Time and Place of Making Restitution

513. On the time of restitution. 1. Restitution, and indeed integral restitution, of itself must be made as soon as possible: for detention of another's thing is the continuation of an injury; but just as it is illicit to inflict an injury, so also to continue it.

a. He acts unjustly and is held for damages who, although he can at once restore the whole, wishes to restore only by degrees, or to leave to his heirs the obligation of restoring.

b. He who cannot restore the whole is bound at least to the part which he can return: for the owner has a right to each single part of the whole thing. Hence penitents must be urged to restitution of a part at once, especially if the part is notable and the whole can be restored only after a long time.

c. He who cannot restore at once is bound meanwhile to take care that he can satisfy his obligation as soon as possible: for he who is bound to the end is also bound to the means necessary for obtaining the end.

2. Delay of restitution, provided a serious will of restoring is retained, is then only a grave sin if a new grave damage arises for the owner from it, or if restitution is rendered impossible.

alpha. He who has and retains the will of not restoring, although he adverts rather often to the obligation of restoring, commits numerically one sin, which becomes graver the longer restitution is delayed. But he who conceived the intention of restoring and retracts it, sins gravely as often as he withdraws from the intention of restoring.¹

beta. He who notably delays restitution from a just cause is not bound to repair the damages which befell the owner from the delay, whether he is a debtor from contract or from offense: for he who has the will of restoring licitly delays restitution, and is not the unjust nor theologically culpable cause of the damages which befall the owner from this, since they arise from a just delay of payment.²

gamma. In order that restitution can be delayed longer, it is required that the damage which the debtor incurs from restitution to be made at once be much greater than the damage which befalls the owner from delayed restitution.

Note 1. Those who delay restitution until death and leave the care of restoring to heirs sin not only because of the delay of restitution, but also because of the danger to which the owner is exposed of never receiving his own thing: for it can happen that the heirs either do not wish or are not able to restore. Yet because debtors who entrust restitution to heirs are usually in good faith, especially if restitution is to be made to the poor or pious causes, care must be taken lest they be deprived of this good faith without hope of fruit.³

Note 2. The faithful sometimes are of this opinion, that souls are detained in purgatory for so long until the restitution owed by them has been made. Indeed a theological reason for this persuasion cannot be adduced, but it rests wholly on apparitions of souls which are narrated to have indicated neglected restitution as the cause of prolonged penalty and to have demanded restitution. Although it may be conceded that by exception this can sometimes happen, yet that this is ordinarily or more often established by God seems to have to be denied; wherefore this erroneous persuasion must be removed from the faithful.⁴

¹ Cf. De principiis^9, n. 306.

² Cf. St. Alphonsus, n. 680; Ballerini-Palmieri III, n. 508; Burghaber, Casuum conscientiae centuriae tres, cent. 1, cas. 10.

³ Cf. Ballerini-Palmieri III, n. 509.

⁴ Cf. Ballerini-Palmieri V, n. 761.

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.

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:

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

2. 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:

1. 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.

2. 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.

3. 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.

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:

1. 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.

2. 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.

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.

Whether, as regards debts from injury, damages arising from delay of restitution are to be compensated? - As regards debts from injury, generally all damages which have followed from delay are to be compensated. For one contracting debt by injury takes upon himself the burden of compensating damages of this kind. - But whether extraordinary damages also must be compensated, or those which do not necessarily follow from delay of restitution, is controverted. It seems probably to be denied, because these damages could not have been foreseen even confusedly, and therefore cannot be imputed. Vogler 426.; C. B. 286, 287. Cf. here 1453.

What of time as regards debts from contract? As regards debts from contract, generally one must stand by the conditions placed on the contract concerning time, or concerning other circumstances, unless it is prudently presumed that the will of the other contracting party is different. L. 678. Hence 1. restitution, or rather payment, must be made at the time about which it was expressly or tacitly agreed. - 2. The debtor can anticipate, if the term assigned for payment is in his favor, as ordinarily is accustomed to happen; but otherwise if the same term tends to the utility of the creditor, as, e.g., in the furnishing of money with profit to be received. - 3. If the term has not been fixed, according to the opinion of many the debtor can without sin, at least grave sin, generally wait until he is admonished by the creditor, unless nevertheless the latter takes damage from this, or does not dare admonish out of fear, or omits admonition from forgetfulness or impotence. C. A. 1417, 1418.

Whether a debtor deferring restitution from a just cause is held to render to the creditor legal interest, ceasing profit, emerging damage? It is controverted. The first opinion denies it, if the debt is from contract; because then the debtor is not the unjust and culpable cause of that damage, for he is not in culpable delay; but it affirms if from delict, "because then the first unjust acceptance truly was the culpable cause of the damage." Yet this damage also ought to have been foreseen at least confusedly. The second opinion denies it even in this second case, because "the damage then does not come to the creditor from that first unjust acceptance, but from the later retention, which is done justly." L. 680, 704. But this retention is always culpable in the cause. C. A. 1333, 1334, 1336. Cf. C. G. 1151, 1153.; Gousset in h. a.; C. B. 284 seqq.

712. • I. As regards any debts whatever, generally restitution must be made as soon as it can be done without grave inconvenience. For natural right demands that you not retain another's thing when the owner is reasonably unwilling.

Hence 1. he who culpably defers restitution ¹ remains in continuous sin, and cannot be absolved. Besides, if damages come to the owner from the delay of restitution, he is held to compensate them.

¹ Add: and notably, as the Author afterwards explains; and if it is a matter of grave matter.

2. If someone, having the purpose of restoring, defers for some time short of 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 of deferring, for example, hope of a more convenient occasion, etc. - St. Lig., Hom. apost., n. 104, 105.

3. He who wished to restore by parts, when he could easily restore the whole, would not be absolved ², because the owner is reasonably unwilling also in this. The same must be said of him who, although he can restore during the course of life, nevertheless defers until death; or who, constituted in danger of death, would reject without sufficient reason the obligation of restoring onto his heirs, unless perhaps it is a matter of restitution of uncertain goods. - Hom. apost., ibid.

² Understand, when it is grave matter.

II. As regards debts from injury: all damages which have followed from the delay must be compensated, even when the delay was inculpable. - Hom. apost., ibid.

But whether extraordinary damages also must be compensated, or those which do not necessarily follow from the delay of restitution, is controverted. - It seems that it must probably be denied, because these damages could not be foreseen, nor consequently can they be imputed. - Vogler, n. 426. - Lugo, etc.

714. • III. As regards debts from contract, generally one must stand by the conditions appended to the contract concerning the time, or concerning other circumstances, unless it is prudently presumed that the will of the other contracting party is otherwise.

Hence 1. restitution, or rather payment, must be made at the time concerning which it was expressly or tacitly agreed.

2. The debtor can anticipate, if the term assigned for payment is in his favor, as ordinarily is accustomed to happen; but otherwise, if the same term turns to the utility of the creditor, as, for example, in the furnishing of money with profit to be received.

3. If the term is not fixed, according to the sentence of several, the debtor can generally wait without at least grave sin until he is warned by the creditor, unless however the latter thence takes damage, or from fear does not dare to warn him, or from forgetfulness or inability omits the warning.

4. If the debtor has a just cause of deferring, he is not held to compensate damage arising from the delay. - Thus commonly, with St. Lig., n. 680.

Q. Whether he who deferred restitution from a just cause is held to compensate ceasing profit or arising damage?

Resp. He is held when the debt comes from delict, because although he did not sin by deferring restitution from a just cause, nevertheless from the preceding injury he is truly the unjust and culpable cause of that damage, if it was then sufficiently foreseen ³. - Thus commonly, with St. Lig., n. 680 and 704, against others. - But if the debt comes from contract, he is not held; because then the debtor is not the unjust and culpable cause of that damage, since he is by no means supposed to be in culpable delay, and therefore it does not appear by what title he would be held to it. - St. Lig., ibid., and others more commonly. - See Casus, n. 704.

³ The Doctors who hold this sentence do not restrict the burden of restitution to damages in some way foreseen, but even to fortuitous ones (see Lugo, Disp. 21, n. 17). But although St. Alphonsus (Lib. 3, n. 680) said that this sentence is both more common and more probable, nevertheless not a few also judge the opposite probable (apud St. Alphonsus, l.c., and Croix, Lib. 3, P. 2, n. 252); and this will be able to be of use to Confessors, so that they may lessen the difficulty, never not arduous, of restoring.

4. Quando? When must restitution be made? This question is solved by St. Thomas as follows: “As it is a sin against justice to take another’s property, so also it is to withhold it, since to withhold the property of another against the owner’s will is to deprive him of the use of what belongs to him, and to do him an injury. Now it is clearly wrong to remain in sin even for a short time, and one is bound to renounce one’s sin at once, according to Ecclus. XXI, 2: ‘Flee from sin as from the face of a serpent.’ Consequently one is bound to immediate restitution, if possible, or to ask for a respite from the person who is empowered to grant the use of the thing.”⁸ And again: “Although the precept which enjoins the making of restitution is affirmative in form, it implies a negative precept, forbidding us to withhold another’s property.”⁹

⁸ Summa Theol., 2a 2ae, qu. 62, art. 8: “As it is a sin against justice to take another’s property, so also it is to withhold it, because by the fact that one withholds another’s property against the owner’s will, one prevents him from the use of his own property and thus does him an injury. But it is clear that it is not lawful to remain in sin even for a short time, but every one is bound to abandon sin at once according to the saying: Flee from sin as from the face of a serpent (Eccli. xxi, 2). And therefore every one is bound to restore at once, if he can, or to seek a delay from him who can grant the use of the thing.”

⁹ Ibid., ad 1: “The precept of making restitution, although affirmative according to its form, nevertheless implies in itself a negative precept, by which we are forbidden to withhold another’s property.”—Noldin, II, pp. 531.

Restitution, therefore, must be made at the first opportunity that presents itself, if it can be done without serious inconvenience (sine gravi incommodo); at least one must be sincerely resolved to make restitution as soon as possible (quamprimum.) This duty not only binds the possessor in bad faith, but he who is in good faith must likewise make restitution to the lawful owner as soon as he perceives that property which he has in his possession belongs to another.

To resolve not to make restitution, or willfully to postpone it, is a new sin, and any additional damage or loss that results to the owner from such postponement, if intended or foreseen, involves a further duty of restitution. If the postponement is caused by real want, fear of scandal or infamy, or dread of losing one’s financial status under the law, it is excusable, provided the creditor is not in dire need. In every case the debtor must be ready to reduce his living expenses as much as possible in order to be enabled to make restitution.

If restitution has to be made in consequence of a formal act of injustice, but is postponed for sufficient reasons, any loss or damage resulting from the delay must also be made good, unless the creditor himself might easily have prevented it, but knowingly and willingly omitted to take the proper precautions.

In the case of contractual debts the debtor is not liable for damage that arises to the creditor if the payment of the debt is delayed without any fault of his.

5. Ubi? In determining the place where restitution should be made, it is necessary to distinguish between him who possesses the property of another in good faith and him who possesses it in bad faith.

a) The possessor in good faith must make restitution “ibi, ubi est res,” that is, he is bound to notify the owner that the property is in his possession and will be surrendered to him at his own cost or risk. The cost and risk of transfer, therefore, fall upon the owner, for, “Casum sentit dominus,” or “Quod casu perit, domino perit.” The possessor who is in good faith satisfies his obligation if he hands the property over to a reliable agent for delivery to the lawful owner.

b) He who in bad faith possesses property belonging to another as well as he who has injured another unjustly, must make restitution “ibi, ubi est dominus,” that is to say, he must return the property to the place where it would be if he had not taken, damaged, or unjustly retained it. This duty binds until the property has been restored to its rightful owner. The possessor malae fidei has, moreover, to bear the cost of transportation, unless the owner himself has designated the manner of its return, or expressly left it to the choice of the debtor, and the latter chose a common and safe carrier, or the matter has been attended to by a court of justice.

The question whether the possessor malae fidei would be responsible for the cost of transportation in case it exceeded the value of the property itself, has become futile under modern conditions, where transportation is both cheap and safe.¹⁰

¹⁰ Cfr. St. Alphonsus, Theol. Mor., l. III, n. 597 sq. (ed. Gaudé, II, 82 sqq.); Idem, Homo Apostolicus n. 65.

237. Principle. Restitution owed is to be made as soon as it can be made, morally speaking.¹⁰⁷

The reason is that it is not lawful to retain another's thing when the owner is reasonably unwilling. But the owner is reasonably unwilling that another possessor retain the thing longer than he can restore it here and now. Hence it is a grave sin, without cause, to defer for a notable time the restitution of grave matter. It is otherwise, however, if the delay is slight. What constitutes a notable time cannot be determined with certainty. If notable damage arises to the legitimate owner from an unjust delay, e.g., risk to the principal or gain or interest ceasing, then it seems to be a grave sin.

But he who for a just cause defers restitution does not indeed sin; he is nevertheless then held to repair all the damage which he foresees the creditor will suffer therefrom. Thus at least if the obligation of restitution arose from a delict.¹⁰⁸

He who has the will not to restore and does not revoke it commits only one sin, although he adverts to the obligation of restoring more frequently; this sin, however, is aggravated the longer that depraved purpose endures.¹⁰⁹

Note. The confessor ought to insist that restitution be made as quickly as is morally possible, and especially he should not permit restitution to be deferred until death. Moreover, he should urge that at least partial restitution be made if total restitution is impossible. If the penitent culpably omitted the restitution promised in preceding confessions, he ordinarily cannot be absolved before he has actually restored.

¹⁰⁷ Cf. St. Thomas, S. theol. 2, 2, q. 62, a. 8.

¹⁰⁸ Cf. St. Alphonsus, l. c. n. 680.

¹⁰⁹ Cf. above, I, n. 378.

238. 1. A possessor in good faith satisfies the obligation of restoring if, at the place of possession, he delivers the thing possessed by error to the free disposition of the legitimate proprietor.

Therefore, it suffices that he inform the proprietor of the existence of his thing, nor is he held to undertake the expenses or dangers of transmission. The reason is that the possessor in good faith possessed another's thing without fault and is not held to suffer any damage from that inculpable possession.

2. A possessor in bad faith or an unjust damager ought at his own expense to restore the thing in the place where the owner would have had it if it had not been taken away, deducting, however, the expenses which the owner himself would also have made in transporting it.¹¹⁰

The reason is that the damager and possessor in bad faith ought to repair the whole damage which the owner suffered. But if the very thing taken away cannot be transmitted without great expenses, it suffices to send the price of the thing.

If the thing to be restored perishes by chance or by the fault of a third party in transmission, before it reaches the owner, the possessor in good faith is held to nothing, because the thing perishes to the owner; but the possessor in bad faith and the unjust damager are not freed from their obligation, but ought again to take care that the legitimate owner is rendered indemnified. Certainly, if the owner himself had designated the manner of transmission, then, in the case of loss, the owner and not the possessor in bad faith would have to suffer the damage.

¹¹⁰ Cf. Billuart, De iure et iust. diss. 8, a. 16.

239. Scholion. On restitution made through the assistance of a confessor. "Many probably judge that he is immune from a new restitution who delivered the money to be restored to a confessor, with whom it perished by chance or by the fault of a third party; for the confessor can be regarded as a messenger chosen from the presumed consent of the creditor, since restitution often cannot safely be made in another way without danger of infamy, and, besides, the confessor is by office a trustworthy messenger. - Hence, in practice, he who restores in this manner and thinks he has already satisfied his duty is not to be compelled to a new restitution." Thus Tanquerey.¹¹¹ This opinion is also defended by Lessius, Sporer, Tamburini, and more recently Frassinetti, Lehmkuhl,¹¹² and Noldin.¹¹³ I do not indeed deny the probability of this opinion, but in practice one should nearly always proceed in another manner. In a case in which the good to be restored perished without any fault either of the confessor or of the debtor, the confessor who is able to prove this misfortune should seek remission from the creditor, which in these circumstances will not be obtained with such difficulty.

St. Alphonsus¹¹⁴ poses the question: If a confessor imposed upon a thief that he distribute the thing taken away among the poor for the soul of the owner, notwithstanding that the owner is certain and known, has the thief satisfied the obligation of restitution? He deservedly answers in the negative, because it can in no way be presumed that the owner wills his thing to be distributed to the poor. Restitution ought therefore to be made again either by the thief or by the confessor who gave so false a counsel. Nevertheless, a subsequent confessor who learned this matter from the thief can leave him in good faith if he fears that grave inconvenience will arise from the admonition.

¹¹¹ Synopsis Theol. mor. de iust. n. 559.

¹¹² Theol. mor. I, n. 1225.

¹¹³ De praeceptis n. 501. St. Alphonsus treats this question excellently (Theol. mor. l. 3, n. 704), calling the opposite opinion common and to be held. But he concludes with these words: "Formerly I judged the first opinion [i.e., that which was expounded above from Tanquerey] truly probable; but after the reasons just adduced were subsequently better weighed, I greatly doubt its probability. - Yet, because Lessius and Sporer with Tamburini do not dare to condemn the first opinion, neither do I dare."

¹¹⁴ L. c.

796. • I. As to 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 while the owner is reasonably unwilling.

Hence 1° one who culpably defers restitution remains in continuous sin and cannot be absolved. Moreover, if damages come to the owner from the delay of restitution, or profit ceases, he is bound to compensate these things.

2° One who defers restitution a little, for example for 20 days (L. IV. 679), without grave inconvenience to the owner, is not easily, from this precise reason, to be condemned of mortal sin, indeed not even of venial sin if there is some cause of deferring, for example hope of a more convenient occasion, etc.¹ - Yet recall what was said n. 719. 4° concerning absolution regularly not to be conceded to those who, when morally they can, do not restore before absolution.

3° One who would wish to restore in parts, when he can easily restore the whole, would not be absolved; because the owner is reasonably unwilling even in this. The same must be said of him who, when he can restore during the course of life, nevertheless defers until death; or who, being constituted in danger of death, would reject without sufficient reason the obligation of restoring upon his heirs. - Recall what was said n. 719.

II. As to debts from injury; all damages which followed from delay must be compensated, even when the delay was inculpable.² Cf. n. 797. Query.

But whether extraordinary damages also must be compensated, or those which do not necessarily follow from delay of restitution, is controverted. - It seems probably to be denied, because these damages could not have been foreseen, nor therefore can they be imputed. S. Alph. does not treat the question.

797. • III. As to debts from contract, generally one must stand by the conditions attached to the contract concerning time or concerning other circumstances, unless it is prudently presumed that the will of the other contracting party is otherwise.

Hence 1° restitution, or rather payment, must be made at the time concerning which agreement was expressly or tacitly made.

2° The debtor can anticipate, if the term assigned to payment is in his favor, as ordinarily happens; otherwise, however, if the same term turns to the utility of the creditor, as for example in furnishing money with profit to be perceived.

3° If the term has not been fixed, according to the opinion of many the debtor without sin at least grave can generally wait until he is warned by the creditor, unless nevertheless this man takes damage from it, or from fear does not dare to warn, or from forgetfulness or inability omits the warning, or the debtor obligated himself with an oath; for an oath of itself obliges as soon as possible.³

4° If the debtor has a just cause of deferring, he is not bound to compensate damage coming from delay.¹ - Thus commonly.

Query. Is he who delayed restitution from a just cause bound to compensate profit ceasing or damage emerging?

Resp. He is bound when the debt comes from delict; because although he did not sin by deferring restitution from a just cause, nevertheless from the preceding injury he is truly the unjust and culpable cause of that damage, and therefore that damage must be repaired by him. - Thus commonly, with S. Alph.² against others. - But if the debt comes from contract, he is not bound; because then the debtor is not the unjust and culpable cause of that damage, since he is by no means supposed to be in culpable delay, and so it does not appear by what title he is bound to this.³

329. The general principle is: Restitution is to be made in the place where the rights of the creditor are preserved, without graver inconvenience of the debtor. Whence:

1. A possessor of good faith must restore the thing in the place of possession, where it is at the moment at which he knows it to be another's; therefore it suffices that he make the owner more certain concerning the thing to be received by him, and he is not bound to undergo the expenses or perils of transmission: for an innocent person is not bound to suffer detriment from another's thing.

2. A possessor of bad faith or an unjust damager from delict must at his own expense restore the thing in the place where the owner would have possessed it, if it had not been taken away, yet deducting the expenses, if there are any, which the owner also himself would have made by carrying it away: for as damager he is bound to repair the whole damage which the owner has suffered.

If, however, the thing taken away could not be transmitted without great expenses, which greatly exceed the value of the thing, probably it would suffice to send the price, unless the thing were most dear to the owner.

330. What if a thing perishes by chance or by the fault of a third party before it has reached the owner?

R. The possessor of good faith is bound to nothing, because the thing perishes for the owner. But a possessor of bad faith or an unjust damager is not freed from the obligation, even if he follows the way prescribed in law, but again must take care that the owner be rendered indemnified; unless the owner has determined the mode of transmission, as if he himself or a judge has designated a messenger to whom the thing is to be entrusted: for then as soon as it has been handed over to the messenger it comes into the possession of the creditor, and if it perishes, it perishes for him.

331. On restitution by the help of a confessor. - Many moderns judge that he is immune from restitution who has handed over to a confessor money to be restored, in whose possession it perishes by chance or the fault of a third party. This indeed is not according to the rigor of principles, because a confessor per se is not a messenger designated by the creditor. Yet perhaps not improbably it can be judged thus, because the confessor, from the presumed consent of the creditor, can be held as a messenger, since often restitution cannot safely be made by another way without danger of infamy, and otherwise by office he is a messenger worthy of faith. Whence in practice, he who restores thus is not to be disquieted. Yet it will be better if the confessor asks condonation, which in the case he will obtain without so great difficulty.

S. Th. II-II, q. 62, a. 8 and q. 66, a. 3, ad 2.

332. Principle. - Restitution must be made at once, whether it is owed from a thing received or from unjust receiving, unless there is present a just cause of deferring or a delay is sought from him who can grant the use of the thing. The reason is that the owner has a right of possessing his own thing and of enjoying it; but he is unjustly deprived of the use of both rights if restitution is deferred without cause: for it is not licit to retain another's thing when the owner is reasonably unwilling.

"To detain," says St. Thomas, "that which is owed to another has the same nature of harm as unjust receiving; and therefore under unjust receiving unjust detention also is understood... As to receive another's thing is a mortal sin against justice, so also to detain it; because by the fact that someone detains another's thing against the owner's will, he impedes him from the use of the thing, and thus does injury to him. But it is manifest that not even for a little time is it licit to remain in sin; but everyone is bound immediately to leave sin... And therefore everyone is bound immediately to restore, if he can, or to seek delay from him who can grant the use of the thing," q. 66, a. 3, ad 2, and q. 62, a. 8.

It is said: at once, and indeed physically if there is question of the purpose of restoring, which someone must conceive in that instant in which he knows himself to be liable to restitution; but as soon as morally possible if there is question of the act of restoring, namely, at the first opportunity given, where it can be done without excessive inconvenience, yet in such a way that all damages following from culpable delay must be repaired.

333. Delay of restitution constitutes a sin grave from its genus. - Whence a) he is gravely guilty who without a just cause notably defers restitution: for then grave damage for the owner from the nature of the thing and per se is present; b) likewise he who, being able to restore the whole, wishes to restore only by parts; c) on the contrary he is lightly guilty if he defers briefly and does not inflict grave damage on the creditor.

He who defers restitution:

1. If culpably, is bound also to compensate the damages which the owner undergoes therefrom, and which could have been foreseen, namely, ordinary damages commonly occurring in these circumstances; but not extraordinary ones, unless the debtor who is in delay has been sufficiently warned or has foreseen them.

2. If restitution is deferred without fault (for example, because one does not have the means for restoring), damages arising therefrom per se are not to be repaired, at least as often as the burden of restitution does not arise from delict or bad faith.

3. But if it arises from delict, there is controversy: the common opinion with St. Alphonsus affirms it, because such damage truly arises from unjust receiving which is a formally unjust cause; nevertheless certain persons hold the excusing opinion as probable, because, although the first cause of the damage was unjust, nevertheless the delay now is just and consequently the one deferring is not the unjust cause of the subsequent damage. Yet this reason does not hold, because he is its cause, if not immediately, nevertheless mediately unjust.

334. How must one act with those who wish to defer restitution until death, and especially with the sick who are burdened with the onus of restitution? - Resp. Per se they sin gravely and are not to be absolved who, without sufficient reason, defer restitution until death, not only because of the delay of restitution, but also because of the danger lest the heirs omit restitution; or who, doubting whether the thing is another's, defer resolving the doubt until death.

Therefore the confessor ought prudently to exhort penitents that they themselves before death restore as far as they can. In these cases, however, let the confessor take care lest especially the sick be fruitlessly disturbed from good faith: for it can happen that they do not attend sufficiently to those damages or dangers, especially when restitution is to be made not to the injured owners themselves but to the poor or pious causes. Wherefore for the sick:

1. if they are in good faith and there is not time remaining for prudently warning them, or there is not probable hope of a good effect, then they are to be absolved without warning (for this would be an action useless for the innocent owner, and harmful for the dying);

2. if they are in bad faith, or if the fruit of warning is hoped, then they are to be warned and helped to restore immediately;

3. if restitution cannot be made immediately and the obligation is hidden, let them commit the money to the confessor, or rather to another faithful man. But if the money is not had, let care be taken that restitution be made through the heirs, or through a written note to be transmitted to the creditor.

Concerning the circumstance of time, these few things are to be noted:

I. As regards any debts whatever, generally restitution must be made as soon as it can be done without grave inconvenience. For natural right demands that you not retain another's thing when the owner is reasonably unwilling. Hence: 1st, he who culpably defers restitution remains always in sin and cannot be absolved. Besides, if damages come to the owner from the delay of restitution, he is held to compensate them. 2nd. If someone, having the purpose of restoring, defers for some time without grave inconvenience to the owner, he is not easily to be condemned for mortal sin, indeed not even for venial sin if there is some cause of deferring, for example, hope of a more convenient occasion, etc. 3rd. He who would wish to restore by parts, when he can easily restore the whole, would not be absolved, because the owner even in this is reasonably unwilling. The same must be said of him who, when through the course of life he can restore, nevertheless defers until death; or who, placed in danger of death, would cast the obligation of restoring upon his heirs without sufficient reason, unless perhaps it is a question of restitution of uncertain goods. - Cf. St. Alphonsus, Hom. Ap., nn. 104 and 105.

II. As regards debts from injury, all damages, at least ordinary, which have followed from delay, must be compensated, even when the delay was inculpable. - I said ordinary, because extraordinary things cannot be foreseen. - Cf. St. Alphonsus, Hom. Ap., ibid. - Vogler, n. 426.

Nevertheless it must be noted that there are those who hold as probable the opinion denying that a burden exists of compensating damages following from inculpable delay. They namely hold that a just delay purges the delay, and hence that the delaying debtor is not the unjust cause of these damages, nor can the creditor be judged reasonably unwilling. - Ballerini-Palmieri, vol. 3, n. 359.

III. As regards debts from contract, generally one must stand by the conditions placed upon the contract concerning time or concerning other circumstances, unless another will of the other contracting party is prudently presumed. Hence: 1st, restitution, or rather payment, must be made at the time concerning which it was expressly or tacitly agreed. 2nd. The debtor can anticipate, if the term assigned for payment is in his favor, as it is ordinarily accustomed to happen; but otherwise if the same term turns to the utility of the creditor, as, for example, in the furnishing of money with profit to be received.

Goods of twofold kind must be distinguished here. Some are certain, others uncertain. Certain are called those whose owner is certain and known, uncertain those whose owner is unknown or uncertain.

§ I

To whom are certain goods to be restored?

I say : Certain goods are ordinarily to be restored to him from whom they were received, whether he be their owner, or only legitimate possessor ⁴¹⁴ . ⁴¹⁴ Here q. 62, a. 5, co.

Proof of the first part⁴¹⁵ . Restitution is employed that equality may come about, which consists in the equalization of things. Yet this cannot be had unless restitution be made to him who through the taking away has less than he ought to have. Therefore. ⁴¹⁵ Ibid.

Proof of the second part; because while someone possesses a thing under legitimate title, although he is not its true owner, as the bailee for use, depositary, etc., he nevertheless has a right either of using it, or of guarding it, preserving it, etc.; which right is injured by taking away the thing, nor is it repaired except by restitution made to him, and not immediately to the owner.

I said, « ordinarily, » because there are several exceptions. First⁴¹⁶ . When a thing to be restored appears gravely harmful to him to whom restoration is to be made, it ought not then be restored to him, but either kept back, that it be restored at a suitable time, or handed elsewhere for safer keeping; because restitution is ordered to the utility of him to whom it is restored. I say the same if he reclaim it to another's damage : both because he has no right of reclaiming for this end; and because by the law of charity, according to which God commanded everyone concerning his neighbor, we are bound to impede evil, whether spiritual or bodily, of our neighbor when we can conveniently do so. ⁴¹⁶ Ibid., ad 1.

Second exception. When nothing concerns the interest of him from whom the thing was received that it be rendered immediately to the owner, it can be given to one or the other.

Third exception. When he from whom the thing was received is not capable of dominion or administration, as is a minor ward, a son of family with respect to adventitious goods, a wife with respect to common goods, a Religious, etc., the thing must be rendered to tutor, father, prelate, husband, etc. : otherwise in the external forum, according to L. Pupillus, ff de Actionibus, you will be held to pay again, unless you prove that the thing rendered was applied to the utility of the father, ward, family, monastery, etc. Nevertheless in the forum of conscience such proof does not seem required, but it seems sufficient for your release from second restitution if you prudently believe that those to whom you restore will discharge their office. From this exception except things conceded to Religious for use; for these can be restored to themselves, not to prelates.

§ II

To whom are uncertain goods to be restored?

Goods are said to be uncertain in a twofold way : 1° simply, when their owner is absolutely unknown; 2° secundum quid, when the owner is known secundum quid and in general, but who he is in particular is unknown, as if you know you owe something to one of several, but know not to whom.

I say 1° : All goods simply uncertain, whether gotten from delict or not, or found, are to be expended on pious uses if, diligent inquiry having been made, the owner does not appear ⁴¹⁷ ; for they cannot, as others wish, be said abandoned, since their owner certainly exists, though he be unknown; therefore they are to be expended according to his presumed will, that they be expended for his, or his kin's, or the state's utility, as we proved at greater length dissertation III, on Dominion, a. 1, § 4. ⁴¹⁷ Here a. 5, ad 3.

[In the same place was expounded and proved our opinion concerning goods of another possessed without delict. The locus of St. Thomas to which the reader is here referred must be restricted to goods unjustly acquired, seeing that the question is thus posed : « Whether restitution must always be made to him from whom something was taken? » namely by theft.]

I say 2° : Goods uncertain secundum quid are to be restored to their owner in the best way possible. This general dictum is plain of itself. And hence in particular,

If you know you owe something to one of two or more, but know not determinately to whom, and doubt persist after diligent inquiry, the thing is to be given to them in common, that either they divide it among themselves in kind or in price, or draw lots, or otherwise agree among themselves; these not agreeing, the matter be committed to the judge's arbitration.

If damage have been inflicted upon the community itself or the city, restoration must be made not to particulars but to the city itself or the community; because the community itself was harmed, not the individuals.

But if damage have been inflicted immediately upon individuals of some community or city, as happens in unjust war or plundering of towns, fields, in sales, namely when merchants, innkeepers, bakers and the like defraud indiscriminately buyers with adulterated wares, unjust measures or weights; and yet it is unknown in particular to whom damage was inflicted : restitution ought to be made not to the poor, but insofar as possible to the very persons harmed. If therefore you have plundered inhabitants of another district, restore the sum to be divided among them by the parish priest or an honest man, according to the proportion and probability of each one's loss. If you defrauded by selling, attend to who used to approach your shop more or less, and render to them more or less, namely by selling better wares, or at lower price, or with better weight or measure, or otherwise.

Finally, if you inflicted damage upon one or very few of some city, and to whom or to which ones remains absolutely unknown, but the city is known, restoration must be made to the poor of this city, because thus the owner's will is presumed, provided the thing be of some moment; for if it be of light moment, it can be restored to any poor man ⁴¹⁸ . ⁴¹⁸ S. Lig., Homo apost., X, 64.

[You will ask whether, when a creditor was compelled to make cession of his goods, restitution ought to be made to himself or to his creditors.

I answer. Generally speaking, restitution ought not be made to the creditor, but either to the commissioner constituted by the judge for collecting the goods remaining, before distribution, or, it is posited, because the thing or money to be restored belongs to the highest creditor, and his creditors have strict right that from the goods he possessed, or which accrue to him, they be made whole ⁴¹⁹ . — Except unless the creditors of the assignor, after cession, have absolutely condoned to him the part of the debt unpaid ⁴²⁰ . ⁴¹⁹ Cod. Gall., art. 1269. ⁴²⁰ Ibid., art. 1267.

Nevertheless sometimes it is licit to restore to the creditor himself, namely if he be honest and owe himself to hand over the thing or money to his creditors, if the debt be of small moment; likewise if he be in grave necessity and greatly need the thing owed him; for, as the theologians commonly teach, it is lawful for the assignor to withdraw those goods which are altogether necessary for living ⁴²¹ .] ⁴²¹ S. Lig., n. 699; Gousset, n. 772; Gury, n. 700.

Dico 1° : For debts arising from unjust acquisition, detention, or damage, restitution must be made at the expense of the debtor, in the place where the owner would have possessed the thing if it had not been taken away. This is the common opinion.

Proof., because the owner ought not to suffer loss through the fault of the debtor. Yet he would suffer it, if he had to recover his property at his own expense. Therefore.

It is confirmed. He who is bound to an end is bound to the means necessary and proportionate for attaining that end. Now the debtor is bound to such a restitution as keeps the owner indemnified; and this cannot come about without expense. Therefore he is bound to those expenses.

Understand this, however, of expenses that do not much exceed the value of the thing; and therefore I said, « proportionate means; » because otherwise the restitution would be judged more burdensome, and therefore morally impossible, as I shall say below. Make an exception when from the omission of restitution there follows for the owner some other damage greatly exceeding the expenses ⁴²⁸. ⁴²⁸ S. Lig., lib. IV, n. 697.

[Yet there must be deducted the expenses which the owner would have had to make to preserve the thing, or to bring it to the place where it must now be given back; because otherwise the owner would grow rich from another's property.

If, moreover, the restitution ought to be judged morally impossible on account of the extraordinary expenses necessary for sending the thing back, the bad-faith detainer cannot turn it to his own use, unless he is himself in grave necessity, since he may not grow rich from another's property; but from the presumed will of the owner he must distribute it to the poor, or spend it on other pious causes — unless he can sell the thing and send the price to the owner ⁴²⁹. ⁴²⁹ Id., ibid., n. 598.

How great, then, the expenses are that the unjust detainer is bound to make in order to restore the thing itself is not easily determined. Some bind him to expenses of any amount whatever; others only to those that equal the value of the thing; others to expenses twice as great as the debt. Since the general rule stands fixed, judgment must be made in each individual case, taking account both of the value of the thing and of the respective condition of debtor and creditor; and if the expenses appear evidently disproportionate, then either the restitution must be deferred until it can be made less burdensomely, or, if the thing is of great importance, it must be sold, so that the price may be sent to the owner, or, if its value is slight, the thing itself or its price must be spent on pious works.]

I say 2° : For debts arising from a thing received, restitution must be made in the place where the things are held; and if they must be transferred to the owner, this must be done at his expense; because no one without his own fault ought to suffer loss.

As regards debts from contract, it is certain that one must stand by the agreement expressly made in the contract, as to place and expenses; but if no agreement was expressly made, the tacit agreement must be gathered from the nature of the contract, the custom of the place, and other circumstances.

I say 3° : When the owner himself designated the messenger through whom he wished his property restored to him, he incurs the loss if the thing perishes by accident or through the fault of the messenger, under whatever title the thing is owed to him, and whether the same thing is to be given back or another; because in such a case the messenger bears the person of the owner, and what is handed over to him is reckoned as handed over to the owner. Similarly, if he left the debtor the freedom to choose whichever messenger he wished, provided he choose one who is regarded as trustworthy; because then the debtor has performed all that the owner required, and consequently all that the debtor himself owed.

I say 4° : If a thing owed solely by the title of a thing received perishes — even though sufficient diligence was used on the part of the debtor, that is, if he chose a messenger who is regarded as trustworthy, and sent it back by ways not regarded as dangerous — whether it perish by accident or through the fault of the messenger, it does not perish to the debtor, but to the owner, and consequently the debtor is exempted from further restitution; because this thing is the owner's, and a thing perishes to its owner, especially since no fault intervened on the part of the debtor. From this you will gather, conversely, that if the debtor is at fault, because he either chose a messenger who was not regarded as trustworthy, or sent the thing back by dangerous ways, it perishes to him, and he is held to further restitution.

I say 5° : A thing owed by reason of unjust acquisition, detention, or damage, however it may perish — outside the case of the third conclusion, whether the same thing is to be given back or not — perishes to the debtor himself, who in consequence is bound to further restitution. This is the more common and more probable opinion; because, if that thing were to perish by accident in the hands of the debtor, it would perish to him, as we said above according to the common opinion, since the unjust detainer is bound even for fortuitous chance, having taken upon himself every peril of the thing. Hence the common axiom does not avail here: « Res perit domino, » the thing perishes to the owner. Therefore it also perishes to the debtor himself, if it perish in the hands of a messenger whom he chose.

I say 6° : A thing owed from contract, if the same thing in number is to be given back, as in commodatum, hire, or deposit, perishes to the owner, provided sufficient diligence was used on the part of the debtor. If another thing in number is to be given back, as in a mutuum loan, in the price of goods, etc., it perishes to the debtor, even if he used sufficient diligence: because, in the first case, the thing is the owner's and remains under his dominion; in the second case, however, it is the debtor's. Moreover, as the thing cries out for its owner, so also it perishes to the owner. Hence, if you send back a horse given in commodatum together with money given in mutuum, and both perish on the way, the horse perishes to the owner, and the money to you.

XL. QUESTION XVI. In what place, and at whose expense, ought restitution to be made? ANSWER. A possessor of good faith ought to restore in the place where the thing subsists. If the lord be absent, he is to be admonished, and at his expense the thing ought to be carried to him. But if this possessor of good faith has transferred the thing elsewhere, then he ought to send the thing to the lord at his own expense. On the contrary, a possessor of bad faith is bound to restore the thing in that place where the thing would have been, had it not been taken away, and at his own inconvenience. Restitution owed from a contract ought to be made where the contract was celebrated, unless it be otherwise appointed by the contracting parties. A loan is to be restored at the borrower's expense, since it turns to his advantage. On the contrary, a deposit, since it turns to the depositor's advantage, is to be demanded back at his expense.

IT IS the common and certain opinion of all that he who unjustly detains a thing against the owner's will is under a continual actual obligation of restitution. So D. Bonavent. in speculo, cap. 8. in calce D. Thom. art. 8. Caietanus ibid, Sotus lib. 4. de Iust. quaest. 7. art. 4. Valentia quaest. 6. puncto 7. and the rest. But things acquired by contract do not oblige to restitution except at the appointed time, as the holy Doctor observes, whom all follow. See Tannerum disput. 4. quaest. 6. disp. 14. num. 44.

ALTHOUGH matters stand thus, nevertheless D. Bonavent. above, D. Thom. and others acknowledge certain causes which excuse from restitution, either always, or at least for a time, as long as they last.

Now these causes either hold on the side of the debtor, or on the side of the creditor, or on the side of the thing itself, or by reason of public authority.

On the side of the debtor, the first excusing cause is probable ignorance; yet not crass ignorance; whether it be of law or of fact, Caietanus verbo Restitutio, cap. 6. Nauar. in manuali, cap. 17. num. 82. Valentia loco cit. adduce it as excusing. But if it is crass or supine, it does not excuse. Such would be that of one buying a silver chalice from a soldier. See Fagundez Lib. 7. cap. 25.

THE second cause is doubt; for in doubt the condition of the possessor is the better, as the rule of Law has it.

THE third cause is poverty. So D. Bonavent., whom all follow.

THE fourth cause is necessity, when he indeed has wherewithal to restore, but he himself needs it, whether he labors under extreme necessity, in which nearly all concur; or even if it be a grave necessity, so that he may preserve the decent condition of his state honestly, as D. Antonin. part. 2. tit. 2. cap. 8. Nauar. in man. cap. 17. num. 63. Sotus Lib. 4. de Iust. quaest. 7. art. 4. Couar. relect. in regulam Peccatum, part. 1. art. 2. Valentia quaest. 6. puncto 7. Aragon quaest. 62. art. 8. and commonly others hold, as appears in Fagundez Lib. 7. cap. 27. and Tannerum disput. 4. quaest. 6. dub. 15. num. 429. Bassaeum V. Restitutio 5. num. 4. Bonac. disp. 5. quaest. ult. punct. 1.

THERE indeed arises a doubt: whether, if the Creditor also is in extreme need, the Debitor is bound to the extreme necessity of the Creditor rather than to his own.

SCOTUS 4. dist. 15. quaest. 2. Sylvest. V. Restit. quaest. 2. Azor tract. 3. lib. 4. cap. 39. and the cited Bassaeus say that he is bound to restore.

THE second opinion denies that he is bound. So it seems to D. Thom. 2. 2. quaest. 62. art. 5. ad 4. It is expressly defended by Valentia disp. 5. quaest. 6. puncto 7. Lessius Lib. 2. cap. 16. dub. 1. Malder. tract. 4. cap. 7. dub. 1., Sotus Lib. 4. quaest. 7. art. 1. Azor tract. 2. lib. 12. cap. 8. quaestio 6. Tolet. lib 5. cap. 24. Sayrus Lib. 10. tract. 5. cap 6. Fagundez Lib. 7. cap. 25. num. 14. Tanner. loco cit. adding: unless however the creditor has been reduced to extremity by his own withholding.

THE FOUNDATION is that in extreme necessity the Ius gentium ceases, by which the division of things was made, and the natural law is restored in its entirety, in which all things are common and come to be by way of the occupant's seizure, at least as to use, as the holy Doctor argues in Apol. paupert. cap. 1. quartae responsionis.

ON this foundation Malderus, Lessius, Sayrus, Fagundez above consequently infer that the debtor's parents also are to be preferred, if they lie in extreme necessity.

IT IS DOUBTED secondly: when creditor and debtor are both alike in grave necessity, is the latter bound to restore, falling from his station, so that, if he was a noble, he be compelled to become a craftsman?

SOME excuse him, and say he is not bound. So many hold, as appears in Fagundez Lib. 7. cap. 27. which opinion Malderus tract. 4. cap. 7. dub. 1. Tanner. num. 430. judges probable, together with Carbone quaest. 77.

YET commonly they say he is bound to restore: Azor tract. 3. Lib. 4. cap. 39. Petrus Nauar. Lib. 4. de restit. cap. 4. disp. 9. num. 53. Less. Tom. 1. de Iust. Lib. 2. cap. 26. dub. 1. Tolet. Lib. 5. cap. 24. Fagundez, Bassaeus loco cit.

THE REASON is that in grave necessity the Ius gentium remains in force.

THE fifth cause is grave loss in one's own goods, which the debtor would incur through restitution; as Caietanus loco cit. Ioan. Medina quaest. 3. de rebus restit. causa 4. Sotus Lib. 4. de Iust. quaest. 7. art. 4. Nauar. man. cap. 17. num. 56. Couar. loco cit. note; and the holy Doctor adduces this when he adds the condition: provided however the possibility of paying be present; for not only is he judged unable to pay who can in no way, but also he who cannot do so conveniently without, to be sure, grave loss, as appears ex Lege Nepos Proculo, ff. de verborum significatione, et cap. faciat, 22. quaest. 2. as Valentia notes loco cit. causa 5. Tanner. num 433.

HENCE one is not bound to restore at the peril of one's own good name. Wherefore they excuse the woman who does not reveal the bastard son she had from adultery. So admonish nearly all the Doctors, as appears in Valentia in the place lately cited. Which Fagundez in octavum Praeceptum decalogi, et in 7. Lib. 7. cap. 28. confirms with several arguments, especially from the declaration of Innocentius III. de poenitent. as Medina, Nauar. Couar. Valentia and others observe.

THE REASON is taken from D. Bonavent. locis allatis, quaest. 5. subquaest. 1. dub. 3. because the goods of a higher order are not to be restored for the goods of a lower order; but reputation is an order higher than riches: Therefore. The Major is certain; for restitution is arithmetic equality. The Minor is certain from Proverb. 22: A good name is better than great riches, and Ecclesiastici 41: Have care of a good name: for this will abide with you more than a thousand precious and great treasures, and Aristoteles 4. Eth. cap. 3. says: Honor is the greatest of external goods.

GREGORIUS de Valentia however, with Soto Lib. 1. de Iust. art. 3. ad 4. and Molina Tom. 4. disp. 702. hold that if the restitution be most grave and the loss of reputation be small, either because the woman was previously suspected or the like, the woman is bound to disclose herself, lest she squander an enormous inheritance from the legitimate heirs; for although (they say) reputation is by genus nobler than the goods of riches, yet it can be so small as to be inferior to them, in the way in which gold indeed is more precious than silver; nevertheless a tiny crumb of gold can be surpassed by a great mass of silver; Tannerus subscribes numero 434.

BUT Fagundez strongly protests num. 9. cap. 28. cum Petro Nauarro Lib. 2. de restit. cap. 2. part. 2. dub. 9. Corduba Lib. 1. quaest. 31. Vasquez opusc. de testam. cap. 5. disput. 10. Less. Lib. 2. cap. 10. dub. 7. num. 50. Malder. tract. 7. cap. 4. dub. 10. Turriano 2. 2. disp. 17. dub. 1. num. 10. et aliis.

NOR do the adversaries satisfy the argument of the Seraphic Doctor: For if they so diminish reputation as to reduce it to light matter, I do not refuse that one is bound to restore a great debt, even if it must be divulged, since one is not so prudent as to manage domestic affairs perfectly; But truly if we stand at the parity of grave reputation and money, the former is always of higher order, even if it be the reputation of a plebeian man; and in this case the similitude taken from the crumb of gold and the mass of silver is beside the point; For even in quantity, not to say in natural preciousness, gold is of greater worth; so too is grave reputation; as Fagundez num. 9. rightly noted with D. Bonavent. in speculo, cap. 1. where, citing that passage Proverb. 22. he admonishes that as light theft is venial, so is light detraction of reputation, which yields to the grave obligation of Restitution.

IT MUST ALSO BE EXPLAINED what sort of grave detriment in domestic fortune is sufficient to excuse from Restitution in the meantime; for the detriment considered as the expenditure of a large sum of money does not suffice, nor as the cessation of the profit due from that money; for this gain is not a detriment in one's own goods, but it is required that it be in the debtor's goods, either because he would fall from his station, or because he is compelled to sell his goods at a ruinous and pernicious price; for then the creditor is bound to wait, as Fagundez, Molina, Lessius, Valentia cited above note; and this is what D. Bonavent. cap. 2. speculi says, that one is bound to Restitution, provided however the possibility and opportunity be present. For such a time would be most gravely inopportune, and the creditor would exact unjustly at such a time.

THE sixth cause excusing from Restitution is the customary occupation of human life; for it is not necessary that one rise from bed at midnight, or rise from table at dinner, in order to pay, as Caietanus, Sotus, Valentia, and others commonly noted with D. Bonavent. cited above; but restitution can be deferred to a suitable time.

THE seventh cause is compensation made to the creditor in other temporal goods, either by conferring on him a burdensome temporal office, as Nauar. et Valentia say (I said temporal; for to give a spiritual one would be Simony), or by remitting to the creditor another equivalent debt, as Medina quaest. 3. et Valentia above, Tanner. num. 439. note.

THE eighth is compensation made by paying some legitimate creditor of his. So Medina, Valentia, and others.

THE ninth cause is the legitimate prescription of the thing, that is, such as it ought to be according to the canons, as Nauar. num. 85. et Valentia noted in the place cited.

TWIN rules for this matter are assigned by the Doctors.

The FIRST is: Restitution must be made there where the creditor recovers his goods without loss to himself, provided also the debtor does not straightway suffer loss without his own fault. In this all the Doctors agree unanimously, D. Thom. art 5. ad 3. Caietanus here, and V. Restitutio, cap. 5. Sotus Lib. 4. quaest. 7. art. 1. ad 3. Medina quaest. 2. de restit. dub. 3. Navar. cap 17. man. num. 42. Couar. in regul. Peccatum, part. 1. num. 9. Valentia disp. 5. quaest. 6. puncto 8.

SECOND rule: when the debtor cannot restore in such a place without unjust loss to himself or to the creditor, he may admonish the creditor, and in the meantime suspend, or even, according to the doctrine of D. Thom. here, art. 5. ad 3., deposit the thing in question in a safe place, so that it may be returned opportunely.

And the first rule follows: first, that he who is bound to restore by reason of the thing alone, and not by reason of an unjust acceptance or retention, satisfies well if he returns it in the place where he justly and in good faith received it, or where he promised he would pay, or in that place to which he went with simple intention, and he is not bound to pay elsewhere with expense. Second, that he who by unjust acceptance, retention, or delay made himself liable to restitution, is bound to restore, even with expense, where it is equally convenient for the Lord; For he unjustly afflicted the Lord with a like inconvenience. See Valentia.

I yet think this is not true, when by that mode of restoring the debtor would undergo a greater loss than the creditor has suffered. For a similar reason, if in transferring the thing you were compelled to spend far more than the thing is worth, you are not bound; but it can be given to the poor, says Ligis num. 9.