The Mode of Restitution

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

1. 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.

2. 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.

3. 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:

1. 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.

2. Restitution to be made to a municipality, institute, or association should be assigned to the administrators of the goods of the municipality or association.

3. 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).

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).

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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