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Restitution

An act of commutative justice by which exact reparation as far as possible is made for an injury that has been done to another

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* Published by Encyclopedia Press, 1913.


Restitution has a special sense in moral theology. It signifies an act of commutative justice by which exact reparation as far as possible is made for an injury that has been done to another. An injury may be done to another by detaining what is known to belong to him in strict justice and by willfully doing him damage in his property or reputation. As justice between man and man requires that what belongs to another should be rendered him, justice is violated by keeping from another against his reasonable will what belongs to him, and by willfully doing him damage in goods or reputation. Commutative justice therefore requires that restitution should be made whenever that virtue has been violated. This obligation is identical with that imposed by the Seventh Commandment, "Thou shalt not steal." For the obligation not to deprive another of what belongs to him is identical with that of not keeping from another what belongs to him. As theft is a grave sin of its own nature, so is the refusal to make restitution for injustice that has been committed.

Restitution signifies not any sort of reparation made for injury inflicted, but exact reparation as far as possible. Commutative justice requires that each one should have what belongs to him, not something else; and so that which was taken away must be restored as far as possible. If the property of another has been destroyed or damaged, the value of the dam-age done must be restored. Restitution therefore signifies reparation for an injury, and that reparation is made by restoring to the person injured what he had lost and thus putting him in his former position. Sometimes when an injury has been done it cannot be repaired in this way. A man who commits adultery with another's wife cannot make restitution to him in the strict sense. He has done his neighbor an injury which in a certain sense is irreparable. He should make what reparation he can. In this and similar cases it is a disputed point among theologians whether the adulterer is obliged to offer a money compensation for the injury. If he is convicted and sentenced to pay damages by lawful authority, he will certainly be bound to do so in conscience. But apart from such a sentence, he cannot be obliged to compensate the injured husband in money, because there is no common measure between such injuries and compensation in goods of another order.

Commutative justice looks at objective equality, and prescribes that it be preserved. For this reason Aristotle called this species of justice corrective, inasmuch as it corrects and remedies the inequality which an act of injustice produces between the injurer and the party injured. The one has less than he ought to have, because the other has taken it away, and they will not be quits until restitution is made. In cases where an injury is irreparable, the injurer will be bound to do what he can so that the injured party may be content. This is called making satisfaction, to distinguish it from making restitution in the strict sense. We are thus bound to make satisfaction to God for the injury which our sins do Him; we cannot make Him restitution, nor did He suffer damage on account of our sins. A violation of commutative justice alone imposes the obligation of making restitution, for when charity or obedience or any of the other virtues is violated, there is indeed a consequent obligation of repenting for the sin, but there is no obligation of performing the omitted act of charity or obedience now. The obligation was urgent at the particular time and in the particular circumstances in which the sin was committed. Now the need of relief which called for the act of charity, and the reason for the command which was disobeyed no longer exist, and so there is no reason for supplying now for the omitted acts.

The grounds on which restitution becomes obligatory are either the possession of something belonging to another, or the causing of unjust damage to the property or reputation of another. These are called by divines the roots of restitution, for it is due on one of those two grounds if it is due at all. The moral obligations of one who finds himself in possession of another person's property, and who on that account is bound to make restitution, will depend on whether he had possession of the property hitherto in good faith, or in bad faith, or in doubtful faith. If hitherto he thought in good faith that the property was his own, and he now discovers that it belongs to someone else, it will be sufficient to restore the property itself to the owner, together with any fruits that still remain. If while he was in good faith he consumed the fruits, or even the property itself perished, the possessor will not be bound to make restitution for what no longer exists. If the possessor consumed what he thought was his own property, possession in good faith justified him in doing so; and if the property has perished or been lost, the owner must bear the loss. But if possession was begun in bad faith, the possessor must not only restore all that remains of the property or of its fruits, but he must also compensate the owner for any loss or damage that the latter suffered on account of being deprived of his property. For the unjust possessor must make compensation for all the damage that he has caused the owner by unwarrantably retaining his property. If possession was begun in doubtful faith, inquiry as to title should first of all be made. In this way, or by the use of presumptions, the doubt may often be settled. If it cannot thus be settled the common opinion of divines is that restitution must be made to the doubtful owner of a portion of the property corresponding to the probability of his right, while the possessor may keep a portion corresponding to the probability of his title. A few recent theologians think that the possessor in such a case may keep possession of the property; provided that he is ready to hand it over to the true owner if and when the latter's title is proved. If the doubt about the title arises subsequently to the beginning of possession, inquiry should be made, and if the doubt cannot be solved, the possessor may keep the property, for in doubt the possessor has the better claim. Fruits, as a general rule, follow the property, on the principle: Accessorium sequitur principale.

The deliberate causing of unjust damage to the property, reputation, or other strict rights of another imposes on him who does the damage the obligation of making restitution for it, as we have seen. For, although in this case there is no possession of what belongs to another, still the wronged person has not what in justice he should have, and that through the unjust action of him who did the damage. The latter therefore has unjustly taken away what belonged to the former, and he must restore to him something which is equivalent to the loss which he has suffered and which will balance it, so that equality between them may be restored. However, as a man is not in conscience responsible for damage which he caused inadvertently and by accident, the action which caused the damage must be voluntary, with at least some confused foreknowledge of its probable effects, in order that an obligation in conscience may arise to make compensation for the damage caused. Even though in a particular case there was no theological fault of this kind, as it is called by divines, yet sometimes if the amount of diligence was not used which the law requires in the case, the law imposes the obligation of making compensation to the injured party. There is then said to be juridical fault, and after the sentence of a competent authority has imposed the obligation of making compensation, it will be matter of conscience to obey the sentence. Besides being voluntary, the injurious action must be against commutative justice in order that an obligation to make restitution may arise from it. If while exercising my own right, as by putting on the market a new patent machine, I cause loss to others, I do not offend against justice, nor am I bound to make compensation for the loss caused to others. Neither is one responsible for damage to others of which he was the mere occasion, not the cause. Thus if the arrival in a city of some great personage causes a crowd to gather, and there is a crush, and an accident, by which damage is done to persons and to property, the great personage is the occasion of the damage, not the cause; and he is not bound to make restitution for it.

The foregoing principles are applicable whenever a strict right of another has been violated. Not only when property rights, or reputation, have been injured, but when spiritual rights to innocence, or true doctrine, or religious vocation, or any others of mind or body, intrinsic to man's nature or extrinsic, have been unjustly violated, restitution as far as possible must be made. The efficacy of the confessional in bringing about restitution of ill-gotten property and the reparation of injuries of whatever sort is too well-known to need more than mention here.

T. SLATER


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