutilation of a member. The other opinion, which is the more probable, affirms it. Because he who kills, mutilates, or injures another violates commutative justice. Therefore this justice ought to be repaired by that way which is possible. But although life or a cut-off member cannot be rendered back, it can nevertheless in some manner be compensated with goods of fortune. He who owes to restore a thousand, but can only a hundred, will he be free from the restitution of a part, because he cannot render the whole? As regards practice therefore, it is the confessor's part to hand down that a homicide or mutilator, besides the compensation both of ceasing gain and of emerging loss to be made to the heirs, should bestow something for the life or member taken away, should take care that sacrifices be offered and alms laid out, and should study to console and help with all his might the whole family of the slain or mutilated man.

III. QUESTION II. What losses ought a slayer to compensate? ANSWER. All the losses which follow from the killing or mutilation are to be made good. There are to be compensated the expenses of the cure, and all the gains which the slain or mutilated man could have obtained by his art, trade, or industry, when there are sons, or sisters, a wife, and other relations who suffer such losses from the killing or mutilation. But if there be no one who suffers loss, nothing is to be restored. Authors dispute how many years of life are to be reckoned in the slain man. To settle the matter in few words, all these things are to be subjected to the judgment of prudent men. Killings among nobles are wont to be made good by no compensation. If a homicide should pay the penalty of retaliation, the heirs would be liable to no restitution, because when the penalty of death is inflicted all things are reckoned remitted: so the common custom obtains. If anywhere an opposite reasonable usage prevail, it is to be observed.

IV. If one provoked to a fight kill the provoker with the moderation of a blameless defence, he is bound to restore nothing. But if he had gravely exceeded the limits of moderation, then he would owe to restore in proportion. If they have mutually provoked one another, nothing is to be restored, because each yielded his right. If one has provoked the other by casting up the mark of cowardice, the provoked slayer is not held to restitution, say many of the younger authors: because he could not refuse the duel without disgrace. This reason seems to me to fight with the Gospel. Wherefore to me the following opinion of Fr. Viva is false, unless all things deceive me, who in Vol. III, part 3, question 7, article 1, no. 2, says: “Although he sometimes sins by not fleeing against charity, if namely he could flee without loss of honour, yet he does not sin against justice. Therefore he is not held to restitution.” What? Does a Christian sin against charity when he cannot flee without loss of worldly honour, and yet not sin against justice? But who would not disapprove this doctrine? For he is bound to take to flight, while the way lies open, with the loss of that honour which is set in the opinion of a raving world.

V. QUESTION III. Whether from casual homicide there arises a debt of restitution? ANSWER. Titius wounded Sempronius with a wound by no means mortal: by the negligence of a surgeon or physician Sempronius dies. Titius is bound to compensate the losses which follow not upon the death but upon the wound. If nevertheless Sempronius die of the wound received because a surgeon is not found, Titius the wounder is bound to compensate the losses which follow the death. From homicide following by accident nothing is to be restored. A cleric exercises forbidden hunting, uses all diligence that he may avoid a homicide: if this follow, he is bound to restore nothing. If on the contrary the homicide followed from gravely culpable negligence, then all the losses would be to be restored.

VI. QUESTION IV. To whom is restitution of the losses which follow from homicide to be made? ANSWER. It is to be made to the heirs — not to the free heirs, but to the necessary. Brothers and blood-relations, though they succeed ab intestato, are not necessary heirs, and consequently to them no restitution is to be made. Wives, sons, and parents are necessary heirs, to whom restitution is to be made.

VII. Moralists disagree whether a homicide is bound to pay the debts of the slain man to his creditors. The more common opinion denies it, since no action is given to the creditors against the slayer or mutilator in the exterior forum, nor even in the interior. The circumstances nevertheless are to be regarded, and the counsels of wise men to be heard, when like cases occur, that in most grave delicts that which is just may be determined.

VIII. If a wounded lord be absolved, and before he dies remit, together with the injury done him, also the losses to be made good, the slayer is free from restitution. For the rest, although a wounded man be bound to remit every injury done him and to love his wounder, he is nevertheless not obliged to remit the losses thence emerging; nay, if his wife, sons, grandsons, or parents should be gravely in need, he would sin against charity if with so great a cost and detriment to his own he condoned the losses.

IX. QUESTION V. What ought a deflowerer of a maiden to restore? ANSWER. Authors commonly absolve a deflowerer from restitution when the maiden consented spontaneously, and is her own mistress. The civil laws appoint that a ravisher either endow or marry the maiden ravished, because they always presume that she was seduced by blandishments and fraud. And indeed in practice a ravisher is scarcely to be absolved except from marrying or endowing the maiden. The circumstances nevertheless are to be regarded. If the defloration be public, accomplished by threats or fraud, then not only is the stain of corrupted virginity to be compensated, but also the mark of infamy inflicted upon her parents. A deflowerer is not bound to give a whole dowry, but to increase the dowry to be given by the parents. If nevertheless the deflowered woman be poor, then a whole dowry is to be given by the ravisher. If a doubt occur whether the maiden had been previously deflowered, the safer part is to be chosen, because no one is presumed wicked unless it be proved. Wherefore even in a doubtful case the losses are to be compensated. Nay, if in fact she was not a virgin, but was nevertheless so reputed, and the ravisher defamed her, then the losses are to be compensated. But if from such intercourse she suffered no infamy, nothing is owed to be restored. The same which has been said of a maiden is to be said of an honourable widow.

X. If by entreaties, blandishments, and little gifts alone he draw a maiden into consent, authors commonly teach that he is held to nothing, as has been said, because all these do not take away liberty. If nevertheless the entreaties were so repeated, and the blandishments so assiduous, that they were equivalent to violence, then the losses would be to be compensated. Whosoever has deflowered a maiden under hope of marriage is bound to marry her, because this contract is onerous and binds both parties, even if the promise were feigned. For although a contract concerning a shameful thing be null, the penalty of the crime committed is nevertheless to be undergone.

XI. These things are absolutely true: but for the rest, if the girls of our time be regarded, they are not seldom so shameless, so stripped of modesty, so brazen, crafty, and bold, that they themselves attack young men and men, and they themselves circumvent, bewitch, and craze them with their blandishments and tricks, either to plunder their purse or to draw them into matrimony. Wherefore, for the repressing of so great an audacity of girls, a law ought to be established that the deflowered should mourn their ravished virginity in perpetuity. This is always to be held before the eyes, that maidens modest, bashful, lovers of solitude, and fleeing the meetings and conversation of youths and men, are violated by no one. If therefore they themselves are forward, and hawkers of their own virginity, that others may learn, they ought to be punished as a public example, not endowed; especially if the deflowerers be of a nobler and higher estate. This nevertheless I submit here to the judgment and decision of prudent men, that that may be determined which is expedient for the public good.

XII. QUESTION VI. What is to be restored on account of adultery from which offspring follows? ANSWER. When from certain signs it is evidently established that the offspring was conceived from union with the adulterer — either because the husband was absent, or because he was sick, or because he was impotent — then all the losses are to be compensated which the husband has suffered from the third year of age in rearing the boy: for in the first three years the mother, but afterwards until the time at which the son can provide for himself, the father is bound to feed the son. What if a doubt occur whose the offspring is? Some, resting upon that axiom, the condition of the possessor is the better, deny the debt of restitution.

XIII. What seem to me the more probable are the following. When the adulterer and the adulteress have perpetrated the adultery by mutual consent, both are held in proportion to feed the boy and to compensate the losses to the husband or his lawful heirs: if one fail, the other is held in solidum. On the contrary, if the adulterer provoked the adulteress, and drew her into adultery by blandishments and little gifts, then the adulterer alone, as the principal cause, is liable to compensation. The adulterer failing, nevertheless, the adulteress is held. When it is doubted whose the offspring is, then judgment is to be made in favour of the marriage. But if the doubt persist, and reasons equally probable or more probable persuade that the offspring is spurious, I should judge that compensation is to be made in proportion to the doubt.

XIV. When an adulteress admits two men, one after the other, and it is unknown whose the offspring is, who of these is held to compensation, when it is established that the offspring was conceived by the work of one or the other? De Lugo, López, Trullench, Sánchez, Soto, and others free both; this opinion the Salmanticenses and Cardinal Cozza also defend. This opinion is to me improbable. What? It is certain that one or the other is the true parent, and both shall go free! If each perpetrated adultery, each ought to undergo the penalty. If each had attempted homicide, though it were unknown which of them had in fact perpetrated the homicide, in what forum would each go free? Each perpetrated adultery, each exercised the procreative action. Therefore neither is innocent, although one begot the son. Therefore each is bound in proportion to feed the son and to compensate the losses. The arguments of the opposite opinion do not press. They would have him innocent who did not beget. But how innocent, if he committed adultery and posited the generative action? There are therefore two guilty. Therefore both are to be punished: both ought to concur in making good the losses; and one failing, the other is held in solidum.

XV. QUESTION VII. An adulterer knowing for certain that offspring was procreated from his adultery, what is he bound to render to the lawful sons? ANSWER. Diana, Henríquez, Soto, Ledesma, and others contend that an adulterer is not bound to compensate the losses which the lawful sons undergo in the portion of the inheritance or of the legacies which the spurious son receives, when he did not persuade the substitution of the spurious son. This opinion is commonly disapproved; and they teach that both the adulterer and the adulteress ought to compensate all the losses which come to the lawful sons by reason of the spurious son, even if the adulterer did not persuade the substitution. Since each was the cause why the spurious son is reputed lawful: therefore each is subject to the reparation of the losses. First therefore each ought to use all diligence that the losses of the lawful offspring be avoided, while this can be done without loss of reputation. If the wife have paraphernal goods, or others free, she ought to give these to the lawful sons. But if the adulteress possess no free goods, what then? Ought the adulteress to betray herself, that she may avoid the losses of the sons? If the adulteress conceive no morally certain hope of preventing the losses which threaten the lawful sons on account of the offspring procreated from adultery, she is not bound to disclose the crime to the spurious son, even if she cannot compensate the losses: since she would imprudently squander her reputation, while she prudently doubts that the manifestation of her crime would profit. Nor is it to the purpose that you object that a defamer ought with the loss of his own reputation to retract what he said, even when he doubts that his retraction will profit: since indeed the defamer injured his neighbour in reputation, and therefore ought in the same kind, with the loss of his own reputation, to make good the blackened reputation. But an adulterous mother inflicted losses upon her sons not in reputation, but in money. Wherefore while she cannot compensate in the kind of money, she does not seem bound to make good losses of this kind with the loss of her reputation and honour.

XVI. A son is not bound to give credence to a mother testifying, even with an oath, that he is spurious, as the common opinion holds: because the word of one witness does not bring in a necessity of believing, especially while she lays open her own shame, with detriment to him who believes. There is added that, since the son by the common persuasion and by his own is reputed lawful, he cannot by right be deprived of the inheritance unless it be established by certain witnesses and proved that he is spurious. If the woman be of a lower condition and of slight reputation, and a vast inheritance is to be taken by the spurious son, then she ought to reveal her crime, as all commonly teach: for indeed a woman of slight reputation can easily be induced to make the loss of it. On the contrary, authors commonly free an honourable woman of bright reputation from the manifestation of her crime, even if a vast inheritance were to be taken by the son. But as regards this, the circumstances are to be regarded, and, all things weighed, it is to be determined what is more expedient. For a certain rule can scarcely be assigned.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Twofold gain can come from usury. One is that inducement of the loan which is exacted; the other is that which is begotten from this inducement.

Concerning the first, all Catholics agree that it is to be restored; but there is controversy as to for what cause.

The first opinion is that of Adrianus quaest. de usura, Scoti in 4. dist. 15. quaest. 3. art. 3. and Paludani ibidem, after the Gloss in cap. si quis usuram, 14. quaest. 4. who say the reason is, not because the usurer has not acquired dominion, but because he inflicted loss on the borrower by inducing him, without reasonable title, to give the accretion; Therefore he ought to repair the loss by restoring.

The true opinion, however, is that the foundation of restitution is, because the dominion of that accretion has not been transferred to the usurer. So D. Thom. quaest. 78. art. 3. Alens. 3. part. quaest. 36. memb. 4. art. 2. Altisiodor. 3. part. tract. 21. quaest. 1. Henricus quodlibet. 4. quaest. 27. Richardus in 4. dist. 15. art. 5. quaest. 5. Sylvester verb. Usura, 6. Caietanus tract. de usura, quaest. 1. Sotus lib. 6. de iust. quaest. 1. art. 4. Medina quaest. 4. de usura. Valentia disp. 5. quaest. 21. puncto 3. and almost all others.

This is the opinion of D. Bonavent. in 4. dist. 15. part. 2. art. 2. quaest. 1. ad 4. et in speculo animae, cap. 2. §. tertius fructus, etc.

It is proved from D. Bonavent. ibi: it stands in the same way with one who gives involuntarily to a robber out of fear, and with one who gives out of the necessity of coercion to the usurer; but the robber does not acquire dominion over the thing which he extorts on the way from the merchant: Therefore, since he does not receive dominion from the borrower, he has it not, unless he obtained it from the Prince; but by law he does not acquire it: Therefore. The minor is proved first from the laws cited quaest. 1. And although by civil law it is permitted him with impunity Tit. de usuris, ff. et Cod. because the borrower seems to be compelled to pay the usuries, as is evident from leg. prima, Cod. de Usuris, nevertheless now this has been taken from them in Canonical Law, especially in Clementina unica de usuris, where judges are commanded under excommunication to pass sentence against Usuries. So Valencia puncto 1. Sotus lib. 6. quaest. 1. art. 1. after D. Bonavent. as I showed Tract. de legibus, Disput. de Iure Canonico.

It is proved second, because if dominion had been transferred, the usurer would not be held by justice to restitution.

Nor is it enough that the usurer ought to give back, because a reasonable title of receiving is lacking. For a reasonable title is not necessary for a donation to be valid, as is evident, when someone out of levity donates something to a Scurra; for that Scurra is not held to restore it, just as neither a stage-player, as Valencia teaches puncto 3. with S. Bonavent. loco citato.

I add, that not only the real, or exterior, usurer, but also the mental one, is held to restore what he received beyond the principal; if he thinks, or ought to think, that the borrower gave it by the force of the loan. So it was defined in cap. Consuluit, extra de Usuris, and it is the common doctrine.

The arguments for the opinion of Scotus only prove that the borrower indeed wishes to give that gain, but compelled by necessity. Therefore that external giving does not suffice for transferring dominion, as is held in leg. Nunquam, ff. de acquirendo rerum dominio, and Valencia noted it with D. Bonavent. above.

As to the gain emerging from the accretion.

D. Thom. DISTINGUISHES that if that thing is fruitful, certainly the fruit is to be restored; but if the gain was made from a thing usurious, not fruitful, but consumable by use, as money, it is not to be restored, because it is not the fruit of the usury, but of industry: It is the common opinion, as Valencia says, except for very few, in Medina quaest. de restitutione Usurarum.

This opinion is defended by more of the Thomists. Valencia solves the arguments to the contrary.