To Whom Restitution is to be Made

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

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

74. On Mutuum · 84. To Whom Restitution Must Be Made

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

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

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 2 passages

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

n. 1010.

I. Restitution per se must be made to the injured person, or to him who has succeeded to his rights, whether as owner, or as administrator or possessor (St. Alphonsus, III, 596). I have said per se, because sometimes, from the presumed will of the owner, it can be assigned to the poor; thus, for example, alms received under the fictitious title of poverty can be granted to the true poor. For the rest, you should especially conclude and note:

If a moral person has been injured, whether it is a universitas of things or a universitas of persons, restitution is to be made to it. But if a society pursues only a dishonest end, and therefore lacks the right of existing, possessing, etc., restitution per se and pro rata is to be made to the individual members. Since this can scarcely be done in practice, there will easily be reason to spend the sum to be restored, for example, on the poor or on a pious cause; all the more because the individual members, for the most part, do not suffer grave damage. I have said "only a dishonest end"; for otherwise the answer must be different, if the society also pursues a legitimate end.
What has been said, which it is especially useful to note, is also to be applied to an insurance society; and this holds even if that society has shareholders, or has reinsured its damages with another society. For it, as voluntarily injured by you, has a strict right to restitution; all the more because a contract has often also been added, which you would not call unjust.

Objection. In determining the price to be paid annually, the society also takes account of damages voluntarily to be inflicted, so that it has already provided for itself.

Response. That, considering both the latitude admitted in prices and the aleatory character annexed to the contract, does not prevent the price from being called just.

Damages unjustly inflicted on the republic can be restored to causes, for example Catholic schools, etc., which receive or have received subsidies less than just.

n. 1011.

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

If it is unknown to which one out of a few the thing belongs, let it be handed over to those few, who may divide it among themselves according to the proportion of the doubt. If something prevents it from being handed over in that way, let the possessor himself divide it among those few. The reason is that each one has a truly probable right in the thing (St. Alphonsus, III, 589).
If it is unknown to which one out of many the thing belongs, the possessor can retain it. For since, in the case supposed, no determinate person has a truly probable right in the thing, and since, as is supposed, there is no hope of acquiring further knowledge, that thing can be held as a thing belonging to no one, or at least be treated as such (n. 798). And this is so not only by a possessor in good faith, which all concede, but, as it seems, also by a possessor in bad faith; for no reason appears why he should seem to be excluded. Nevertheless it is praiseworthily advised that a possessor of this sort spend the thing so possessed on pious causes.

Objection 1. Let no one take advantage from a possession formally unjust.

Response. From a possession formally unjust as such, I concede; from the fact that, on the occasion of such a possession, the thing has now been placed in that condition in which it has become no one's, or in which it can be treated as no one's thing, I deny.

Objection 2. Canon Law¹ prescribes that things accepted through usury or simony be spent on pious causes; and this by custom has been extended to all things accepted from delict.

Response. The new Law is silent about that disposition; this being so, even the custom which extended the disposition of the law, granting that it truly had place, now no longer seems to be binding.

What the law is if the injured owner later appears, see n. 798.

If it is unknown precisely to whom, out of many, restitution is to be made, or if many of some commune have been defrauded, for example by a merchant, innkeeper, or baker who sold adulterated merchandise or diminished measures or weights, and it is not known precisely to whom damage was inflicted, restitution per se ought to be made to the ordinary buyers, not to the poor. And restitution can be made, for example, by selling better merchandise or by increasing measures or weights. But if the buyers are not judged to have been gravely injured, the seller is not held under grave sin to restore to the ordinary buyers, but satisfies the grave obligation by restoring to the poor of the place; and he is even excused from venial sin if there is a reasonable cause for restoring to the poor, for example because he cannot restore to the ordinary buyers without suspicion arising about past frauds, or because some poor are in great need, in which case it is licit to presume that the owners are not unwilling. But if the ordinary buyers are judged to have been gravely injured, restitution must be made to them under grave sin, unless again either a proportionate cause is present for restoring to the poor, or the owners, even in the case, are reasonably presumed not to be unwilling (St. Alphonsus, III, 589, 595, with 534, question 2).
If it is entirely unknown to whom the thing belongs, the possessor, even in bad faith, can retain it, as was said about the case in which it is unknown to whom out of many the thing belongs.

Corollary I. What was said under 1, 2, and 4 about the possessor is also to be applied to a mere damager. Therefore: 1° if it is unknown to which one out of a few damage was inflicted, restitution is to be made to each according to proportion; 2° if it is unknown to which one out of many, and likewise if it is entirely unknown to whom damage was caused, there is no obligation of restoring.

Corollary II. In the case in which restitution can or must be made to the poor, the debtor himself, if he is poor, can prefer himself (St. Alphonsus, Praxis confessarii, n. 24).

¹ Alexander III, cap. V, De usuris.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 23 passages

74. On Mutuum

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

Q. What as to the case?

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

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

84. To Whom Restitution Must Be Made

Audifacius, passing through a field, from an evil intention of harming others set fire to a crop. Converted to better fruit, he now does not know whose crop that was, nor can he learn it, since he was then altogether ignorant of the roads and places through which he was passing, nor afterward did he hear anything about that fire.

Q. What as to the Case?

R. Audifacius, as an unjust damager, is held to restore. The fact that by reason of the inability in which he is placed he cannot know the one damaged does not therefore excuse him from restitution; but restitution must be made to pious causes or to the poor. “It must be said,” says S. Th. 2.2. q. 62. a. 5, “that through restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things. But an equalizing of things of this sort could not be made unless, to him who has less than what is his own, that which is lacking were supplied. And for this supplying to be made, it is necessary that restitution be made to him from whom it was accepted.... But if he to whom restitution must be made is altogether unknown, a man must restore, according as he can, by giving in alms for his salvation, whether he is dead or alive, with diligent inquiry nevertheless first having been made concerning the person to whom restitution is to be made. But if he to whom restitution must be made is dead, it must be restored to his heir, who is counted as, in a certain way, one person with him. But if he is very distant, that which is owed to him must be transmitted to him, and especially if it is a thing of great value and can conveniently be transmitted; otherwise it must be deposited in some safe place, so that it may be preserved for him, and the owner notified.” Cf. I. M. 1420 seqq.; G. 588-590.

“In the ninth doubt Your Lordship implores a norm concerning the conduct to be observed with penitents who have stolen from the Turks, and cannot make restitution without danger of life, since the Turks always wish to know the name of the thief. Concerning this matter the Sacred Congregation has decreed that Your Lordship should adhere to the opinion of good authors, who teach that, when restitution of things stolen cannot be effected to their owner, not even through the confessors, and on the other hand the guilty person cannot retain the thing badly taken, the value of the things stolen must be distributed to pious causes, or among the poor.” S. C. de P. F. 26 Sept. 1840; Collectan. n. 2113.

“1. Concerning restitution of another’s goods made in alms, although the priest and the penitent do not ignore the true owner, the Pro-vicar asks whether the confessor can leave in good faith the penitent who believes he has restored, and whether the priest can make the said restitution with alms received from others instead of from the penitent.

In the mountains there are some temples of idols not inhabited by the priests, but attached to nearby monasteries. In so many temples the gentiles are accustomed to leave offerings of grain or money, which afterward the Bonzes of that monastery come to collect. Some Christians, with the sole end of taking those offerings for themselves, go there with an appearance of devotion to visit them. Are they guilty of theft? And being so, to whom are they obligated to restore?

R. To the 1st. Let him consult theologians, and especially Antoine, Theol. Moral.

De Iust. et Iure, ch. 3, part 2, q. 21, resp. 1, at the end, as regards the first part of the doubt. But as regards the second, he can, unless he who gave the alms prescribed the manner in which it was to be distributed.

To the 2nd. They are guilty of simulated superstition and of theft; and restitution must be made to the priests of the temple.” S. C. de P. F.; Collectan. n. 2110.

Moreover Antoine has these things in the cited place: “If before diligent inquiry you have spent uncertain goods or debts upon the poor, you are still held to restore to the owner when he appears.... Because you have done injury to the true owner, who has the right that his goods not be alienated when diligent inquiry has been omitted, and because it is your fault that you did not find the owner so that the goods might be returned to him, when they could be returned. If nevertheless the thing still exists with the poor person or the pious place, this one is held to restore; because he who gave could not transfer ownership, which therefore remains with the owner.”

Seius many times in his life practiced usuries. But dying, led by repentance, he left an estate to his son, so that from its sale he might restore the usuries unduly received. Their sum was 3,000 lire; but since by the will of Seius the sale of the estate could not take place except after the death of the mother, which happened after ten years, hence the son of Seius asks whether he must also restore interest. Moreover the creditors are forty or fifty, and perhaps more on account of their heirs, and it would be very difficult to find them; nor would this be done without danger of infamy for the whole family, which is held in great honor, nor without danger of scandal, since the persons to be employed in that matter would not preserve the secret, nor could they be trusted to hand the money to the creditors. But to defer restitution longer would be a grave damage to him, and very many years perhaps would pass before he could sell the house, while he himself inwardly would be pressed by continual straits of conscience. Hence the son of Seius also asks whether he can simply hand over the aforesaid estate to some pious cause.

R. The son as heir is in no way held to pay legal interest beyond the usuries themselves unduly received. For interest is owed only from a contract, which was not present, or from judicial petition, which also was not present. Nor truly is he held to pay that interest from the damage of the creditors themselves which followed, for it is not established concerning this damage as following in reality; since rather the contrary is presumed, because, perhaps to avert damage, they spontaneously chose to accept a loan with usuries also to be paid, and perhaps in order to perceive a greater profit from it. Nor finally would that interest have to be paid from delay of payment on the part of the son himself as heir, since it had previously been impossible for him to sell the house from which, once sold, he had to restore the undue usuries, or to dispose of it in any way. But as to making the restitution itself, he can well make it to pious causes, or to the Church or to another pious Institute. For the danger of infamy standing, which would follow for the whole family; the danger of scandal standing, which would be had if an investigation of the creditors were made; the danger also standing of losing the money to be restored, without its in fact coming to the hands of the creditors; and finally the grave damage to be undergone by deferring restitution standing, there is present a sufficient excuse from making restitution to the creditors themselves; whence, according to the common opinion of the doctors, it can be made to the poor or to pious causes in place of the creditors.

But so that the solution may be more certain as to both things, both as to interest not to be paid and as to the house to be assigned to a pious cause, Pontifical authority could most fittingly be invoked here, so that each may be confirmed by way of composition; namely by remitting to the son as heir the obligation of restitution of interest, if perhaps there is any, and by assigning to the Church or to another pious Institute the aforesaid house in compensation for the usuries unduly received.

In truth, the Doctors commonly acknowledge in the Supreme Pontiff a faculty of composition not only as to ecclesiastical goods, but also as to profane goods, when the creditors of the debt are uncertain; by force of this faculty one part of the debt is remitted and the other part is applied to some pious cause. The foundation and reason of this power is that, on account of the excellence of the pious cause, and on account of the fragility of men and the danger of restitution not being made, and for preventing the sins of subjects, it is judged equally or more good in order to the common spiritual utility than if the whole obligation of restitution were left to the debtors. Lugo, de Iust. et Iure d. 21. n. 92.

That is to say, this pertains to the Supreme Pontiff, either on account of high dominion as to ecclesiastical goods, which is in his possession; or, as to profane goods, insofar as he can indirectly govern temporal things, when this is necessary for the spiritual good. Lugo, l. c. n. 107.

Moreover, Composition is admitted not only when the creditors are uncertain, but also when because of their absence and distance the debtor is excused from restitution. For these two cases are altogether equated, because in each case the restitution which would have to be made would have to be made to the poor or to pious causes, in place of the owner to whom restitution cannot be made. And thus in each aforesaid Case composition can be made through the Bull of the Crusade, Lugo l. c. n. 139.

For Composition is admitted for any thing whatever badly had in whatever way, while those to whom restitution legitimately ought and can be made cannot be known. But in that case of absence and distance, although the creditor is known, restitution nevertheless ought not and cannot be made to him, and so the matter stands the same as with an uncertain owner, because the owner is truly not known, namely he to whom restitution ought and can be made. Lugo l. c. n. 139.

Now, just as the case of the absence and distance of the owner is equated, as to composition, with the case of an uncertain owner, so also the case of impossibility of restitution from the uncertain effect of it if it is made, and also from the scandal and infamy which would follow from it, is equated with the case of impossibility of restitution from the absence and distance of the owner, since also in this case of impossibility of restitution to be made from a delict, it must be made to the poor or to pious causes, whether by human law alone or also by natural law, as the doctors more truly hand down. Lugo, l. c. n. 91.

Hence it is plain that in the proposed Case there is present in the Supreme Pontiff the faculty of Composition, by sanctioning, for the greater tranquillity of conscience of that son as heir, that he restore to his Church or to a pious cause. For the owner is uncertain in altogether the same way as in other cases. Although he is known, nevertheless restitution ought not and cannot be made to him; which consequently, with composition intervening by the authority of the Supreme Pontiff, can well be made to a pious cause, and by it at the same time the son of Seius is fully freed from any other obligation which he perhaps has, whether as to interest, or even as to the very usuries badly received by his father.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 4 passages

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

n. 1420.

To whom must restitution be made? Restitution must be made to the certain and known owner whose right has been injured, whenever it can be done without grave difficulty and injury to another, and no other cause excusing from restitution is present. For through restitution all things return to their former state.

Hence he who has taken away a thing deposited with another, or leased or lent, must restore not to the owner but to the possessor himself. For the possessor cannot without injury be deprived of the right of custody, use, or possession, unless he himself consents. L. 596, 599.; H. A. 64.; St. Thomas, 2. 2, q. 62, a. 5.; C. I. 1241.; C. G. 1239.; C. A. 1424. Cf. 1343, 1351.; D'Annib., ed. 3, p. 2, n. 242. From C. I. 1243.; C. G. 1241.; C. H. 1163.; C. A. 1424., payment made to a creditor is not valid if he was incapable, unless it is proved that what was paid fell to his utility. On the contrary, from C. I. 1242.; C. G. 1240.; C. H. 1164., payment made in good faith to him who possesses the title of the credit is valid, even if afterward the possessor of the credit suffers eviction, for the possessor is held as the legitimate owner.

n. 1421.

To whom is restitution to be made when it is uncertain, whether unknown or doubtful, to whom the thing owed belongs? "When goods to be restored, or whatever debts, are uncertain, i.e., you do not know him to whom they are owed, or you cannot approach him, or restore to him; then if you have them without delict, as if you found them, or from a merchant, e.g., through error received two ells of cloth for one, and now he has departed, nor do you know where he has gone, you are held to employ some diligence in inquiring; after which, if there is no hope of knowing the owner, it is probable that you are not held to give them to the poor ... but can retain them for yourself," as if found.

L. 580. And this is valid both then when the owner of the thing does not know with whom his thing is found, and then when he himself knows with whom his thing is, as, e.g., if an unknown traveler left a thing in a public inn. For if he in no way claims it, and otherwise it is impossible to know him, the thing is understood as abandoned. But since it has not been lost, it will have to be restored if it is sought again. For the cause of possession cannot be changed.

Without delict; for a possessor in bad faith restores to the poor or to pious causes. For no one can become rich unjustly from another's thing. And if there is question of debt by reason of damage inflicted, restitution is also to be made to the poor or to pious causes. But if the owners are uncertain or doubtful, restitution is to be made to those to whom the thing more probably or probably is owed.

If the owner of the thing is uncertain or doubtful only among a few, e.g., three or four, "then restitution cannot be made to the poor, but the thing is to be divided among those among whom the defrauded person exists." But if the uncertain or doubtful owner is among many, e.g., among the inhabitants of a place, "then restitution must be made to the poor, as is had in C. Cum tu de Usuris.... Moreover it suffices that it be made to the poor of any place whatever. It also suffices that it be made to pious places, as they commonly teach.... But if many and various uncertain owners of some community have been affected by damage, then restitution is altogether to be made to the poor of the same injured community." L. 590, 595, 596.; St. Thomas, 2. 2, q. 62, a. 5 ad 3. "If, in the case in which you are held to restore a thing to the poor, you give it to yourself, truly needy, then indeed, even if afterward you are made richer, you are still not held to restore." L. 696.; Lugo d. 20, n. 8.; L. 580.

Whether, in the case of an unknown owner, restitution is to be made to the poor from natural law, from the presumed will of the owner, or from canon law, is a question among the doctors. From canon law. Namely, the restitution to be made to the poor of gain wrongly received from office, C. Cum sit 16. de Iudaeis etc., and from usuries, C. Cum tu 5. de Usur., is extended to all debts arising from delict. But this same disposition of canon law seems to be sought back from natural law, namely that, by that restitution made to the poor in place of the owner, society itself may be made harmless, and so provision may be made for its security; for theft both injures the peace and concord of private persons among themselves and injures the common good and commerce of society. Moreover, since the thing cannot be restored to its owner, nature itself and the presumed will of the same owner require that it yield to his spiritual utility.

"It is to be noted that concerning these uncertain debts a composition can well be made by the Bull of the Crusade.... This composition can also be made through the Sacred Penitentiary.... This composition is usually also conceded for ecclesiastical fruits wrongly received." L. 591, 593. Uncertain, namely, if the owner is unknown, and it is no longer probable that he will ever appear. Composition; to compound is for the Holy See to remit the debt in part, the other part having been expended for pious causes. In order that the composition be licit and ratified, a just cause is needed as regards uncertain debts; and when it has been duly made, even if the owner appears, no restitution any longer belongs to him. But in order that it be ratified as regards ecclesiastical fruits, when these are exacted from a canonical penalty, no just cause is needed, because it falls into a dispensation of the law. - Lugo d. 21.; E. M.

n. 1422.

Resolutions: If someone selling in some city has defrauded many in weight or price, restitution is to be made by increasing in the same way the weight or measure, or by diminishing the price toward ordinary buyers, who are presumed to have been damaged, if this can easily be done; otherwise restitution is to be made to the poor.

n. 1423.

Whether, when your creditor was forced to make cession of goods, you ought to restore to him or to his creditors? Generally speaking, you ought not to restore to your creditor, but your debt must be manifested by you to his creditors. The reason is that although the creditors of the one ceding do not have direct dominion over his goods, nevertheless they enjoy a strict right that they be preserved harmless from those goods. Yet sometimes you could restore to your creditor, e.g., if the debt is small, if he is upright, and you believe that he will restore to the creditors; likewise if he is in grave necessity, and greatly needs that debt in order to sustain life, because, as theologians commonly teach, one ceding his goods can withdraw those things which are altogether necessary for living. L. 699.; Gousset 772.; C. H. 1914.

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

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 10 passages

Vol. I, Treatise on Justice and Ri…, Third Part. On Restitution, Sect. I, Ch. III, Article II. To Whom Must Restitution Be Made?

- 1. Restitution must be made to the certain and known owner, whenever it can be done without grave difficulty and injury of another, nor is there another cause excusing from restitution. - St. Lig., Hom. apost., n. 64.

He who has taken away a thing deposited with another, or leased or lent, must restore not to the owner, but to the possessor himself. For the possessor cannot be deprived without injury of the right of custody, use, or possession, unless he himself consents. - Hom. apost., ibid.

But what must be done if the owner is doubtful or unknown, or if, although he is known, he cannot be approached? These things seem to be held:

If after diligent inquiry the owner is doubtful, either the doubt turns among few, or among many. If the former, restitution must be made to them pro rata, or the presumed owners must be induced to a settlement. If the latter, for example, because someone selling in some city defrauded many in weight or price, restitution is to be made by increasing in the same way the weight or measure, or by diminishing the price toward ordinary buyers, who are presumed to have been damaged, if it can easily be done; otherwise restitution must be made to the poor. - Hom. apost., ibid.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, CHAPTER IV: On Those to Whom Restitution Must Be Made · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. IV, ARTICLE I: To Whom Restitution Must Be Made · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. IV, ARTICLE II: To Whom Restitution Must Be Made First · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. IV, Art. II, § 1. ORDER OF CREDITORS FROM POSITIVE LAW · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. IV, Art. II, § 2. ORDER OF COMMON CREDITORS FROM NATURAL LAW

If the owner is plainly unknown, or if, although known, he morally cannot be approached either immediately or mediately, a distinction must be made; for either another's thing acquired in good faith is possessed, or in bad faith. If in good faith, then one must act as in recently lost things whose owner cannot be found (see above, n. 578), and therefore they must either be expended on pious causes, or also can be retained by the possessor. But if in bad faith, the possessor must wholly divest himself of such a thing, and spend it on pious works or works useful to the common good. For it is wicked that malice profit a thief or possessor of bad faith. - Hom. apost., n. 67, 69.

n. 700.

Questions. - Q. 1. Whether when your creditor was compelled to make a cession of goods, you ought to restore to him or to his creditors?

n. 700.

Resp. Generally speaking, you ought not to restore to your creditor, but your debt must be manifested by you to his creditors ¹. The reason is that although the creditors of one ceding his goods do not have direct dominion in his goods, nevertheless they enjoy a strict right that from those goods they be kept unharmed. Yet sometimes you could restore to your creditor; for example, if the debt is slight, if he is upright, and you believe that he will make restitution to the creditors; likewise if he is in grave necessity, and greatly needs that debt for sustaining life, because, as the theologians commonly teach, one ceding his goods can subtract those things which are wholly necessary for living. - St. Lig., n. 699. - Gousset, n. 772.

¹ It seems that one must inspect with whom, after the cession of goods has been made, the administration and custody of the same remains. For to him alone restitution or payment of debts can and ought to be made, so that if it is made to another, it is not valid, and it perishes for the one paying, if perchance the thing handed over does not come to the hands of the administrator. But that the creditors of him who has ceded his goods be warned will perhaps be able to pertain to charity, but not to justice. But the Author seems to speak of credits which are kept hidden by him who cedes his goods. And then indeed those debtors of his would cooperate in this fraud who, with the cession of goods known, would pay the debt to him himself; wherefore both in the forum of conscience they would not be safe, and in the external forum they could be sued to pay again.

n. 701.

- Q. 2. To whom ought a debtor FROM DELICT to restore, if the injured owner cannot be found?

n. 701.

Resp. According to the common sentence he must restore to the poor, or to pious causes. The reason is that from common sense the unknown owner is judged to be represented through the poor or pious causes; for such is presumed to be his will whenever he cannot recover his thing unjustly taken away or damaged. - Thus St. Thom. 2. 2, q. 62, art. 5, etc. Concerning this it is certainly established from Canon Law as regards usurious and simoniacal profit. The canonical law also seems by custom to be extended to the other cases: But custom is the best interpreter of laws. Therefore it appears that concerning this a certain law of nations has been introduced.

n. 701.

Some say that the debtor can spend those things on any public utility whatever, even profane. But in practice one must stand by the general custom. But never can the possessor of bad faith, nor an unjust damager can retain the debt by any pretext whatever, even of poverty ², because no one ought to carry back advantage from his own malice, as was already said above, n. 699. Whence he could be excused by reason of inability alone, and for a time. Nor would that debtor satisfy the obligation if he restored to some private person who is not poor.

² When the Author says by the pretext of poverty, he is to be understood of a feigned cause of poverty. For, as Cardinal De Lugo says (De Iust., disp. 20, n. 8), if the debtor, owing something to an uncertain creditor, and therefore owing it to be given to the poor, is himself truly poor, it can be applied to him. And that this holds also of debts from delict, theft, robbery, and the like, Lugo himself (ibid., n. 6) plainly indicates.

Tanquerey

Adolphe Tanquerey, S.S. — 5 passages

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

n. 552.

I. To Whom Restitution Must Be Made.

General principle. Restitution is to be made to him whose rights have been injured, and, when he has died, to his heirs or those having his cause. - But, in order to elucidate the matter more, a threefold hypothesis can be imagined, according as the injured person is certainly known, - or uncertain, - or altogether unknown.

If the injured person is certainly known, restitution must be made to him who legitimately possessed the thing, as often as this can be done without great inconvenience; for the thing cries out to the owner, that is, not to him who has only naked ownership, but to the legitimate possessor. Thus if a thing was taken away from a depositary or lessee, it must be restored to him, and not to the naked proprietor, because the injury was done to him. - Yet, if a grave reason is present, restitution can be made to another; e.g., a thing stolen from a child of the family can be returned to his parents, if it is feared that it will be dissipated by him.

n. 553.

Corollaries. (a) If the injured person has died, restitution must be made to the heirs or to those having his cause.¹ - If the owner was compelled to make a cession of goods, restitution must be made not to him, but to the administrator of the goods, unless the owner is in grave necessity and has the right of retaining what is required for decent support, as will be said below where Contracts are treated.

¹ Hence restitution cannot be made to the poor when legitimate heirs are present; nor is it licit to spend money to be restored on Masses for the deceased, unless the will of the deceased or of the heirs can reasonably be presumed, as is clear from the decree of the Sacred Penitentiary, February 7, 1899, in Ami du Clerge, t. XXI, 1899, p. 415.

(b) If a community or society has been injured, restitution must be made to the administrators of this community. - Yet if the society of which there is question pursues an altogether wicked end, as a Masonic sect, restitution is not to be made to the society itself, but to its individual members, or, if this cannot be done, to the poor. But if the society is not essentially evil, although at times it expends money for evil uses, - as is a heretical sect, - restitution must be made to it; for it can possess legitimately, nor is it deprived of its right because of certain abuses in which it indulges.²

² Holy Office, September 21, 1842: "Whether a Christian faithful who knowingly and willingly destroyed and ruined the walls, doors, and furnishings of a temple, and on that account is seized by heathens, ought or can repair the damage, at least by another title? - Resp. He is held to restitution, by title of justice" (in Bucceroni, Enchiridion, n. 672).

(c) He who culpably burned an insured house must restore to the insurance company that which it paid to the owner, and to the owner the part of the damage which the company did not repair. - But if it becomes morally impossible to know which company suffered damage, on account of the pact which they call reinsurance (reassurance), restitution must be made to the poor or to pious causes.

n. 554.

1. If it is doubted which person has been injured, first indeed inquiry must be made, and indeed with that diligence which is proportioned to the value of the thing; but, if the doubt remains, -

(A) If the doubt concerns few persons, - because, e.g., money found was lost by one of four or five persons, let the thing be divided among them in the better way in which this can be done.

(B) If it concerns many, let restitution be made to the injured persons, if this can morally be done, e.g., if merchants defrauded in the weight or quality of goods, let them increase the weight or furnish better quality when the injured buyers return; if this cannot be done, let restitution be made to the poor or to pious works, especially of that place where the injustice was committed; for in this case, the injured are judged to consent to this mode of restoring.

n. 555.

1. When the injured person remains altogether unknown, after diligent inquiry has been carried out, a distinction must be made: (A) If the thing was acquired in good faith, it can be retained by the possessor by prescription as a lost thing (above, n. 229).

(B) But if in bad faith, it must be restored to the poor or to pious causes. All theologians admit this, although they dispute concerning the foundation of this obligation: some derive it from natural law, but others from ecclesiastical law.¹ We think that it flows from natural law, and was explicitly declared by ecclesiastical law. For natural law commands that, on account of the public good, no one become unjustly richer from another's thing; but if the possessor in bad faith retained the thing unjustly possessed, he would become richer from another's thing, and thus his injustice would patronize him; and therefore the public good would suffer, since from this evildoers would become bolder. - Moreover ecclesiastical law determined this as regards usuries and a simoniacal price; and theologians commonly extend it to all debts arising from delict.

¹ For Alexander III (Decretal. Gregor. XI, lib. V, tit. 19 de Usuris, c. 5, p. 812, ed. Friedberg) decrees that usurers are to be compelled to restore usuries "to those from whom they extorted them, or to their heirs, or, if these do not survive, to distribute them to the poor"; the same is elsewhere declared concerning simoniacs, and, by analogy, is extended to all who in bad faith detain another's thing.

n. 556.

Hence, in the restitution of uncertain debts, Pontiffs have sometimes granted condonation or reduction, from a grave cause, insofar as they are administrators of pious causes.

If the debtor himself is poor, he will be able to keep part of another's thing which is necessary for relieving his own poverty: for the one possessing is not excluded from the number of those to whom restitution can be made; nevertheless one must beware of illusions which easily occur when someone is judge in his own cause. If the unknown owner afterward appears, the possessor of another's thing has the rights and duties of a possessor in good faith, if he employed the required diligence for finding the owner; and therefore if he restored to the poor, he is bound to nothing further; - if he was not diligent, he is held as a possessor in bad faith, and must compensate the damage inflicted upon the owner.

Koch–Preuss

Antony Koch; adapted and edited by Arthur Preuss — 7 passages

Vol. V, Pt. I, Ch. V, Sect. 10, A. Restitution in General, Article 3: The Circumstances of Restitution

n. ¶9.

Cui vel quibus? To whom should restitution be made?

n. ¶10.

a) Restitution should be made to the lawful owner of the stolen property, no matter whether he be an individual or a community, e. g., the State or a corporation. After the death of the person entitled to restitution his claim passes to his heirs or, if the stolen property has been left to some one as a legacy, to the legatee. Briefly, restitution must be made to him who is the certain and known owner of the property,⁴ and this holds even if the possessor has come into possession of the property at third or fourth hand. Thus if one has taken a stolen object from a thief, he must restore it, not to the thief, but to the legitimate owner. This duty binds even if the object is purchased and the purchaser runs the risk of losing the purchase price by giving the stolen article back to its owner. The reason is that the lawful owner retains the right in his property (“res clamat ad dominum”).

⁴ “Restituendum est domino certo et noto.” Cfr. Noldin, II, pp. 520 sqq.

n. ¶11.

b) If the owner is unknown (dominus incertus), careful inquiry (debita diligentia) must be made to find him. This inquiry must comply with the prescriptions of the positive law or else with custom. If the owner cannot be identified, the one who possesses the object in good faith may retain it, though under certain conditions it may be more advisable to give the property to the poor or to use it for charitable purposes.⁵

⁵ Numb. V, 7 sq.—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 5, ad 3.—Cfr. St. Alphonsus, Theologia Moralis, l. III, n. 580: “The question is asked: if the property, after due diligence has been employed to find the owner, has been handed over to the poor and afterwards the owner appears, whether it must be restored to him. . . . When, all the circumstances having been considered, it is no longer possible for the owner to be found, then the poor person acquires absolute ownership of the thing without any burden of restitution; but when, even after diligence, there still remains some hope of finding the owner of the thing, then the poor person does not acquire ownership of it and therefore ought to preserve it for the owner and restore it to him if he appears.” (Ed. Gaudé, II, 78).—Noldin, Summa Theol. Mor., Vol. II, pp. 522 sqq.

n. ¶12.

He who possesses a stolen object in bad faith, may not keep it, but should devote it to a pious cause or to the public welfare. If he is poor himself, he may keep a res incerta, which ought to be given to the poor, and thus release himself from the duty of restitution, even if this duty arose out of an unjust act. When doubt exists as to who is the rightful owner of a stolen object, this doubt may extend to a few (say, three or four) persons, or to many. In the former case the property must be restored pro rata to the presumptive owners, unless they agree to some other mode of restitution; in the latter case, e. g., where one has committed a number of petty thefts by using false weights or measures, restitution can be made to the poor or to some charitable institution, but not by temporarily giving better measure or by lowering the price of goods unless the patronage remains about the same, for in this supposition the injured parties could easily be remunerated by this simple device.

n. ¶13.

c) When restitution has to be made to fire insurance companies, the case is generally one of dominus incertus. Dr. Göpfert lays down the following rules for such cases:

n. ¶14.

If one has set fire to his own or somebody else’s property, he must make restitution of the insurance received, as follows: (1) If the money was received from a State insurance institution, supported from the public treasury, and the loss affects the whole community rather than the institution itself, restitution may be made to the poor or to some public institution; (2) if the money came from a private insurance company, restitution should be made to that company’s treasury. When it is certain, however, that the money will not go to the real owners (for instance, because it will be embezzled), it may be turned over to the poor or to some pious cause or charity unless the danger of embezzlement can be obviated by other means. As insurance companies often reinsure their risks, up to eighty or ninety per cent., with other companies, it may be uncertain who actually suffered the loss and to how much it amounts. Some hold that these companies really suffer no injury at all, since they fix their premiums according to all the risks incurred, including fraud as well as fire. Hence the real sufferers are the insured property-owners, but as these, on account of their large number, would receive only a very small sum each if restitution were made to them, a charitable cause may be substituted.⁶

⁶ Göpfert, Moraltheol., Vol. II, pp. 209 sq.; cfr. Noldin, II, pp. 530 sq.

n. ¶15.

d) In regard to debts arising from a written or an oral contract, e. g., deposits or loans, if the creditor and his heirs cannot be ascertained, there is no obligation to donate the money to the poor or ad pias causas, since it is justly regarded as ownerless property under the natural law.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 9 passages

Vol. II, Tr. XI, Sect. I, Q. III, Ch. IV, Art. III, § 1. To Whom Restitution Is To Be Made

n. 228.

228. General principle. Restitution is of itself to be made to him whose strict right was violated, and, when he has died, to his heirs.

This is clear from the notion of commutative justice, whose office is to render to each one what is his, or to restore the equality of thing to thing. In the practical application of this principle, attention must be paid to whether the injured owner is: a) certain and known; b) unknown; c) doubtful.

n. 229.

229. First rule. If the injured owner is certain and known, restitution is ordinarily to be made to him (or to his successor). For the thing cries out to its owner. There are, however, certain exceptions to this rule, or rather limitations introduced by positive law.

Exceptions. 1. If the thing was taken away from a just possessor and not from the proprietor himself, it is to be restored (at least commonly) to the possessor and not to the proprietor. E.g., Peter borrowed a book from Paul; if the book was stolen from Peter, it ought ordinarily to be restored to Peter and not to Paul, because otherwise Peter can suffer damage or inconvenience.

If a community or society was injured, restitution is commonly to be made to the administrators of that community. If, however, that community is wholly depraved, such as a Masonic sect or (at least in some regions) a Socialist sect, restitution is not to be made to the society itself or to its administrators, because this would be to give favor to a depraved end, but to the individual members of the society.⁷⁷ Since this is often impossible, however, it suffices if the sum to be restored is distributed to the poor. But when the society is not so evil, i.e., if its principal end is not depraved, e.g., certain heretical societies, then restitution is to be made to the society itself, which is not deprived of its right on account of incidental evil ends.

⁷⁷ Thus Christians who had stolen things offered to idols were ordered to make restitution to the pagan priests of the temple. S. C. de Prop. Fide, 10 February 1795, and S. Offic., 21 September 1842, ad 4.

n. 230.

230. 3. If damage was caused to the state or city, restitution is to be made to the state or city. This restitution can be made in diverse ways:

a) by paying the sum owed to those who have been unjustly injured in goods of fortune by the civil power and to whom restitution is consequently owed by the state. Hence, since in very many kingdoms the Catholic Church has been unjustly despoiled of her goods, it suffices to distribute the sum owed for the good of the Church. Nevertheless, in this case it is better to distribute the sum not to the Church in general, but to some determinate ecclesiastical institute which has truly suffered unjust damage from such a government and has not yet remitted it. The reason is that, according to the opinion now certain, the dominion of ecclesiastical goods does not belong directly to the whole Church or to the Supreme Pontiff, but to the individual juridical ecclesiastical institutes.

b) Restitution can also be made by destroying stamps by which the price for carrying letters and other things is paid,⁷⁸ provided, however, that those stamps belong to the government of the state. Or restitution can be made by destroying public-debt bonds,⁷⁹ but not by destroying notes of private banks.⁸⁰

c) Finally, restitution can be made by distributing the sum owed to the poor; for since the obligation of assisting the poor is incumbent upon the state, its burdens are diminished in this manner.

⁷⁸ Postage stamps (Briefmarken); stamps (timbres); stamps.

⁷⁹ Commonly, government bonds (Staatsobligationen).

⁸⁰ Commonly, banknotes of private banks (Banknoten von Privatbanken).

n. 231.

231. 4. A special and indeed great difficulty can arise if restitution is to be made to an insurance company. When the insurance belongs to the treasury, restitution is then to be made to the treasury, as is clear from what was said above; but when the insurance is private, as it most often is, then, speaking of itself, restitution is to be made to the administrators of that insurance. Sometimes, however, this is not to be counseled, because many insurance companies have an agreement of reinsurance with other companies,⁸¹ and then it is uncertain who truly suffered the damage. There is also not rarely a danger lest the restitution made be misappropriated by unfaithful administrators. Since, therefore, restitution to the legitimate owner is often morally impossible, many authors, e.g., Göpfert⁸² and Noldin,⁸³ deservedly teach that in these doubts the sum to be restored can be given to the poor or to pious causes.

⁸¹ Reinsurance (Rückversicherung, réassurance).

⁸² Moraltheol. II, n. 126.

⁸³ De praeceptis n. 512.

n. 232.

232. 5. If restitution is to be made to someone who was compelled to make a cession of goods,⁸⁴ positive law then gravely commands that restitution be made not to the owner, but to the administrator of the goods appointed by public authority; for the owner's creditors have the right to be kept indemnified from all his goods. Nevertheless, if restitution was made not to the administrator but to the owner, provided the latter is an upright man and is in great necessity, it seems to be valid. The reason is that the disposition of positive law cannot in this case invalidate the natural law, which commands restitution to the owner. - Even outside a legal cession of goods, it is sometimes lawful to restore to the creditors and not to the owner, namely, when the latter is not reasonably unwilling that restitution be made in this manner. In practice, however, restitution is ordinarily not to be made to the creditors unless this is permitted by civil law.

⁸⁴ Commonly, bankruptcy proceedings (Konkurs), bankruptcy (Bankrott, faillite).

n. 233.

233. 6. When the owner has died, restitution is to be made to his heirs; for all the real rights of the deceased pass to the heirs, who are reckoned as though one person with the deceased.⁸⁵ Upon the failure of heirs, the sum to be restored is given to the poor or to pious causes or to stipends for Masses to be said for the repose of the deceased. I say: upon the failure of heirs; for when there are legitimate heirs of the deceased, the sum to be restored cannot be distributed as stipends for Masses to be said for the deceased (unless, however, the heirs consent to this).

He who gave the thing to be restored to the poor or to pious causes, while the owner or his heirs were known and restitution could be made to them, did not satisfy his obligation, and therefore ought to restore again, because restitution ought altogether to be made to the legitimate owner or his heirs (Sacred Penitentiary, 7 February 1899).⁸⁶

This is so, at least if it is morally possible. But a moral impossibility of restoring to the legitimate owner is regarded as present if he who is obliged to restitution would, by restoring to the legitimate owner, have to undergo damage twice as great. Authors, however, by no means agree in measuring this impossibility. Here are the words of St. Alphonsus:⁸⁷

"If there is hope that the thing or its price may at another time be restored to the owner or his heirs without great damage to the debtor, then Bonacina, Lugo, and Lessius probably say that restitution can be deferred. But if such hope is lacking, so that the owner would be deprived of the thing, then Lessius and Dicastillus, cited by Croix (who does not disapprove it, with Lugo), still probably say that, if the thing is of small importance and the damage to the thief would be twice as great, restitution could then be applied to the poor or to pious works, because in this the owner is presumed to consent. But if the thing were of great importance, ... [several] excuse the thief from restoring immediately to the owner in the case in which the expenses to be made would be equal to the value of the thing. But Tamburini, Sporer, and Croix with Lugo, Vasquez, and Ilsung do not commonly admit this. - Scotus, Gabriel, and Richard, cited by Croix, excuse him, however, if the expenses were greater than the debt. This is also the opinion of the Gloss on the chapter Cum tu, De usuris, where it is said that the thief is not held to send the thing to the owner if the expenses of conveyance exceed the value of the thing itself. More probably, however, Sporer, Tamburini, and Molina excuse only in the case in which the expenses would be much greater; indeed, Lugo obliges the thief even if he would suffer damage twice as great. But when the damage would be altogether excessive, it suffices to restore to the poor."

In so great a labyrinth of opinions (all of which do not exceed the limits of probability), let each choose whichever he wishes. In our times, since at least the price of the thing taken away can be sent even to distant regions without great expenses, the case is not so practical. It can happen, however, that the owner has migrated to a distant region and his domicile cannot be learned without great labor and expenses. If in that case the debtor would have to spend a sum greater than the debt itself in order to find the domicile, he can with a safe conscience omit the investigation and distribute the whole debt to the poor.⁸⁸

⁸⁵ St. Thomas, S. theol. 2, 2, q. 62, a. 5, ad 3.

⁸⁶ Collect. de Prop. Fide n. 2038.

⁸⁷ Theol. mor. l. 3, n. 598.

⁸⁸ St. Thomas seems to favor this opinion, IV, dist. 15, q. 1, a. 5, q. 4, ad 5. Cf. also Billuart, De iust. et iure diss. 8, a. 16.

n. 234.

234. Second rule. If the injured owner is unknown, the possessor of the thing ought to make diligent inquiry; when this has been carried out without effect, a possessor in good faith can retain the thing, as was already said above in n. 213; but a possessor in bad faith or an unjust damager is held to give the thing to the poor or to pious causes.

That a possessor in good faith can retain the thing when the legitimate owner remains unknown is probably taught, after St. Alphonsus,⁸⁹ by nearly all modern authors: Noldin,⁹⁰ Tanquerey,⁹¹ Marc,⁹² and Göpfert.⁹³ The reason is that, since a finder can probably retain a thing found if the owner does not appear after diligent inquiry, a fortiori this is lawful for a possessor in good faith, since the latter began to possess the thing by a colored title. The older authors, on the contrary, do not admit this.⁹⁴ St. Thomas says:⁹⁵ "If he to whom restitution ought to be made is altogether unknown, a man ought to restore according as he can, namely, by giving alms for his welfare, whether he is dead or living, diligent inquiry concerning the person to whom restitution is to be made having first been undertaken." These words of the Angelic Doctor, however, are understood by some authors of a possessor in bad faith alone, or as a counsel and not a precept.⁹⁶

A possessor in bad faith or an unjust damager is held, when the owner remains unknown, to distribute the thing to the poor or to pious places. Thus theologians most commonly teach, although they do not agree concerning the foundation and reason of restitution, especially if there is question of restitution to be made by an unjust damager, some deriving this obligation from natural law, others from the law of nations, and others from ecclesiastical law.⁹⁷ We think it is derived from both laws: from natural law indeed, because it is repugnant both to the common good and to right reason that a wrongdoer (such as a possessor in bad faith or an unjust damager) should obtain utility from his malice and not be punished; and from ecclesiastical law, which compels the possessor to restore usurious and simoniacal goods.⁹⁸ For it must be noted that an unjust possessor or damager has injured not only a private person, but always also human society; and therefore, when he cannot satisfy the private person because the latter is unknown, he ought nevertheless to satisfy human society, either by the relief of the poor or by the assistance of pious causes.

If perhaps the possessor in bad faith or the unjust damager is himself poor, according to the probable opinion of many theologians he can retain the thing, or at least a part of it, for himself as alms, since he is not of a worse condition than other poor persons. Besides, in this case, when the debtor is so poor, he is in a moral impossibility of restoring and is therefore excused, provided he has the purpose of restoring when sufficient fortune is present.

⁸⁹ L. c. n. 589.

⁹⁰ De praeceptis n. 503.

⁹¹ Synopsis theol. mor. de iust. n. 555.

⁹² Instit. mor. I, n. 999.

⁹³ Moraltheol. II, n. 170.

⁹⁴ Cf. Billuart, l. c. a. 14, § 2.

⁹⁵ S. theol. 2, 2, q. 62, a. 5, ad 3.

⁹⁶ Cf. what was said above in n. 49 concerning the acquisition of a thing found.

⁹⁷ Cf. Vermeersch, Quaest. de iust. n. 167. Almost Aertnys alone (Theol. mor. l. 3, n. 346, q. 4) favors the opinion that from unjust damaging there does not arise in this case an obligation of restoring to the poor.

⁹⁸ Cf. c. 5, X 5, 19; c. 16, X 5, 6; Code of Canon Law, canons 729 and 1543. By customary law these laws are extended to all debts arising from a delict.

n. 235.

235. Third rule. If the owner is uncertain or doubtful, inquiry ought first to be made, and indeed with that diligence which is proportionate to the value of the thing. But if the doubt remains, a distinction must be made:

a) If the doubtful owner is among a few⁹⁹ (three or four), i.e., if it is doubted which of three or four persons is the true owner, the thing or its price ought to be divided among them in the best manner in which this can be done, nor is it lawful to give the thing to the poor.

b) If the doubtful owner is among many (and the same applies if a few true doubtful owners are among many),¹⁰⁰ restitution is then to be made to the poor.

c) If there are several doubtful owners and they dwell in the same place, then, according to St. Alphonsus,¹⁰¹ restitution ought altogether to be made to the poor of this injured community, because, since the community of that place was injured, the damage ought also to be repaired to it. In large cities, however, where citizens change their domiciles very easily, it does not seem necessary that restitution be made to the poor of the same city, but it can be made to any poor persons. Hence merchants who inflicted damage upon many buyers now unknown, by adulterating merchandise or diminishing weights and measures, can restore by increasing the weight and measure or diminishing the price of the merchandise, if the same buyers are still accustomed to return to the market; otherwise they are held to restore to the poor. Lehmkuhl deservedly says:¹⁰² "Wherefore I judge that without any scruple restitution can immediately be made to the poor or to public pious and useful ends of the very place where the frauds were committed; and that it can also be made to any poor persons or pious causes, at least without grave sin, or, if a reasonable cause is present, without any sin." The reasons are: a) the continual change of citizens in large cities; b) the sufficiently small probability of restoring in this manner to the true injured owners; c) the arduous difficulty of restoring gradually over an excessively long time a sum perhaps great, which can much more easily be distributed to the poor once or in a few installments.

⁹⁹ E.g., someone took away a purse which belonged to one of three persons, and he does not know to which one.

¹⁰⁰ E.g., a certain merchant sold adulterated merchandise to one or a few inhabitants of a certain city.

¹⁰¹ Theol. mor. l. 3, n. 589.

¹⁰² Cas. consc. I, n. 746.

n. 236.

236. The question is connected here: To whom ought restitution first to be made, or in what order ought the creditors to be satisfied?

If the debtor can satisfy all his creditors, no order need necessarily be observed in restoring.
But if all cannot be satisfied, then the positive law in force at the place of restitution concerning the cession of goods (commonly, Konkursordnung) is to be observed, at least if the cession of goods has already been juridically declared. Positive law ordinarily distinguishes among privileged,¹⁰³ mortgage, and common debts, and determines in what order and proportion each debt is to be paid. All these statutes seem to oblige in conscience. Thus the common opinion of modern theologians.¹⁰⁴ Hence, if someone pays the creditors in another order, with notable damage to the others, he sins gravely and is held to make restitution to the others injured. But before the cession of goods is juridically declared, although it is certainly foreseen, the individual creditors are to be satisfied in the following order:

a) Goods which have not yet passed into the ownership of the debtor are to be returned, e.g., things lent for use and things deposited.

b) Poor creditors are to be satisfied. Thus from charity.

c) Creditors prior in time or first making demand are to be satisfied. Nevertheless, when a just cause exists, debtors unable to satisfy all creditors are not to be disturbed if, after first returning those goods which have not yet passed into their ownership, they do not observe the order indicated here and satisfy one creditor rather than another. Indeed, for a just cause they can warn some creditor to seek payment of the debt.¹⁰⁵ Sometimes, however, positive laws declare invalid payments made a short time before the juridical cession of goods. These laws, being very reasonable and just, seem to oblige in conscience. Hence, if some creditor secretly receives a notable sum contrary to the statutes of those laws from a debtor unable to satisfy all his creditors, he is held to restore the thing received. You may see the diverse opinions of theologians on this question in St. Alphonsus.¹⁰⁶

¹⁰³ E.g., funeral and medical expenses for the last illness and the wages of servants.

¹⁰⁴ Cf. Göpfert, Moraltheol. II, n. 121; Lehmkuhl, Theol. mor. I, n. 1219; Noldin, De praeceptis n. 519.

¹⁰⁵ Thus also Noldin, l. c. n. 507.

¹⁰⁶ Theol. mor. l. 3, nn. 691-694.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 14 passages

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, CHAPTER IV: On Those to Whom Restitution Must Be Made

St. Alphonsus, III, 589; ed. G., II, p. 77; Lessius, l. 2, c. 4, d. 6 and 7; Lugo, disp. 21, n. 102; Lehmkuhl, I, n. 1214; Aertnys, tr. VII, n. 344; Tanquerey, II, 552.

n. ¶2.

We shall say: 1. to whom in general; - 2. to whom it must be restored first.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. IV, ARTICLE I: To Whom Restitution Must Be Made

The injured owner, to whom restitution is owed, is either certain and known, or doubtful among several, or entirely unknown; or finally he cannot be approached.

n. ¶997.

PRINCIPLES. I. If the owner is certain and known, restitution must be made to him, or to his successor. For the thing cries out for the owner.

Yet: 1. If the thing was accepted from the hands of a third just possessor, for example from a lessee, custodian, etc., it must be restored to this third party, and not to the owner, unless it is foreseen that he will probably abuse it, with injury to the owner (H. Ap., X, 64).

"Things accepted from a son under paternal power, a pupil, a madman, a wife, a religious, if they are from those goods whose administration does not belong to him, generally must be restored to the father, guardian, husband, prelate" (III, 596, 4). - But since different things are prescribed in different regions, one must ordinarily stand, in this matter, by the very words of the law.
If the creditor has been compelled to make a cession of his goods, restitution and payment of debts, generally, must be made to the administrator whom public authority has constituted.

Yet sometimes it is licit to restore even to the creditor himself, if namely he is in such necessity that he absolutely needs that debt for living; because, as is commonly taught, one ceding goods can certainly withdraw those things which are necessary for life for himself and his family (cf. n. 1023).

Restitution must be made to the community, if the community has suffered damage. Yet restitution of goods belonging to the republic can also be made to the poor. See what will be said in n. 1015, q. 3.

Restitution must be made to the injured community, even if this society, by reason of its end, were depraved, for example a non-Catholic sect. The case is excepted in which the society would not have the right of existing, for example Freemasons; for then restitution would have to be made to its members (Holy Office, Sept. 21, 1842). Concerning the mode of restoring to an insurance society, see ibid., q. 2.

From these things conclude: a) He who must restore to the heirs of the deceased cannot extinguish the debt by means of Masses paid for the favor of the deceased. Except if the consent of the heirs is truly presumed. Ami du Cl., 1913, p. 23.

b) If someone, with the owner being certain, should restore to the poor by counsel of a confessor, in the rigor of right he would not satisfy. Yet the holy Doctor (III, 704) does not dare to oblige him to restore again to the owner.

Things to be noted from civil law: 1. Payment made in good faith to him who possesses the title of the credit is valid, even if afterward the possessor of the credit suffers eviction.⁰¹ - 2. Payment made to a creditor who is incapable of receiving it, say a minor, one interdicted, etc., is null. Except, unless the debtor knows that the thing which he paid brought utility to the creditor.⁰²

n. ¶998.

II. If the injured owner is doubtful among several, according to the number of persons concerning whom there is doubt, it must either be divided among them, or restored to the poor, or to pious causes, or to citizens.

If the owner is doubtful among a few, three or four of some place, the thing or price must be divided among them, nor can it be given to the poor; because the owner ought not to be deprived of the hope which he has of recovering part of his thing. There can also be place for composition among all these.
If the owner, or the few owners who certainly have been defrauded, are doubtful among many, for example because they cannot be discerned among the inhabitants of a place, restitution is not necessarily to be made to the inhabitants of that place, but it suffices if it is made to any poor persons, or to pious causes.⁰³ The reason is that the thing very likely cannot arrive into the hands of its proper owner, or only in a very small portion (III, 589).
If many uncertain owners of some community have been damaged, restitution absolutely must be made to the citizens of this injured community, or at least to the poor.

a) It must be made to the citizens when this is morally possible, say if a merchant has defrauded many in weight or price, and can thereafter without infamy increase the weight or diminish the price toward ordinary buyers, who are presumed to have been defrauded. b) It must be made to the poor of the place, some reasonable cause acceding, say if someone cannot restore to the citizens without some notable inconvenience, or if the necessity of some who are very needy urges, to whom those citizens are presumed not to be unwilling that restitution be made (Praxis Conf., n. 41, 3).

n. ¶999.

III. If the owner is completely hidden or cannot be approached, another's thing can either be retained, or must be handed over wholly or in part to pious causes according to the diversity of circumstances.

If the thing was accepted in good faith, say if someone from inculpable error accepted more than was owed, it must be regarded as a thing found by chance. Wherefore, if the owner, moral diligence having been made, cannot be found, the thing can be retained, because it is regarded as abandoned (cf. St. Alph., III, 603). See the things said in n. 884 seqq.
If it was accepted in bad faith, or from delict, according to the common opinion it must be spent in alms or in other pious causes, for the salvation of the owner. For: a) such a thing cannot be retained, because no one ought to bring back advantage from his own malice; b) it must be spent on the poor or on pious causes, and not for another use, because such is presumed to be the will of the owner. Concerning this there is certainty from canon Law, as regards usurious and simoniacal gain; and general custom bears so, as regards other cases, which custom rests upon natural Law, as Lugo notes (disp. 21, n. 100). Cf. Lehmkuhl, I, 1216.⁰¹
If it was accepted in doubtful faith, then, while the doubt perseveres after due inquiry, it must partly be expended on pious causes, and can partly be retained (cf. nn. 945 and 946, 3). See the holy Doctor, III, 588; H. Ap., X, 64-70.

Things to be noted. a) If, the due diligence for finding the owner having been passed over, the thing has been spent on the poor, the damage must be repaired to the owner afterward appearing. Otherwise if, all circumstances being considered, it is prudently judged that it can no longer happen that the owner is found; because, in this case, the poor person acquires absolute ownership of the thing, without any burden of restitution (III, 589, 590).

b) If none of the owners, whether known or doubtful, was gravely injured, restitution must be made to them only under light sin, as is clear; but to the poor or to pious causes, under grave sin, because the whole damage inflicted on the community is grave, as is supposed (III, 534, q. 2).

c) If the thief himself or damager is poor, he can, from prudent estimation, apply to himself or to his family the restitution owed to the poor (Praxis Conf., n. 44, 3).

It is asked. To whom must a simple damager restore, if the owner who suffered the damage is unknown, or cannot be approached?

Resp. By fiction of right, a damager by that very fact becomes richer, because he retains something which because of the damaging he ought to pay. Therefore it seems that the same principles must be applied to him as to a thief who detains the thing of another. Hence, in the case, the damager must restore to the poor. Thus probably Lugo (disp. 21, n. 100) and others. Yet probable also is the opinion of those who say that in the case restitution must be made to no one: for the damager does not retain another's thing; besides, the obligation of restoring to pious causes is not altogether certainly imposed by natural law. See Aertnys, l. III, n. 346, q. 4.

N. B. Concerning composition with the Holy See over uncertain debts, see n. 1029.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. IV, ARTICLE II: To Whom Restitution Must Be Made First

n. ¶1000.

If a debtor can satisfy all his creditors, no order necessarily must be observed in restoring. Otherwise, the order of creditors must be observed (III, 684). Cf. Lessius, l. 2, c. 15; Lugo, disp. 20, s. 1-7.

This order demands two things for itself: 1. one, that satisfaction be made wholly to the prior class of creditors, no account being had of the later class; 2. the other, that, if goods do not suffice for satisfying the creditors of the same class wholly, satisfaction be made to each of them for the pro rata part.

The aforesaid order is prescribed either by natural law or by positive law. But before all, the order which positive law prescribes must be observed, insofar as it is a determination of natural law itself; and it must be noted that the order established by positive law obliges in conscience whenever it is not repugnant to natural Right (III, 689, 6).

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. IV, Art. II, § 1. ORDER OF CREDITORS FROM POSITIVE LAW

n. ¶1001.

The order of creditors varies according to the various kingdoms.

Before all, another's thing existing in the individual with the debtor must be returned to the owner. Cf. n. 995, 1.

As regards creditors, from modern Law the first place is obtained by privileged creditors, according to the order established by law; in the second place come the other hypothecary creditors; finally, in the third place, chirographary or common creditors, who enjoy no prerogative of right (cf. H. Ap., X, 109).

n. ¶1002.

I. Privileged creditors. By privilege here is understood the right which the quality of the credit so grants to a creditor, that this creditor is placed before the other creditors, even hypothecary ones. Privileges of this sort can be over movables, or over immovables, or over each at the same time, according as the creditor has precedence so that payment may first be made to him from the debtor's movable goods only, or from immovable goods, or at the same time from each. - Besides, privileges are general or special, according as they extend to all movables or immovables, or only to certain special ones.

Among privileged credits generally come judicial expenses, funeral expenses, medical expenses for the last illness, stipends of servants, debts for maintenance, wages of architects and workers for constructed buildings, etc. Let the particular law of each place be seen.⁰²

Note. The order among the privileged themselves is established not from priority of time, but from the quality of each credit, to which the law itself assigns its own place or degree of precedence.

n. ¶1003.

II. Hypothecary creditors. A hypothec is a real right which a creditor has in some immovable good, so that from it he can obtain payment if the debtor does not otherwise pay. A hypothec is either legal, or judicial, or conventional, according as it is constituted by law, by judgment, or by pact. But in Germany, only the conventional one has force.⁰³

A legal hypothec is held: 1. by a wife in the goods of the husband, for recovering the dowry; 2. by a minor or one interdicted in the goods of his guardian; 3. by the government, municipalities, and public institutes in the goods of their administrators, who are subject to rendering an account.

A judicial hypothec, from the decree of a judge, is established in favor of those who have obtained the case; if, for example, a judge condemns someone to repair certain damage, then by force of that sentence all the immovable goods of the condemned person are burdened by hypothec for repairing the damage.

A conventional hypothec is a solemn contract by which, the determined formalities being observed, a person habilitated for contracting obligates specially designated goods to the creditor, in assurance and payment of a determined debt. The goods of minors, interdicted persons, and absentees cannot be burdened by hypothec without the consent of the Council of the family or the sentence of a judge (cf. n. 1174).

From the new laws: 1. Hypothecary privilege has no force except from the day of inscription before the conservator of hypothecs. 2. No order is observed among those who are inscribed on the same day or under the same number; but each has a right for the pro rata part of the debt. But for others, who are inscribed on different days or numbers, the rule has force: "He who is prior in time is stronger in right."⁰⁴

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. III, OR ON RESTITUTION, Ch. IV, Art. II, § 2. ORDER OF COMMON CREDITORS FROM NATURAL LAW

From the law of nature few things are certain, and therefore several are controverted.

n. ¶1004.

PRINCIPLES. I. Another's thing, existing with the debtor, must be returned to the owner, nor can it be given in payment to others. The reason is that the thing cries out for the owner, and debts must be paid from one's own things, not from another's. Therefore the owner of the thing must always be preferred, unless positive law intervenes, as we said in n. 936. Cf. Lugo, disp. 20, S. 2.

II. Debts from an onerous title, whether they have arisen from contract or from delict, must be paid before those which rest only on a gratuitous title. The reason is that in a gratuitous pact the condition is always understood: that it can be done without damage to a third party; or: unless the state of things is notably changed. For the axiom urges: "No one is liberal unless liberated."

Hence the debts of the deceased must be paid before all vows and legacies, even pious ones (III, 684-689).

n. ¶1005.

Less certain, yet probable, are the following:

Certain creditors are probably to be placed before uncertain or unknown creditors. The reason is that uncertain or unknown creditors are presumed to consent to this: both so that the debtor may be freed from certain creditors pressing him, and so that they themselves may preserve their right intact, in the case in which afterward, circumstances having changed, they may be able to recover it. Thus commonly.

But the opposite opinion also is probable, which says that then the poor are equal in their right with certain creditors: "For such is presumed to be the will of creditors, that what cannot be restored to them be restored to the poor for their souls" (III, 687).

Poor creditors can probably be preferred to the rich. The reason of St. Thomas (Opusc. 73, c. 18, v. fin.) is that the poor person suffers greater damage.

But others more probably say that restitution must be made pro rata to both the rich and the poor, because commutative justice attends only to right, not to persons.

Except the case in which other creditors would be held, from the precise obligation of alms, to assist such a poor creditor (III, 691; H. Ap., X, 113).

Creditors prior in time can be placed before later ones, according to the more probable and more common opinion. For Rule 45 in the Sext, "He who is prior in time is stronger in right," although it is assigned by civil law only for hypothecary creditors, is nevertheless assigned by canon Law for all, and is founded in the law of nature itself.

But the denying opinion also is probable, because goods are not obligated to chirographary or common creditors, but the person of the debtor himself; and this equally for all, without priority (H. Ap., X, 112).

If one of the creditors first seeks payment in court, the whole debt can be paid to him, even if he is later in time than the others; because the sentence of the judge confers privilege upon him. And the same must more probably be said if he seeks outside court; because laws favor the watchful and confer on them a species of privilege (III, 692; H. Ap., X, 114).

Except if the cession of goods has already been publicly declared; because then the debtor already exists stripped of the administration of his goods, and juridic cession confers on all common creditors a right to the rate of each one's part (cf. n. 1021).

n. ¶1006.

From these things you will gather: a) The debtor can wholly satisfy a creditor having a probable right of precedence, but he is not held. But the creditor, when payment of this kind has been made, can retain it. Thus, namely, from the principles of equiprobabilism (cf. n. 74).

b) A debtor unequal to paying all cannot wholly satisfy a creditor having neither a certain nor a probable right of precedence, but only pro rata, just like the other creditors of equal degree. Wherefore, according to the truer opinion, if the creditor has accepted full payment offered to him voluntarily, he cannot retain it, but from it he must restore to the other creditors their due part. "Nor does it profit the creditor that he accepted in good faith; for although by accepting he did not do injury to the other creditors, nevertheless by retaining with their damage he does so, since they had at least an equal right to the goods of the debtor" (III, 693).

Nevertheless, if a creditor who in good faith accepted full payment cannot easily be brought to believe that he is held to restitution, especially when he is not constrained to it by positive Law, restitution does not seem to be urged. - Besides, because we are dealing in a matter of strict right, the unjust acceptance must be altogether established. There are not lacking authors who with Lugo say that the creditor concerning whom there is speech is not held to restitution. Cf. Lehmkuhl, I, n. 1221.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 3 passages

Vol. I, TREATISE ON RIGHT AND JUST…, THIRD PART: ON RESTITUTION, Ch. III, ARTICLE II: TO WHOM IS RESTITUTION TO BE MADE?

n. ¶782.

- Restitution must be made to him whose right has been injured. Wherefore:

1° To the one suffering damage (who is also called the creditor), if it is owed on account of damage given.

2° If it is owed on account of unjust detention of another's thing: a. To the owner himself, if the thing was taken from the owner. b. Not to the owner, but to the just possessor (for example the borrower for use), if the thing was stolen from him; for this man's right of possession was injured. Resolve the same if there is doubt whether he possesses justly, because in doubt presumption favors the possessor. But to the owner, not to the possessor, if the latter is probably going to abuse the thing with injury to the owner.¹

3° When the owner, or, as above, the possessor, is dead, the thing must be restored to the heirs, who either ab intestato or by testament have succeeded into the rights of the deceased; nor can it be expended for the repose of the soul of the deceased, unless from the express or at least presumed will of the heirs, not however of the deceased, since now they, not he, have dominion or possession of the thing.²

4° If after diligent inquiry the owner is doubtful, either the doubt turns among a few, or among many. If the former, restitution must be made to them according to proportion, or the presumed owners must be induced to a composition. If the latter, for example because someone selling in some city defrauded many in weight or price, restitution must be made, and indeed under grave sin, either to those defrauded or to the poor of that place, or for pious causes useful to that same place; but under light sin only to those defrauded (and to these not even under light sin, if a reasonable cause is present), suppose by increasing in the same way the weight or measure, or by diminishing the price toward ordinary buyers, who are presumed to have been damaged, if it can easily be done.

5° If the owner is plainly unknown, or if, although known, he nevertheless can be approached neither immediately nor mediately in a moral manner, a distinction must be made: for either another's thing, acquired in good faith, is possessed, or in bad or doubtful faith. If in good faith, then one must act as in things recently lost, whose owner cannot be found (see above n. 656). But if in bad faith, the possessor must wholly despoil himself of such a thing and spend it for a pious work or the utility of the poor. For it is unlawful that malice profit a thief or a possessor of bad faith.¹ If finally in doubtful faith, the doubt persevering after due inquiry, the thing must be spent partly for the poor or pious causes, and partly can be retained. Cf. n. 739.

6° If no one of the owners has been gravely injured and they are known, restitution must be made under grave sin to the poor or to pious causes; under light sin to the owners, and not even to these under light sin if a reasonable cause excuses. I said: 1° under grave sin to the poor or to pious causes. The reason is that by becoming notably rich from another's thing, he has inflicted grave damage upon the republic. I said: 2° under light sin to the owners; for to each of those he has inflicted only light damage.²

Note for practice. - To those obligated to restitutions to the poor or to pious causes, it is prudently declared that they satisfy if they give those things which they are accustomed to contribute toward the support of the poor, churches, etc., which is not owed, with that intention that they satisfy the obligation of restoring. Except if the sum to be restored is so great that usual contributions of this kind do not equal it.

n. ¶783.

Questions. - Query 1° When your creditor has been compelled to make a cession of goods, must you restore to him or to his creditors?

Resp. Generally speaking, to him in whose hands, after the cession of goods has been made, the administration and custody of those goods remains. For to this one alone restitution or payment of debts can and ought to be made, so that, if it is made to another, it is not valid and perishes for the one paying, if perhaps the thing handed over does not come into the hands of the administrator. Wherefore if it were a question of debts which are kept hidden by him who cedes his goods, the debtors of that man would cooperate in his fraud if, the cession of goods being known, they paid the debt to him; for which reason they would not be safe even in the forum of conscience, and could be sued in the external forum to pay again. Yet sometimes you could restore to your creditor, for example if the debt is small, if he is upright, and you believe that he is going to restore it to the creditors; likewise if he is situated in grave necessity and greatly needs that debt to live, because, as theologians commonly teach, one ceding goods can subtract those things which are altogether necessary for living. - S. Alph.,³ Gousset.²

n. ¶784.

- Query 2° To whom ought a debtor FROM DELICT restore if the injured owner cannot be found?

Resp. According to the common opinion, he must restore to the poor or to pious causes. The reason is that by common sense the unknown owner is judged to be represented by the poor or by pious causes; for such is presumed to be his will whenever he cannot recover his thing unjustly taken away or damaged. - Thus S. Thom.³ Concerning this there is certainty from Canon Law as to usurious and simoniacal profit. The canon law seems also to be extended by custom to the other cases: but custom is the best interpreter of laws. Therefore it appears that some law of nations has been introduced concerning this.

Some say that the debtor can spend these things for any public utility, even profane. But in practice one must stand by the general custom. But never can the possessor of bad faith, nor the unjust damager, retain the debt (unless, as is clear from S. Alph.⁴, he himself is truly poor), because from right, whether natural or positive, at least customary, restitution must be made to pious causes. L. V. 71. H. A. Tr. X. 17.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 21 passages

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, Third Part: Concerning Com…, Section A: Concerning the …, Question Three: On the Cir…, Article I: On Him to Whom Restitution Must Be Made

S. Th. II-II, q. 62, a. 5.

n. 320.

320. General principle. - Restitution per se is to be made to him whose strict right was injured, and, he being deceased or having disappeared, to his heirs or to those having charge. For by restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things; but this cannot be had unless what is lacking is supplied to him who has less than his own. For this it is necessary that restitution be made to him from whom it was received (q. 62, a. 5).

n. 320.

Whence if restitution has been made to another than the injured person, the obligation of restoring remains, unless the thing was without fault in the possession of the one restoring and has passed over.

321. If the injured person is certainly known, generally restitution is to be made to him himself, namely, to him who was legitimately possessing the thing and who here and now has the right of possessing it: thus as often as it can be done without great inconvenience. For the thing cries out for its owner; that is, not for him who has the bare dominion of property, but for him who here and now legitimately exercises dominion, or for the legitimate possessor (a. 1239). Whence if a thing has been taken away from a depositary, lessee, or curator, it is to be restored to him to whom injury has been done, but not to the proprietor. Yet there are exceptions:

If a grave reason is present, restitution can be made to another: thus a thing can be returned to the owner, whenever he could recover it from the possessor only with difficulty or trouble, or if the possessor himself wished to use it for harming; and if it has been stolen from a son of a family, it can be returned to the parents lest it be squandered by the son.

If the thing has been received from a son of a family, a pupil, a madman, a religious, from those goods whose administration does not belong to them, it will for the most part have to be restored to the father, tutor, curator, prelate, etc. (a. 1241).

If the injured person has died, restitution is to be made to the heirs or those having charge; nor can the goods be distributed to the poor or for Masses for the deceased,¹ unless the heirs consent or there are none at all.

¹ S. Poenit., 7 Feb. 1899.

If the owner has made a cession of all goods to creditors, restitution must be made not to him himself but to the administrator of the goods, as civil law also prescribes; unless for those goods which are necessary to the owner for sustenance if he is in grave necessity.

If a community or society has been injured, restitution is to be made to its administrators, not to individual members, even if the society pursues some accidental evil ends or expends goods for evil uses, because the society as such has suffered the damage. Unless, however, it is essentially evil and pursues only an entirely wicked end, as a Masonic sect or idolatrous community: then restitution will have to be made not to the society itself, which cannot have the right of possessing, but to the individual members,² or, if this cannot be done, to the poor.

² S. C. de P. F., 10 Feb. 1795 and S. Off., 21 Sept. 1842, ad 4.

If damage has been inflicted on an insurance society, restitution will have to be made to it, whether it belongs to the treasury, or is a private society, even if because of a pact of reinsurance for greater damages it is impossible to know what society in fact suffered the damage. In this last case several theologians say that restitution is to be made to the poor or to pious causes. But, as Vermeersch notes,³ this is not the practice of the Sacred Penitentiary. Whence Genicot:⁴ "Practically it seems to suffice that restitution be made to the administrators, when the injured person cannot be better detected, and if this is regularly done, a certain compensation exists among the various societies." Nevertheless, he does not seem to be disquieted who in good faith has already restored to the poor.

³ Th. M. II, n. 494.

⁴ Th. M. I, n. 658, VII. It is better nevertheless to warn several of the administrators or even associates, lest the restitution made be defrauded by an unfaithful administrator.

322. If the injured person is doubtfully known or uncertain, first of all inquiry must be made with diligence proportioned to the value of the thing. But if the doubt remains:

If it is among a few, the thing or its price is to be divided among them in the better way by which it can be done, nor can it be given to the poor: thus, for example, money found, lost or taken away from one of four or five persons.

If it is among many persons distant from one another or easily changing domicile, as easily happens in great cities, so that there is no probability that it can be restored to the true owners, restitution is to be made to any pious causes.

If it is among several of the same place, restitution is to be made to them, if it can be morally done; but otherwise to the poor or to pious works of that place where the injustice was committed. Thus merchants defrauding in weight, measure, or quality of wares must restore by increasing the weight and measure, or by bettering the wares or diminishing the price if the same buyers are accustomed to return; otherwise they should restore to the poor of the same place, according to the presumed consent of the owners.

Nevertheless, although profit has come from fraud, provided that no buyer must be supposed gravely injured, he would sin only lightly who repaid the whole to the poor, especially of the same place; indeed the one restoring is excused even from light sin if he acts thus from a reasonable cause, for example, if without notable danger or damage to himself he cannot render to the clients, or if there are very needy poor to whose relief the injured owners are judged more easily to consent.

323. If the injured person is entirely unknown, even after diligent inquiry has been carried out:

If the thing has been received in good faith, it is not to be restored, as was said concerning the possessor of good faith and concerning lost things, unless to the owner if he appears before prescription.

If the thing has been received in bad faith or from delict, restitution is to be made to works of mercy or pious causes, that is, to the poor, good works, Masses for the souls of purgatory, etc., because it is repugnant to natural law that someone can be enriched from another's thing through injustice; or also because the damage which through injustice was inflicted not only on the owner but also on human society, is to be repaired as far as possible by restoring to good works for the assistance of society. This by ecclesiastical law has been expressly established for simoniacs and usurers, and by the custom of the law of nations has been universally confirmed, so that a private person cannot do otherwise. Hence:

a) In restitution of debts toward unknown persons, the Pontiffs, as curators of pious causes, for a grave cause grant condonation or reduction.

b) If the unknown owner appears after restitution has been made to the poor, if the one restoring sought the owner with the required diligence, since he was of good faith, probably he is bound to nothing further, unless the thing still existed among the poor, in which case it would have to be repeated and handed over to the owner; if he was not diligent, as a possessor of bad faith he must compensate the damage inflicted on the owner.

c) If the debtor himself is poor, he can keep a proportional part of another's thing if it is necessary for relieving his poverty; as some say concerning one who is so poor and burdened with debts in such a way that it is not foreseen that otherwise he can free himself from debts. But this is not to be extended as a general rule to other cases, because the general reason always holds that no one ought to carry away advantage from his own malice. This is altogether true if the poor person deliberately committed injustices toward unknown persons so that he might become rich from them, or if he now omitted restitution in fraud so that later he could retain it for himself. In practice, however, poor persons are often excused from restitution on account of inability, if they are truly poor; for some allege poverty as a pretext.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 2 passages

Vol. I, Tr. VIII, Pt. III, Sect. I, Ch. III, Article II. To Whom Restitution is to be Made

n. 448.

I say. If the owner is certain and known, restitution must be made to him, as is clear, except the case in which the thing taken away had been deposited, leased, or loaned for use; for then it must be restored not to the owner but to him with whom it was found by title of deposit, lease, or loan for use. The reason is that the actual possessor cannot without injury be deprived of the right of keeping, use, or possession, unless he himself consents. But if the owner is doubtful or unknown, or if, although known, he cannot be reached, it must be established as follows:

1st. If after diligent inquiry the owner is still doubtful, either the doubt turns between few or between many. If the former, restitution must be made to them pro rata, or the presumed owners are to be induced to composition. If the latter, for example, because someone selling in some city defrauded many in weight or price, restitution is to be made by increasing in the same manner the weight or measure, or by diminishing the price toward ordinary buyers, who are presumed to have been damaged, if this can easily be done; otherwise restitution is to be made to the poor.

2nd. If the owner is plainly unknown, or if, although known, nevertheless he can be reached neither immediately nor mediately in a moral manner, one must distinguish: for either another's thing acquired in good faith is possessed, or in bad faith. If in good faith, then one must act as in things recently lost, whose owner cannot be found, and therefore either it is to be disbursed to pious causes or even can be retained by the possessor. But if in bad faith, the possessor must altogether despoil himself of such a thing and expend it upon pious works or works useful to the common good. And the same must be said of him who must restore by force of unjust damaging. The reason is both because, from common sense, the unknown owner is judged to be represented by the poor or by pious causes, and because custom so provides, which is the best interpreter of laws. And although some say that the debtor can expend those things upon any public utility, even a profane one, nevertheless ordinarily one must stand by the general custom in practice. But never can the possessor of bad faith or the unjust damager retain the debt under any pretext whatever, even of poverty, because no one ought to derive advantage from his own malice. - Cf. St. Thomas, 2-2, q. 62, art. 5. - St. Alphonsus, Hom. Ap., nn. 64, 67, and 69.

n. 449.

Question. Whether, when your creditor was forced to make cession of goods, you must restore to him or to his creditors?

Resp. Since in the case of cession of goods, according to civil laws, some administrator is ordinarily assigned, restitution must certainly be made to him, at least for avoiding the danger of restoring again. But if for whatever cause there is no one present who manages the administration of the goods, restitution can be made to the creditor, if the debt is small, if he is upright, and if you believe that he is going to restore to the creditors; likewise if he is in grave necessity and greatly needs that debt for sustaining life, because, as theologians commonly teach, one ceding goods can withdraw those things which are altogether necessary for living. Indeed, even in any case whatever, it can and must be made to the creditor by reason of justice, and only by reason of charity can the obligation of warning his creditors press. Cf. St. Alphonsus, n. 699. - Gousset, n. 772. - Ballerini, note (a), p. 588.

Billuart, Summa Summae

Charles-René Billuart, O.P. — 30 passages

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, To which of several creditors must restitution be made first?

The question arises when the debtor cannot satisfy all his creditors; for if he could satisfy all, it would matter nothing whether he restituted to one rather than to another, provided he restituted to all.

I say: In the first place, a thing existing in its own species, whose dominion the debtor has not acquired, however he may hold it — whether justly, as a pledge, a thing given in commodatum, hired, deposited, found, bought in good faith; or unjustly, by theft or rapine — must be given back to its owner, all other creditors being set aside, so that, even if the owner is unknown, it must be spent according to his presumed will on pious uses; because the thing cries out for its owner, and the debtor cannot restitute to his creditors from the goods of others, but from his own.

In the second place, privileged debts must be paid before all the others, even before mortgaged debts. Privileged debts are: 1° necessary and moderate funeral expenses for a husband, wife, child, or another person whom the debtor was bound to bury, L. penult. de Relig. sumpti. fun. 2° Expenses for drawing up and opening the will, for making the inventory, for physicians, surgeons, and apothecaries, l. ultima, c. de iure deliberandi.

3° Necessary expenses for preserving the debtor's goods or the house of the deceased. The reason of these, besides the laws cited, is partly that most of them are for the benefit of the creditors, partly that they are necessary and not to be omitted, so that satisfaction may be given to the creditors. Now no one is found who would be willing to provide them unless he were certain of repayment. And for this reason, in certain provinces, debts incurred for necessary food enjoy the privilege of priority, likewise the wages of servants and maids ⁴³⁰ ⁴³⁰ Ita Cod. Gall., art. 2101.

n. 5.

Roman law, as regards the expenses mentioned above, passed into the modern laws, in which among privileged credits are ranked judicial expenses, funeral expenses, medical expenses for the last illness, the wages of servants, debts for maintenance, and the fees of architects and workmen for the construction of buildings.

n. 6.

Privileges affect either movables, or immovables, or both at once, according as the creditor has the right that what is owed to him be paid out of these before all others. Moreover, privileges are general or special, according as they extend to all movables or immovables, or only to certain of them.

n. 7.

The order among privileged creditors is fixed not by priority of time, but by the quality of each credit, to which the law assigns its place or degree of precedence. Regard must be had to the law of each region. ⁴³¹ ⁴³¹ Cod. Gall., art. 2095-2113; Ital., 1952-1963. In Austria viget lex 15 dec. 1868; in Germania, lex 10 febr. 1871.

n. 8.

In the third place follow mortgaged debts.

n. 9.

Note. — A hypothec exists when a thing is given or assigned in security of a debt. If the thing is movable, it is called a pledge; if immovable, a hypothec. It is twofold: general, when all the debtor's goods, both present and future, are assigned or bound in security of the debt; particular, when a definite part of the goods is assigned, for example, this house or this estate. Again, one kind is express, when the stipulation concerning it is made expressly in the contract and before a magistrate; another tacit, which by force of the laws is inherent in certain contracts even though it is not expressed in the contract. Thus, if someone lends money for building, preserving, or repairing a house, a ship, etc., the house, ship, etc. remain bound to the lender by disposition of the law, l. Qui potiores, and l. Licet, c. eod. tit.

n. 10.

[A judicial hypothec is further distinguished, established by the judge's sentence in favor of those who have won their suit, by which all the immovable goods of the condemned party are burdened with the charge of repairing the damage.]

n. 11.

Mortgaged debts, therefore, whether express or tacit, general or particular, are to be preferred only to simple or chirographary debts, privileged debts excepted, of which we spoke in the preceding number: both because the hypothec or pledging was introduced by law so that the creditor might have priority or security for his debt; since the mortgage creditor has bound not only the person of the debtor but also his very property, while non-mortgage creditors have only the person of the debtor bound.

n. 12.

When, however, there are several mortgage creditors, regard being had to the nature of the thing, such is the order among them. Those holding an express hypothec are preferred to those holding a tacit one, and those holding a general one to those holding only a particular one.

n. 13.

Among several holding a similar hypothec, the earlier is preferred to the later; for in this case that rule of law above all prevails, 54ª in 6°: « Qui prior est tempore, potior est iure, » he who is first in time is stronger in right. And the reason is that a later hypothec cannot take away a right previously acquired by another.

I said, « regard being had to the nature of the thing; » because by disposition of positive law several cases are excepted, in which a tacit hypothec is preferred to an express one, and a later to a prior. Consult our greater Work, or the jurists, about these cases.

n. 15.

[Under the new laws: 1° the mortgage privilege avails only from the day of inscription in the registry of the conservator of mortgages. 2° No order is observed among those who inscribe on the same day, or under the same number, but they come in together, each for a proportional part of his credit. For the others, however, who inscribe on different days, or under different numbers, the rule of law cited above holds ⁴³²] ⁴³² Cfr. Cod. Gall., art. 2114-2203; Ital., art. 1964-2075.

n. 16.

You will ask 1° whether debts from delict and from onerous contract ought not to be restituted before debts from gratuitous contract, for example, promise, donation, etc.

n. 17.

I answer affirmatively; because no one reasonably intends to bind himself by a gratuitous contract to the detriment of those to whom he is bound in justice. Hence every gratuitous contract includes this tacit condition, unless something stands in the way of the promised thing being handed over.

n. 18.

You will ask 2° whether there is any order between debts from onerous contract on one side and debts from delict on the other.

n. 19.

I answer, more probably in the negative; because positive law nowhere establishes any order between these debts, nor does any reason show that an order must be established by the natural law. Since on both sides there is an equal unjust detention of another's property, the obligation is equal on both sides, for the obligation arises from the unjust detention. ⁴³³ ⁴³³ S. Lig., lib. IV, n. 688.

n. 20.

You will ask 3° whether the creditor who, among creditors neither privileged nor holding a mortgage, is the first to press his claim is to be preferred?

n. 21.

I answer affirmatively; because, according to the laws, l. Pupillus, l. Quae in fraudem creditorum, lib. 42, tit. 8, « diligence made his condition better, » and it acquired for him the right of preference; for « the civil law was written for the vigilant. »

n. 22.

[If that creditor presses his claim juridically, there is no doubt; because the sentence of the judge confers the privilege. Outside of court, he exercises a personal action against the debtor, and by demanding the whole debt he pursues his right; and if the debtor is in default toward the other creditors, this must be imputed to their negligence. This solution, which St. Alphonsus ⁴³⁴ calls the more probable, seems to us certain. ⁴³⁴ Lib. IV, n. 692.

n. 23.

You will ask 4° whether a poor creditor can be given precedence over a rich one.

n. 24.

I answer with St. Thomas, Opusc. LXXII, c. 18: « If one man is rich and the other poor and more in need of those things of which restitution must be made, and it is equally clear in both cases, restitution can justly be made to the poor man sooner than to the rich man, because he was more injured by the taking away of his goods, and because he stands more in need. » For the rich man would without reason object. What is said of restitution for damage inflicted must be said a fortiori of the payment of a debt arisen from a just cause. This, however, is understood on the supposition that by this payment the debtor does not become unable to pay the other debts integrally.

n. 25.

You will ask 5° whether a debtor who knows that he is already unable to pay all his debts can fully satisfy even a creditor who is not pressing his claim.

n. 26.

I answer in the negative; because since all creditors are equal in right, and none of them pursues his right, and consequently none of them has been made the stronger claimant by his diligence, natural equity demands that integral payment not be made to anyone to the prejudice of the others. ⁴³⁵ ⁴³⁵ Id., ibid., 3°.

n. 27.

You will ask 6° whether a creditor who in this case received integral payment is held to restitution toward the others.

n. 28.

I answer. It is disputed. Some deny it; because a creditor holding a personal right, since he can juridically press for payment, does not sin the more by accepting it when freely offered. Others affirm absolutely; because no creditor has the right to be paid integrally to the detriment of the others. Others distinguish. If the creditor accepted in good faith, he may keep it; for he is not held to restitute, neither on account of an unjust acquisition, because the acceptance was not formally unjust; nor on account of an unjust detention, because he acquired dominion over the thing paid. On the natural law the affirmative opinion seems truer, because all the creditors had an equal right to payment pro rata of the means remaining in the debtor's hands. ⁴³⁶ ⁴³⁶ Id., ibid., n. 693.

n. 29.

There is no doubt if such payment is declared invalid by positive law. Thus in France, by the law of 28 May 1838, payment made within, or after, the ten days elapsed before the cession of goods declared by the commercial tribunal is altogether invalid.

n. 30.

In practice, since it would be difficult to persuade a creditor who in good faith received integral payment before the legally fixed time that he is held to restitution, he is commonly left in his good faith: both because positive law does not constrain him to restitution, and because an opinion not lacking probability supports him. But to the one who received after the time fixed by law, restitution is to be imposed absolutely, even if he was in good faith; because the payment was invalid.]

Concina, Compendium

Daniele Concina, O.P. — 2 passages

Diss. II, Chapter III — On those to whom restitution ought to be made; and on the order to be observed in restitution

n. I.

I. QUESTION I. To whom ought a thing received from a possessor of good faith to be restored? ANSWER. The thing is to be restored to the lord, because it always cries out to its own lord. And if he to whom restitution is to be made be dead, the goods ought to be restored to the heirs, either by testament or ab intestato. If you have received goods from religious, they are to be restored to the monastery; if from a son of a family, to the parents; if from a wife, to the husband — unless it be established that alienations of this kind were made with the consent of the lords.

n. III.

III. QUESTION II. To whom is restitution to be made when the lord is unknown? ANSWER. Of the restitution of things found it has been spoken above. Now the discourse is of things taken away by theft, or by another title, which are found with a possessor. First, all diligence is to be used that the lord be found. If it be doubted whether the thing is to be restored to Peter or to John, the restitution is to be divided in proportion to the doubt. If finally the lord can in no way be found, the goods are to be distributed among the poor. Similarly, that goods acquired by simony are to be laid out upon pious works, the more probable opinion teaches. Goods gathered by usury, if those from whom the usuries were extorted are known, ought to be restored to them; if they are unknown, they ought to be conferred upon the poor. When the buyers of some community have been injured by unjust sales, then the buyers of the same place ought to be compensated by sales at a cheaper price, when the injured buyers are unknown. In these cases the parish priest or the bishop is to be consulted.

Bontempi, Palladium Theologicum V

Gaudentius Bontempi of Brescia, O.F.M. Cap. — 11 passages

Tr. I, Disputation XXIV: On Resti…, Question IV: To whom restitution is to be made

ALL agree that restitution is owed by him from whom the thing was accepted: Four conditions, however, being laid down.

The FIRST is that he from whom it was accepted have a right to the thing, either as Owner, or as steward, or keeper.

The SECOND, provided that no loss is going to accrue from it to him from whom it was accepted, nor to another, for instance, that he is going to squander the thing, or that others are going to use it for crime.

The THIRD, if the giving was not of itself unjust, as in the case of a simoniac; yet if it was joined from the origin with an external sin, for instance, because it is the price of fornication, it is no obstacle. Yet even to a simoniac restitution can be made, Caspensis says sect. 1. before a sentence is delivered against him by the judge. So also Navarre Lib. 4. de restit. cap. 2.

n. 5.

The FOURTH, that the restitution be made to him from whom you received it, either by yourself, or through another. See Valencia puncto 4.

n. 6.

HERE a question occurs: Whether another's thing, accepted from a thief, ought always to be restored to the true Owner: The reason of the doubt is that it may have been accepted from him in good faith: Therefore it is to be given back to him, and the price paid is to be recovered; and so think Alens. 4. part. quaest. 86. memb. 3. art. 5. Summa angl. V. Restitutio, Gabriel 4. dist. 15. quaest. 3. dub. 5. Navarre Manuali, cap. 17. num. 9. Valencia at the place cited, provided it be given back to him to redeem his own price, not that the thief may retain it. This seems to me true, against some as reported by Valencia at the place cited and Fagundez in septimum praeceptum, Lib. 7. cap. 20. My reason is that I am bound to look first to my own innocence, rather than to another's; and to my own family property, rather than to another's; why, therefore, should I lose my own price without profit, so that another's thing may be restored?

n. 7.

Yet Peter Eligius Bassaeus says V. Restit. 4. §. 2. num. 7. if he does not find the thief, or the thief, when found, is unwilling to give back the price, the thing is to be restored to the Owner. So Peter of Navarre lib. 3. cap. 4. num. 191. Filliucius tract. 32. num. 85. Sayrus lib. 10. tract. 2. num. 17. Lessius lib. 2. cap. 14. dub 3.

n. 8.

But why should I without profit deprive myself of my own price, when the debt is in the thief? I know this can be done in the external forum. Let him act meanwhile; the thief can be found and compelled.

n. 9.

Meanwhile I am not bound to give it back in conscience, as Filliucius says tract. 32. num. 84. and others, although others disagree.

n. 10.

UNCERTAIN debts arising from a lawful contract, with the creditor unknown, or too remote, you may retain; for since by Canon Law alone uncertain debts, unjustly contracted and from a wicked acquisition, for instance from usury, devolve upon the poor, I do not see why these should be paid. See Peter of Navarre lib. 4. cap. 1. num. 46. Layman lib. 3. sect. 3. tract. 2. cap. 9. Lessius lib. 2. cap. 14. num. 58. Bassaeus num. 4.

n. 11.

THE Sainted Doctor indicates these rules in the Confessionale, cap. 4. part. 2. concluding with that epiphonema of the Apostle 13. Reddite omnibus debita, etc.

Slater, Cases I

Thomas Slater, S.J. — 12 passages

Slater, Cases I, Restitution, Case 3. A Tipster's Obligations