Chapter XLI: Part II: SPECIAL MORAL THEOLOGY (Continued) (4)

(c) the act must be subjectively unjust, that is, culpable and imputable; for one is not bound to satisfy for acts that are inculpable or not imputable (see 97 sqq.). There must be either theological culpability, that is, the intention to harm another, which is sinful before God (e.g., he who purposely sets fire to his neighbor’s barn), or juridical culpability, that is, carelessness which causes injury to the legal right of another (e.g., he who lights a fire near his neighbor’s buildings and by his absent-mindedness permits the buildings to catch fire).

1764. Some Causes That Remove or Diminish Theological Culpability.--(a) Mental derangement or passion (e.g., great fear or anger) may make an injurious act unintentional and so take away natural liability for restitution (see 40 sqq.), but the civil law does not always admit the excuse, and after sentence the offender is bound to pay.

(b) According to some authorities, error about the extent of the harm that is being done, if invincible, excuses from restitution for damage that was not apprehended, as when a thief throws a gem into the ocean, thinking that it is only an imitation gem. But the offender would be held for the entire loss, if sentenced.

(e) Error about the person injured, even though invincible, probably does not excuse from restitution, if the intention was to harm a class (e.g., Sempronius intends to kill Balbus, because the latter is a policeman, but by accident he kills another policeman) or an individual (e.g., Caius intends to kill Titus and by mistake kills Claudius, the twin-brother of Titus).

(d) Error about the thing injured, even though invincible, probably does not excuse from restitution, if the intention was to do damage (e.g., Julius puts poison in a plate in order to kill his neighbor’s dog, but the cat takes the poison and is killed).

1765. Restitution for Damages That Are Only Venially Sinful but Seriously Harmful.--(a) When one injurious act is committed (as when through slight carelessness one sets fire to one’s neighbor’s chicken coop), some deny, but others affirm, the duty of restitution, while still others distinguish according to the full or only partial advertence to the sinfulness of what is done. Of those who hold for restitution, some think that all the damage should be repaired, since all was caused; but others think that it suffices to repair part, since the culpability was limited.

(b) If several injurious acts, which taken singly are slight but taken together are serious, were done to the same person (e.g., a waiter breaking dishes at various times while working for the same proprietor), restitution is due as soon as the sinner realizes the amount of harm he has caused; but it is disputed whether the obligation is grave or light. If the injuries were done to different persons (e.g., a boy breaking windows in many houses in the neighborhood), there is more probably only a light obligation.

1766. Restitution on Account of Law for Damages That Are Only Juridically Culpable.--(a) Before sentence of court there is no obligation of restitution, for it would be too heavy a burden to impose this in view of the absentmindedness of so many persons and the numerous distractions one encounters.

(b) After sentence of court there is an obligation of restitution, for the law which gives the court a right to impose it is reasonable, since juridical fault is often accompanied by theological fault, and moreover men will thus be led to a greater prudence in the care of their own goods and in respect for those of others.

1767. Restitution on Account of Contract for Damages That Are Only Juridically Culpable.--(a) Express contract obliges to restitution even for light fault (i.e., the omission of precautions taken by the more prudent), or most light fault (i.e., the omission of precautions taken by the most prudent only), or, if so stipulated, for no fault at all.

(b) Implied contract perhaps also obliges to restitution for juridical fault, for it seems that equity requires one to make good the losses caused by the absence of a care which the contract took for granted. Thus, if the advantage is with the bailor alone (e.g., gratuitous deposit), ordinary care is expected and the bailee is not held in danger to prefer the bailor’s goods to his own; if the advantage is with both parties (e.g., onerous deposit or loan), it seems that more than ordinary care is demanded and that usually the obligor may give preference to his own goods.

1768. Restitution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers.--(a) If there was theological fault, restitution is due, unless the injured party took the risk upon himself. (b) If there was only juridical fault, it seems there is no natural duty of restitution, since no injustice was done; but a court may oblige to damages.

1769. Two Cases in Which Culpability Seems Doubtful.--(a) When one has inculpably done or omitted something from which damage to another can be foreseen, and one has now become aware of the danger (as when Balbus lights a fire on his own property and sees that a change of the wind makes this fire dangerous for his neighbor’s barn), one must prevent the damage, if this can be done without equal or greater damage to oneself; otherwise one must make restitution.

(b) When one has culpably done or omitted something from which damage to another was foreseen, but has tried, though in vain, to prevent the damage after the cause was placed, restitution is due if the cause was physical (e.g., Claudius gave poison to Titus, and then moved by remorse gave an antidote, but Titus died), since the party who set the cause in operation is responsible; but if the cause was moral (e.g., Balbus ordered a gunman to beat up Caius, but withdrew the order, and the gunman on his own responsibility then assaulted Caius), restitution is not due when the revocation ends one’s influence upon the damage that ensues.

1770. Three Kinds of Unlawful Possessors.--The second root of restitution mentioned above (1762) is unjust possession, which includes the acceptance or the retention of another person’s goods against the latter’s will. There are three kinds of unlawful possessors:

(a) the possessor in good faith, who is one that has been invincibly ignorant of the unlawfulness of his possession, but now learns his error (e.g., a buyer who discovers that the horse he purchased did not belong to the seller but was stolen property);

(b) the possessor in doubtful faith, who is one that has serious reasons for fearing his possession is unlawful (e.g., the buyer of a horse learns that the seller is known to have sold some stolen property, or that the price he charged for the horse was remarkably small);

(c) the possessor in bad faith, who is one that knows his possession is unjust (e.g., a buyer who purchases a horse which he knew had been stolen by the seller).

1771. Obligations of the Possessor in Good Faith in Reference to the Property Itself.--(a) If the property is still in his keeping, he is generally obliged to return it to the owner, for a thing calls for its owner. An exception would be the case in which the possessor can not return the property to the owner without a greater loss to his own property.

(b) If the property has perished, the possessor is generally obliged or not to restitution according as he has been enriched or not by the property; for one person should not be enriched at the expense of another, but property perishes to its owner.

(c) If the property is in possession of a third party to whom the possessor transferred it, he is generally obliged or not to restitution to the third party, on the latter’s dispossession, according as he has been enriched or not by the third party’s goods; for if he received nothing for the goods, he is clearly bound to nothing, but if he received payment, he must indemnify the buyer who is evicted for lack of title.

1772. Obligations of the Possessor in Good Faith in Reference to the Fruits of the Property.--(a) He must restore the fruits of the thing itself that are in existence, for the thing fructifies to its owner. Hence, he should restore to the owner the natural fruits (e.g., the fruit on the owner’s trees) and the civil fruits (e.g., the money received from hire of the owner’s horse).

(b) He must restore the fruits of the thing itself which are not in existence, but from which he has been enriched (e.g., the net profit from last year’s crops which the possessor has in the bank).

(c) He is not obliged to restore the fruits of his own labor or industrial fruits (e.g., the extraordinary interest derived from the owner’s money through the good judgment and energy of the possessor), nor the fruits that he consumed without enrichment (e.g., the vegetables he gave away or wasted).

1773. Rights of the Possessor in Good Faith in Deducting Expenses.--(a) He may deduct for all expenses that have benefited the owner, that is, for all the money he spent in necessary or useful ways in preserving or caring for the property. (b) He may not deduct for expenses that have not benefited the owner, or which the owner would not have reasonably authorized, such as special beautification of the property. But he may take away such adornments added by him as can be removed without injury to the property.

1774. Obligations of the Possessor in Bad Faith in Reference to the Property Itself.--(a) If the property is still in his keeping, he must return it to the owner, for a thing calls for its owner. But if the actual possessor had the property from the thief and could not restore it to the owner without serious loss to himself, it is held by some that he could return it to the thief in order to recover his money.

(b) If the property has perished or restitution of it has become impossible, he must compensate the owner, even though he has not been enriched, unless the goods would have perished equally with the owner; for he is then the efficacious cause of the loss. The same principle may be applied to damages through deterioration. The civil law often holds the thief responsible, no matter how the goods perished in his hands.

(c) If the property is in possession of a third party who bought it in bad faith from the possessor in bad faith, the seller is not bound to restitution to his purchaser on the purchaser’s eviction, unless there was agreement to that effect; for he who buys, knowing that there is no good title, buys at his own risk.

1775. Obligation of the Possessor in Bad Faith in Reference to the Fruits of the Property.--(a) He must restore the natural and civil fruits, even though the owner would not have obtained them from the thing, but he may keep the industrial fruits.

(b) He must make restitution for the profits lost and the losses suffered by the owner through the unjust deprivation of his property, for these are damages of which the possessor was the unjust and efficacious cause.

1776. Obligations of the Possessor in Doubtful Faith Who Began Possession in Good Faith (Supervening Doubt).--(a) If he does not culpably neglect attempts to settle his doubt, he becomes a possessor in good faith. If the doubt is settled against him, he must restore (1771); if the doubt continues, he may retain possession and prescribe (i.e., acquire ownership through long exercise of ownership rights), for presumption favors the possessor, but he must he willing to restore, should another appear as the rightful owner.

(b) If he culpably neglects attempts to settle the doubt, he becomes a possessor in bad faith. If the doubt is settled against him, he must restore (1800), at least for the time during which his culpability was grave; if the doubt continues and its settlement is impossible through his fault, it seems that he should share ratably with another claimant according to the strength of the respective claims; if the doubt continues and there is no other claimant, it seems that he may act on the principle that presumption favors the possessor.

1777. Obligations of the Possessor in Doubtful Faith Who Began in Bad Faith (Antecedent Doubt).--(a) If the property came to the possessor in doubtful faith without legal title (e.g., by violence), he has the obligations of one in bad faith, for presumption favors the former possessor.

(b) If the property came to him by legal title (e.g., by gift or sale), but from a former possessor of doubtful or suspected faith (e.g., one who seemed to have the property through theft), he must attempt to settle the doubt. Should the doubt nevertheless continue, some think he should divide it with another probable claimant, but others believe he may retain all.

(e) If the property came to him by legal title and from a former possessor in good faith, he must attempt to settle the doubt; but if the doubt remains in spite of his inquiries, he may retain the property in good faith, as long as matters continue in the same state.

1778. Cooperators and Restitution.--Restitution is owed for cooperation in injustice when the cooperator becomes at least partially an unjust and efficacious cause of damage to another. It should be noted that this cooperation may be of a limited kind, as when it extends only to the mode of the damage, or when it is not indispensable to the commission of the injury.

(a) Thus, he who cooperates only as to the mode of injury is probably liable only for that damage which he added to the substantial damage. Thus, if Balbus intended to steal $10, and Claudius persuaded him to steal $20, it seems that the influence of Claudius extended only to the amount of $10.

(b) He who cooperates, but whose assistance is not necessary, is bound to restitution as a cooperator, since he is an unjust and efficacious cause of damage. Thus, if Caius steals for Sempronius, knowing that, should he refuse, Mercurius would carry out the orders of Sempronius, the readiness to steal on the part of Mercurius does not excuse Caius or make his act any less harmful.

1779. Positive cooperators in injury are bound to restitution when their act is the unjust and efficacious cause of the damage. The principal cases of positive cooperation are the following:

(a) a mandator is a superior who explicitly or implicitly commands an inferior subject to commit an act of injustice, as when a father bids his son to steal. The mandator bids another to act in his name, and therefore he is the principal and not the accessory or secondary cause of injury. He must indemnify both the victim and the agent for losses he caused them; but he is not liable if he effectively recalled his mandate before the damage was done;

(b) an advisor is one who through instruction or persuasion induces another person to commit an injury which is not done in the name of or for the benefit of the advisor himself. He must make restitution both to the person whose injury he recommended and to the person to whom he gave the advice for the damages he brought upon them. Those who give wrong advice in good faith, or who recall their advice before the damage is done, are generally excused from responsibility. Bad example does not seem to be equivalent to bad advice, and he who recommends a lesser evil only because he wishes to prevent a greater one is not an efficacious cause of the lesser evil (see 1502, 1503);

(c) an implicit advisor (_palpo_) is one who by flattery, excuse, blame, ridicule or other such indirect means leads another to commit injustice against a third party. The implicit advisor is bound to restitution for damages caused or reparation denied through his fault;

(d) a protector or encourager (_receptans_) is one who knowingly and willingly bestows upon a malefactor, as such, security or comfort, in order that the latter may do injury with greater confidence or omit restitution for evil already done. He is bound to restitution for the unjust damage or retention of property caused by him;

(e) a consenter is one who gives his vote, decision, or approval to injustice, or denies it to justice. He must recall his consent to iniquity before evil results from it, and he must make restitution for damages that depend on his conduct;

(f) a partaker in injustice is one who gives assistance in the commission of injustice, positively and physically, by sharing in the injury or in some previous or subsequent act naturally connected with it. If he is a cooperator in unjust damage, he must indemnify the injured party; if he is a cooperator in unjust retention of property, he must give back to the owner the stolen goods received by him (1774).

1780. Negative cooperators are those who by their silence or inaction permit an injury to be done or to go unrepaired. They are bound to restitution for the damages caused by them; but it seems that _per se_ at least they are not bound to restitution for bribes taken by them or fines lost through their fault. Their responsibility for damages supposes the usual conditions, namely: (a) they must be the efficacious causes of damage, and hence if their silence or inaction is involuntary, or if outcry or resistance would be useless they are not responsible; (b) they must be unjust causes, that is, there must be an obligation to act owed by reason of strict right, contract, or implied contract. Examples are confessors who culpably neglect to give penitents needed spiritual advice, parents who permit damage to be done by their children who have not the use of reason, voters who absent themselves and thus cause damage they were bound by contract to prevent, owners of animals who sinfully permit their beasts to ravage the fields of another person, doorkeepers who allow thieves to enter a house under their charge, collectors who permit bills to go unpaid. But if the obligation is owed by reason of some other virtue than commutative justice (e.g., one is bound only in charity to turn in a fire alarm when one notices a fire, if one is not the custodian of the house), one sins, and at times gravely, by inaction; but there is no duty of restitution.

1781. The Circumstances of Restitution.--By the circumstances of restitution are understood the persons by whom and to whom compensation is to be made, the things to be restored, the manner, time and place of restitution.

1782. The persons bound to make restitution are all those who singly or cooperatively commit injustice. But when several commit injustice together, the following kinds of causes of the injustice must be distinguished:

(a) the causes are equal when there is no subordination among the cooperators; they are unequal when one is a principal upon whom the others depend as secondary causes or instruments (e.g., when one hires thieves to steal for one);

(b) the causes are considered as total causes of the injury when they are principal causes, or equal but indispensable cooperators, or conspirators; and perhaps also if they are sufficient causes (e.g., Caius and Sempronius each fire at a neighbor’s cow and each inflicts a mortal wound), or if the thing damaged is either not divided (such as a vineyard) or indivisible (such as a painting). In other causes cooperators are considered as partial causes of the injury.

1783. Cooperators in damage are bound to restitution either _in solidum_ or _pro rata_.

(a) Thus, they are bound _in solidum_ (i.e., jointly and severally) for all the loss when they are total causes of the damage, But the principal cause is bound absolutely, the secondary or equal cause only conditionally, that is, the principal must pay all the restitution himself, the others must pay all only when the principal or other associates fail to do their duty.

(b) They are bound _pro rata_ (i.e., each one according to his share) when they are only partial causes of the damage. The obligation of restitution _in solidum_ should not be imposed, if it is uncertain, or if the cooperator is in good faith and the admonition would only produce harm.

1784. The order of restitution among cooperators in injury is according to the priority of the obligation of one to that of another, in the sense that one is obliged to pay all and the other is obliged only in the former’s default. This order of priority in obligation is in force when many cooperators are bound _in solidum_ and when they cooperated in different ways (e.g., one as possessor, another as advisor, another as performer, etc.). The order generally given by moralists is as follows:

(a) the possessor is bound first of all, since he has the goods of another and the goods call for their owner;

(b) the cooperators are bound next in the following order: the originator (such as a perpetrator acting in his own name, or a mandator); the perpetrator acting in the name of another; the others who aided the commission of the act (such as advisors, flatterers, etc.); those who did not prevent or resist injustice.

1785. The obligations of cooperators when restitution in full is made by one of their number, or when condonation of debt is made to one of their number, are as follows: (a) if restitution was due _pro rata_, the other cooperators must indemnify their associate who paid all, or must pay their shares to the injured party who gave condonation only to one of their group;

(b) if restitution was due _in solidum_, payment by or condonation to a principal cause frees the secondary causes; but payment by or condonation to a secondary cause does not exempt a principal cause, and the latter is still held either to the secondary cause or to the injured party, as the case may be; payment by or condonation to an equal cause does not exempt the other equal causes.

1786. The person to whom restitution must be made is the person whose strict right has been violated, or, in his absence, it is society. But the following cases should be distinguished:

(a) when the injured person is known for certain and his right is certain, restitution should be made to the injured person or his representatives or successors, or, if this is not possible, to charitable or pious causes;

(b) when the injured person is entirely unknown, if the one who is the cause of the loss is in good faith, his obligations are those of a possessor in good faith; but if he is in bad faith, the common opinion is that he is bound, at least from customary law, to make restitution by giving to the poor or to religion;

(c) when the injured person is partly unknown, the person who is the cause of the loss should make restitution to the best of his ability. If the doubt extends to only a few persons (say four or five), any one of whom may be the injured person, restitution should be divided in the best way possible among these persons; if the doubt extends to many, but the injured persons were only a few, it seems that restitution may be made by giving to charity or religion either in the place of the injury or elsewhere; if the doubt extends to many, and the injured persons were many inhabitants of the locality, restitution must be made if possible to the injured parties themselves, otherwise to some public cause of the local community.

1787. Order of Preference Among Creditors.--The natural order of preference is to be shown to creditors when the debtor is unable to pay them all.

(a) Those who have a right _in re_ (e.g., those whose property is held by the debtor) have precedence over those who have only a right _ad rem_ (e.g., those who are creditors from contract).

(b) Creditors from onerous contract or delinquency, it is generally admitted, have priority over creditors from gratuitous contract.

(c) Creditors from delinquency and creditors from onerous contract, according to what seems to be the common opinion, are equal in rights and should be settled with _pro rata_.

(d) Debts that are certain have priority over debts that are uncertain, according to some; others deny this, but admit that the uncertain debts need be paid only in proportion to their probability.

(e) Creditors who are certain are by some preferred to creditors who are uncertain; but others think that payment to the poor, in place of the unknown creditor, is the latter’s presumed will, and that it has an equal standing with debts owed to known creditors.

(f) Poor creditors have no just claim to preference over rich creditors; but charity dictates that, when the poor creditor is in distress, he should be given the preference.

(g) Earlier creditors have a preference over later creditors in a real claim, but it is disputed whether this holds also in a personal claim.

(h) The creditor who asks for a settlement sooner has a preference, if the petition is made juridically, and perhaps also if it is made privately.

1788. The order of preference among creditors according to civil law is generally as follows: (a) proprietary creditors (i.e., those whose property is held by the debtor); (b) privileged creditors (i.e., those whose debts have a special urgency, such as judicial expenses, doctors’ bills, wages for hired help, living costs, etc.); (c) hypothecatory creditors (i.e., those who have claims against the property of the debtor, in the form of liens, mortgages, etc.); (d) common creditors (i.e., all those who are paid after the previous creditors have been satisfied). American law contains provisions in regard to dispositions of property made during the four months before bankruptcy is tiled, so as to protect the creditors of a person who is insolvent. The property of a bankrupt is placed in the hands of an assignee and allowance is made for the debtor’s needs and perfected liens (i.e., charges legally made upon property for debt). The property is then subject to levy by the creditors as follows: maintenance expenses, legal fees, costs of administration, wages of workmen, taxes, debts having priority under Federal or State law.

1789. The “Thing” to Be Restored.--(a) In case of unjust possession, the identical object must be restored, if it has an individual value; otherwise it may be restored in its equivalent. (b) In case of contract, the identical object must be restored, if that is the agreement (e.g., in loan of a chattel, or deposit), otherwise it may be restored in its equivalent (e.g., in loan of money).

1790. The “Amount” of Restitution in Certain Cases.--(a) When an Object Had Various Values During the Time of Its Possession in Bad Faith.--If the change was from an internal cause and was for the better (e.g., the calf stolen by a thief has become a cow), the return must be made in the improved state; if the change was from an internal cause, and was for the worse but would have happened in any case (e.g., the cow taken by the thief has become old), return must be made in the actual state; if the change was from an internal cause and for the worse, which would not have happened had the object remained with the owner (e.g., a cow taken by a thief has become lame on account of the thief’s carelessness), return must be made also for the deterioration. If the change was from an external cause (e.g., the wine taken by a thief has risen and declined in value several times), it seems that practically nothing more can be imposed by way of restitution than the value the object had when taken.

(b) When Unjust Damage has been Done.--If the damage was caused positively, the injured person must be indemnified entirely, if the damage was caused negatively, the injured party should be indemnified more or less according to the reasonable expectation he had of the gain of which he was deprived.

1791. The “Manner” of Making Restitution.--The general rule is that it should be made in such a way that the injury will be repaired and the injured person indemnified for his loss. Generally speaking, there is freedom of choice as to various forms in the modes of restitution. Thus, it may be made publicly or secretly, directly or through an intermediary, positively (by payment) or negatively (by cancellation of a debt). It may even be made without the knowledge and intention of the parties. (a) Thus, the injured party may be compensated, even though he is unaware that he was cheated or that he is being paid back; (b) the offender may restore, even though he does not know he is doing so (e.g., if he pays while intoxicated), and probably even though he has no express intention of doing so (e.g., if he makes a present of $10, and then remembers that he owed damages to the amount of $10).

1792. Second Restitution.--Natural law must be applied to certain cases in which restitution sent through an intermediary perishes on the way through no fault of the debtor. (a) If the debt is owed on account of possession in good faith, the debtor is not bound to a second restitution. (b) If the debt is owed on account of contract, the goods perish to the owner. Thus, if the contract was one of loan, the loss must be borne by the lender; if it was one of sale, by the seller. (e) If the debt is owed on account of delinquency, there is an obligation to a second restitution, unless the injured party assumed the risk of transmission. It is held as probable that the choice of the confessor as intermediary for restitution has the consent of the injured party, and hence that, if the restitution perishes on the way through chance or the fault of a third party, there is no duty of second restitution.

1793. The “Time” When Restitution Must Be Made.--(a) Internal restitution, or the purpose of restoring, must be made at once, that is, as soon as one adverts to the necessity of this resolve. (b) External restitution, or the fulfillment of the resolution, must be made at the first suitable opportunity.

1794. Unjust Refusal to Make Restitution or Pay Bills.--(a) Those who unjustly refuse to make restitution or to pay their bills at the proper time are guilty of mortal or venial sin according to the damage their refusal causes to the creditor. (b) They are not worthy of absolution if there is serious bad faith on their part, as when they have many times broken their promises, or when they refuse to pay even the part or installment which is within their power. (c) They are bound to additional damages for the losses caused by the unjustifiable delay.

1795. The “Place” Where Restitution Must Be Made.--(a) He who is a debtor on account of injury must make restitution at the place where the thing would be were it not for the injury. (b) He who is a debtor on account of possession in good faith should notify the owner where the property is, but he is not obliged to bring it to the owner. (c) He who is a debtor on account of contract must abide by the agreement, or by the statutes that regulate the contract. Thus, in this country the place of delivery in sales is according to law the seller’s place of business or his residence.

1796. Burden of Expense or Loss When Restitution Is Sent to the Place of the Creditor.--(a) If the obligation of restitution arises from injury, the debtor is generally bound to pay the transportation and to stand the loss when the goods perish in transit. (b) If the obligation arises from contract, the expenses and losses must be borne according to the agreement.

If nothing was stipulated, it seems equitable that the expenses of transportation be borne by the party who benefits or who requested the contract. According to the Sales Act in the United States, the seller is the loser when goods perish in transit, if a place of delivery had been agreed on; but the buyer is the loser when in pursuance of the contract the goods had been delivered to a carrier for transmission to the buyer (see 1888 d).

1797. The Causes That Excuse Temporarily from Restitution.--These causes can be reduced to two, namely, physical and moral impossibility. (a) Physical impossibility exists when the debtor has not the means to pay and cannot secure them; and it excuses as long as it continues. One who is bankrupt is excused from restitution during the continuance of his insolvency; if he later becomes able to pay, it seems to some that the civil declaration of bankruptcy according to the law of the country releases him from further payment, unless his bankruptcy was fraudulent or due to culpable neglect. (b) Moral impossibility exists when the debtor has the means, but cannot pay immediately without incurring a loss of a higher order (e.g., if he pays the small sum of money, he will lose his own excellent reputation), or without suffering a greater loss in his own goods of the same order (e.g., if he pays the money, he will be reduced to starvation), or without surely bringing on a far greater evil than delay of restitution to the creditor or a third party (e.g., if a stolen weapon is returned to its owner, he will commit suicide or murder).

1798. The Causes That Excuse Permanently from Restitution.--These causes can also be reduced to two general ones, namely, the cessation of the object and the termination of the obligation through the act of the creditor, or of the debtor, or of authority.

(a) Thus, the cessation of the object releases from the duty of restitution whenever the object perishes to its owner, as when it is lost by a possessor in good faith who has not been enriched by it, or even by a possessor in bad faith, if it would have been lost equally by the owner (see 1771, 1774).

(b) The termination of obligation through the act of the creditor occurs when the creditor freely and lawfully excused the debtor from payment. In some cases condonation may ordinarily be presumed, either on account of the affection of the creditor for the debtor (e.g., in case of debts owed by children to their parents) or on account of the familiar relationship between the parties and the smallness of the debt (e.g., in case of appropriation by servants or employees of some unimportant articles not kept under lock and key), or on account of the indigence of the debtor and the smallness of the damage (e.g., in case of trifling harm to goods of a wealthy person, if there was no great malice and the debtor is very poor).

(c) The termination of obligation is also effected by equivalent payment, which in certain cases is made by payment of the creditor’s creditor, or the cancellation of an equal debt owed the debtor by the creditor, and perhaps also by a gift made the creditor by the debtor and equal in value to the debt. Occult compensation by the creditor is the secret taking by him of what he is entitled to when the debtor will not give it of his own accord. This is lawful when the debt is certain, other means of recovery impossible, and the compensation not injurious; but it covers restitution, and hence the creditor cannot accept another payment from the debtor.

(d) The termination of obligation is also effected by the act of competent authority. Thus, judicial declaration frees from the duty of restitution a person who has lawfully and in good faith received certain goods as damages or award; prescription (see 1875) gives a clear title to property held by adverse possession over a certain number of years, and it frees from the duty of payment, at least in certain cases (though not in the United States); papal composition for good reasons exempts from their obligation those who owe restitution to pious causes or to church property injured by them.

1799. Condonation of the domestic thefts of wives and children of the family cannot be presumed in all cases (see 1903).

(a) Thus, if the things stolen are articles of food and drink (or tobacco), and were consumed by the members of the family, there is no duty of restitution, since the father or husband is then unwilling, not so much that these things should be taken, as that they should be taken furtively.

(b) If the things taken do not fall under the class of eatables and are still in the possession of the thief, they should be restored. Hence, if a son steals money from his father in order to have the means for debauchery, he must give back that money.

(c) If the things taken were not eatables, but were of great value and have been consumed or alienated, it will depend on circumstances whether restitution is obligatory or not. Thus, if the father thinks much of the son who took the money and the family does not miss it much, condonation may perhaps be taken for granted; but if the son is not on good terms with his father, or if the theft is very harmful to the family, restitution may be due.

1800. Excuse from Restitution on Account of Doubtfulness of Obligation.--(a) One who doubts positively and in good faith whether or not he did damage to another is excused from restitution if the doubt is about the fact of the damage (e.g., whether his competitor lost business) or about his own culpability (e.g., whether he circulated a calumny about his competitor); he is probably held to restitution _pro rata_ of the doubt, if the doubt is about the responsibility of his culpable act for the damage that followed (e.g., whether his calumny or the poorness of the competitor’s wares caused the falling off in business); he is probably held to only his share, if the doubt is whether his culpable act was responsible for the whole or only a part of the damage (e.g., whether his calumny caused all the damage, in view of the fact that others were also spreading calumnies).

(b) One who doubts positively and in good faith whether the restitution owed by him has been paid (e.g., whether his fellows in calumny have paid their portions of restitution, whether he has paid a bill for goods or services received) is held to full payment by some, to part (_pro rata_) payment by others, to nothing by others. Some moralists think the presumption favors the creditor, others that it favors the debtor, others that it favors neither and that a compromise is the right solution.

1801. Doubt does not excuse restitution in the following cases: (a) when it is merely negative and the presumption is against the doubter (e.g., when a person knows that he purchased and received goods, but does not know whether or not he paid for them, and has no reason to think he did pay); (b) when it is in bad faith, that is, knowingly or intentionally produced (e.g., when two men simultaneously fire at a neighbor’s cow, knowing that it will thus become impossible to determine the author of the damage).

1802. Special Cases.--There are some special cases of restitution for negative injury in thwarting another’s prospects, or for positive injury to goods of fortune, of body, of soul, or of spirit.

(a) For Frustration of Another’s Good.--Restitution is due for keeping another from a good to which he has a strict right (e.g., an office to which he has been chosen, property for which he has paid), or for using force, fraud, bribes, or other unjust means to keep another from a good to which he has a non-strict right (e.g., a position for which he has made application, a gift which another contemplates bestowing on him). The amount of restitution should be calculated according to the previous probability of success on the part of the injured party and the permanent results of the injury.

(b) For Injury Done to Goods of Fortune.--Private injuries are spoken of elsewhere (see 1762 sqq.), and now we consider only injuries that are in some way public. Commutative injustice entailing restitution to the community is committed by damage to public property, breach of contract made with the community, unjust means employed to prevent the government from obtaining its dues, unjust cooperation in any of the aforementioned acts; commutative injustice entailing reparation to individuals is committed when the transgression of a law places an undue burden on a fellow-citizen (e.g., when one unjustly escapes military or jury service and causes a substitute to be called who would not have been called otherwise, or when one unjustly evades one’s taxes and thereby certainly causes the taxes of others to be raised). If a tax law is just, it obliges in conscience, but whether as penal or preceptive, whether in virtue of legal or commutative justice, is a much debated question; and hence the question of sin and of restitution due is not easily settled. Impossibility or a general and admitted custom excuse from restitution (see 2637 sqq.).

(c) For Injury Done to Goods of Body or Personal Goods.--According to one view no restitution is due for merely personal injuries, since the damage cannot be repaired by a good of the same kind as that which was taken away (e.g., the murderer cannot give back life to his victim); but according to another view restitution is due for these injuries, since justice requires that every kind of damage be repaired as far as possible (see 1751 and 2090).

1803. Restitution for Various Kinds of Damage Done to Persons.--(a) For Bodily Injury by Unjust Homicide or Mutilation.--The offender (or his heirs) is obliged to restitution to the victim (or his heirs or dependents) for spiritual loss (such as death without the Sacraments), probably for personal loss (such as pain, facial disfigurement), and for real losses due to the injury (such as hospital expenses, loss of support by the widow and orphans). The spiritual loss is compensated by spiritual goods, such as suffrages for the departed, the personal loss by compensation suited to the circumstances (e.g., money employment), the real loss by payment of medical expenses, loss of time, support lost by dependents, etc. The offender is not liable for damages of which he is not the unjust cause (e.g., the alms that will be lost by poor persons on account of homicide, since they have no strict right to the alms), or the efficacious cause (e.g., the pay that will be lost by creditors on account of homicide, for as a rule the slayer cannot foresee this), nor for damages which the injured person clearly condones.

(b) For Bodily Injuries by Fornication or Adultery.--In case of fornication the offender owes restitution to the person seduced and also at times to the latter’s parents, and both sinners are bound to support their illegitimate child. The form of the compensation will depend much on circumstances, but in general it should be either marriage with the person seduced or some kind of pecuniary compensation. It should be noted that a promise to marry, even though it is canonically valid, gives no action to enforce marriage, but even an invalid engagement gives rise to action for unjust material damages, such as loss of chance to marry or loss of money spent in view of the marriage (see Canon 1017). In case of adultery the guilty party or parties are bound to make restitution to the injured husband if an illegitimate child is being reared at his expense, and also to the legitimate children for injuries to their strict rights, as in the diminished inheritance received from their parents on account of the illegitimate child. A child is not obliged to accept the word of his mother that he is illegitimate, but if he is certain about his illegitimacy, he may not take that to which he is not entitled. In restitution for fornication or adultery, care must be taken to preserve the good names of all the parties concerned.

(c) For Injuries of Soul.--In case of unjust and efficacious damage to physical goods (e.g., when one by fraud or force administers to another drugs or intoxicants that take away the use of reason or self-control, when a professor neglects his office of teaching or teaches error), restitution is certainly due for any material damages that result, and probably for the personal injury alone. In case of damage to spiritual goods, by inducement to commit sin or by dissuasion from good, restitution is due when the influence exerted was unjust (e.g., by fraud, force, threats), not when it was merely uncharitable (e.g., by advice, persuasion, request, example). Restitution for spiritual damage may be made negatively, that is, by removal of the unjust influence; but if a person who was seduced has in consequence become a hardened sinner, it seems that restitution should be made positively, that is, by counsels, requests, prayers to God, and other prudent means calculated to recall the injured party to a life of virtue.

Art. 4: THE VICES OPPOSED TO COMMUTATIVE AND DISTRIBUTIVE JUSTICE

(_Summa Theologica_, II-II, qq. 63-78.)

1804. The Vice Opposed to Distributive Justice.--Favoritism (i.e., acceptance of persons, partiality) is defined as “a species of injustice which moves one to distribute the common goods or burdens of society, not according to merit or fitness, but according to some other and impertinent standard.”

(a) The common goods include offices, honors, functions, while the common burdens include taxes, contributions, and penalties.

(b) The common goods of which we now speak are those that belong to society and that must be portioned out to its members justly. Hence, there is no question of goods that belong to private persons, which the owners are not obliged to give to others unless it be in virtue of charity or liberality. A rich man is not guilty of acceptance of persons, if he bestows his largesses on those who are less in need or less deserving, but more acceptable to himself; and God is not unjust when he gives unequal graces to those who are equally sinners (Matt., xx. 14, 15).

(c) The right standard of just distribution is merit or fitness, as when an applicant is appointed to the post of teacher or superior on account of good character and knowledge. Any other standard which leaves merit and fitness out of consideration is unjust, as when a public official selects for offices or honors, not those who have worked the hardest or who give the most promise, but those who have more money or who are related to himself.

1805. The Sinfulness of Favoritism from Revelation.--In Holy Scripture favoritism is reproved (“How long will you judge unjustly and accept the persons of the wicked?” Psalm lxxi. 2), and impartiality is praised (“Thou art a true speaker and teachest the way of God in truth, neither carest Thou for any man, for Thou dost not regard the person of man,” Matt., xxii. 16; “Masters, know that the Lord both of servants and you is in heaven, and there is no respect of persons with Him,” Eph., vi. 9). Distributive justice is commanded in many passages of Holy Writ (“Consider not the person of the poor, nor honor the countenance of the mighty; but judge thy neighbor according to justice,” Levit. xix. 15; “There shall be no difference of persons, you shall hear the little as well as the great, neither shall you respect any man’s person,” Deut., i. 17; “Thou shalt not accept persons nor gifts,” Deut., xvi. 19; cfr. James, ii. 1 sqq.).

1806. The Sinfulness of Favoritism from Reason.--Favoritism transgresses a divine command and substitutes personal will for right in the treatment of subjects by superiors. Hence, it is morally evil, for disobedience is sinful in the high as well as in the low, and violation of rights is unjust whether the rights be of the community or of the individual.

1807. The Gravity of the Sin of Favoritism.--(a) From its nature, favoritism is a mortal sin; for it is a form of injustice (see 1746), and indeed it is no less damaging than commutative injustice (e.g., theft) and is often accompanied by the latter. (b) From its matter and from the lack of deliberation or consent it may be venial. Thus, if favoritism is shown in a trifling matter (e.g., in conferring a post that is unremunerative and unimportant) or in a small degree (e.g., in preferring an applicant who is only slightly less worthy), there is only venial injustice.

1808. Distributive injustice is also frequently accompanied by commutative injustice.

(a) Thus, a first class of common goods that are distributed are those intended primarily for the common good, and only indirectly and secondarily for the good of individuals, such as public offices, dignities, and benefices. He who distributes these offices unfairly, by appointing unworthy persons, or by appointing the less worthy when he is under contract to appoint the more worthy, violates commutative justice and is held to restitution to the community; but the worthy or more worthy persons slighted had no strict right, and hence no restitution is due them, unless there was a compact with them or unjust means were used to exclude them (see 1755).

(b) A second class of common goods are those that are intended primarily for the benefit of individuals, such as a fund created for the relief of the destitute or afflicted or pensions set aside for those who have deserved well of society. He who distributes these goods unfairly is guilty of commutative injustice against private persons, since the goods were destined for them, and they had a right _ad rem_ to the goods, and hence to these persons restitution is owed.

1809. Favoritism in Spiritual Matters.--(a) Partiality in granting favors is sinful, and gravely so when the matter is serious. Examples are the grant to the unworthy of the power of Orders or of jurisdiction, the concession of permissions and dispensations to one’s friends that are denied to others. (b) Partiality in imposing burdens is also sinful, as when a prelate issues an onerous command, and grants exemption to his friends. But if the thing commanded is obligatory already by reason of law, it should be observed in spite of the favoritism of the prelate.

1810. Who is to be considered as more worthy for appointments in spiritual matters?

(a) The more worthy person is the one who will better serve the common good in the office. Hence, the more pious or the more learned man is not necessarily the more worthy, for another may have greater industry, influence, executive ability, initiative, prudence, experience, etc., and so be better suited to fill the position. But no person should be considered as worthy of spiritual offices unless his moral character is good, and excellence in temporal things does not compensate for negligence in spiritual matters.

(b) The more worthy person is the one who is more available when the appointment has to be made. Hence, the one who is better gifted for the office is not necessarily the more worthy, for another may be better known and it may be impossible to make investigations and comparisons at the moment.

1811. Opinion of the Applicant or Appointee about His Own Fitness.--(a) The applicant need not think that he is worthy or the most worthy; indeed, according to St. Thomas, it would be presumptuous for him to think so highly of himself, and he would thus become unworthy. It suffices, then, that the applicant have in mind only to try for the office, leaving the decision about fitness to the examiner or appointer.

(b) The acceptor who feels that he is unworthy or less worthy is not guilty of injustice; for he is not the judge of his own abilities and may rely on the judgment of those who appoint him. Moreover, he can trust to divine grace and his own efforts to make up for any deficiency or inferiority of which he is conscious. But it seems that, if the appointee were absolutely certain that his appointment was unjust, he would be bound to surrender his office, if this were possible.

1812. Favoritism in Secular Matters.--Do the conclusions in reference to ecclesiastical offices apply also to secular offices?

(a) In both cases distributive justice is violated by favoritism, for the standard followed is not merit or fitness, and thus the more worthy persons are injured. The opinion that civil society has dominion of public offices and therefore the right to distribute them at will, without regard to the merits or fitness of persons selected, is not probable; for civil rulers, like spiritual rulers, should consider themselves as ministers and dispensers only (I Cor., iv. 1), and even if they had dominion over offices, they would be bound to use that power for the benefit of the public for whom they rule.