Summa Theologica Part III (Secunda Secundae) Part 102

Whether Rest.i.tution Must Always Be Made to the Person from Whom a Thing Has Been Taken?

Objection 1: It would seem that rest.i.tution need not always be made to the person from whom a thing has been taken. For it is not lawful to injure anyone. Now it would sometimes be injurious to the man himself, or to others, were one to restore to him what has been taken from him; if, for instance, one were to return a madman his sword.

Therefore rest.i.tution need not always be made to the person from whom a thing has been taken.

Obj. 2: Further, if a man has given a thing unlawfully, he does not deserve to recover it. Now sometimes a man gives unlawfully that which another accepts unlawfully, as in the case of the giver and receiver who are guilty of simony. Therefore it is not always necessary to make rest.i.tution to the person from whom one has taken something.

Obj. 3: Further, no man is bound to do what is impossible. Now it is sometimes impossible to make rest.i.tution to the person from whom a thing has been taken, either because he is dead, or because he is too far away, or because he is unknown to us. Therefore rest.i.tution need not always be made to the person from whom a thing has been taken.

Obj. 4: Further, we owe more compensation to one from whom we have received a greater favor. Now we have received greater favors from others (our parents for instance) than from a lender or depositor.

Therefore sometimes we ought to succor some other person rather than make rest.i.tution to one from whom we have taken something.

Obj. 5: Further, it is useless to restore a thing which reverts to the restorer by being restored. Now if a prelate has unjustly taken something from the Church and makes rest.i.tution to the Church, it reverts into his hands, since he is the guardian of the Church's property. Therefore he ought not to restore to the Church from whom he has taken: and so rest.i.tution should not always be made to the person from whom something has been taken away.

_On the contrary,_ It is written (Rom. 13:7): "Render ... to all men their dues; tribute to whom tribute is due, custom to whom custom."

_I answer that,_ Rest.i.tution re-establishes the equality of commutative justice, which equality consists in the equalizing of thing to thing, as stated above (A. 2; Q. 58, A. 10). Now this equalizing of things is impossible, unless he that has less than his due receive what is lacking to him: and for this to be done, rest.i.tution must be made to the person from whom a thing has been taken.

Reply Obj. 1: When the thing to be restored appears to be grievously injurious to the person to whom it is to be restored, or to some other, it should not be restored to him there and then, because rest.i.tution is directed to the good of the person to whom it is made, since all possessions come under the head of the useful. Yet he who retains another's property must not appropriate it, but must either reserve it, that he may restore it at a fitting time, or hand it over to another to keep it more securely.

Reply Obj. 2: A person may give a thing unlawfully in two ways. First through the giving itself being illicit and against the law, as is the case when a man gives a thing simoniacally. Such a man deserves to lose what he gave, wherefore rest.i.tution should not be made to him: and, since the receiver acted against the law in receiving, he must not retain the price, but must use it for some pious object.

Secondly a man gives unlawfully, through giving for an unlawful purpose, albeit the giving itself is not unlawful, as when a woman receives payment for fornication: wherefore she may keep what she has received. If, however, she has extorted overmuch by fraud or deceit, she would be bound to rest.i.tution.

Reply Obj. 3: If the person to whom rest.i.tution is due is unknown altogether, rest.i.tution must be made as far as possible, for instance by giving an alms for his spiritual welfare (whether he be dead or living): but not without previously making a careful inquiry about his person. If the person to whom rest.i.tution is due be dead, rest.i.tution should be made to his heir, who is looked upon as one with him. If he be very far away, what is due to him should be sent to him, especially if it be of great value and can easily be sent: else it should be deposited in a safe place to be kept for him, and the owner should be advised of the fact.

Reply Obj. 4: A man is bound, out of his own property, to succor his parents, or those from whom he has received greater benefits; but he ought not to compensate a benefactor out of what belongs to others; and he would be doing this if he were to compensate one with what is due to another. Exception must be made in cases of extreme need, for then he could and should even take what belongs to another in order to succor a parent.

Reply Obj. 5: There are three ways in which a prelate can rob the Church of her property. First by laying hands on Church property which is committed, not to him but to another; for instance, if a bishop appropriates the property of the chapter. In such a case it is clear that he is bound to rest.i.tution, by handing it over to those who are its lawful owners. Secondly by transferring to another person (for instance a relative or a friend) Church property committed to himself: in which case he must make rest.i.tution to the Church, and have it under his own care, so as to hand it over to his successor.

Thirdly, a prelate may lay hands on Church property, merely in intention, when, to wit, he begins to have a mind to hold it as his own and not in the name of the Church: in which case he must make rest.i.tution by renouncing his intention.

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SIXTH ARTICLE [II-II, Q. 62, Art. 6]

Whether He That Has Taken a Thing Is Always Bound to Rest.i.tution?

Objection 1: It would seem that he who has taken a thing is not always bound to restore it. Rest.i.tution re-establishes the equality of justice, by taking away from him that has more and giving to him that has less. Now it happens sometimes that he who has taken that which belongs to another, no longer has it, through its having pa.s.sed into another's hands. Therefore it should be restored, not by the person that took it, but by the one that has it.

Obj. 2: Further, no man is bound to reveal his own crime. But by making rest.i.tution a man would sometimes reveal his crime, as in the case of theft. Therefore he that has taken a thing is not always bound to rest.i.tution.

Obj. 3: Further, the same thing should not be restored several times.

Now sometimes several persons take a thing at the same time, and one of them restores it in its entirety. Therefore he that takes a thing is not always bound to rest.i.tution.

_On the contrary,_ He that has sinned is bound to satisfaction. Now rest.i.tution belongs to satisfaction. Therefore he that has taken a thing is bound to restore it.

_I answer that,_ With regard to a man who has taken another's property, two points must be considered: the thing taken, and the taking. By reason of the thing taken, he is bound to restore it as long as he has it in his possession, since the thing that he has in addition to what is his, should be taken away from him, and given to him who lacks it according to the form of commutative justice. On the other hand, the taking of the thing that is another's property, may be threefold. For sometimes it is injurious, i.e. against the will of the owner, as in theft and robbery: in which case the thief is bound to rest.i.tution not only by reason of the thing, but also by reason of the injurious action, even though the thing is no longer in his possession. For just as a man who strikes another, though he gain nothing thereby, is bound to compensate the injured person, so too he that is guilty of theft or robbery, is bound to make compensation for the loss incurred, although he be no better off; and in addition he must be punished for the injustice committed. Secondly, a man takes another's property for his own profit but without committing an injury, i.e. with the consent of the owner, as in the case of a loan: and then, the taker is bound to rest.i.tution, not only by reason of the thing, but also by reason of the taking, even if he has lost the thing: for he is bound to compensate the person who has done him a favor, and he would not be doing so if the latter were to lose thereby. Thirdly, a man takes another's property without injury to the latter or profit to himself, as in the case of a deposit; wherefore he that takes a thing thus, incurs no obligation on account of the taking, in fact by taking he grants a favor; but he is bound to rest.i.tution on account of the thing taken. Consequently if this thing be taken from him without any fault on his part, he is not bound to rest.i.tution, although he would be, if he were to lose the thing through a grievous fault on his part.

Reply Obj. 1: The chief end of rest.i.tution is, not that he who has more than his due may cease to have it, but that he who has less than his due may be compensated. Wherefore there is no place for rest.i.tution in those things which one man may receive from another without loss to the latter, as when a person takes a light from another's candle. Consequently although he that has taken something from another, may have ceased to have what he took, through having transferred it to another, yet since that other is deprived of what is his, both are bound to rest.i.tution, he that took the thing, on account of the injurious taking, and he that has it, on account of the thing.

Reply Obj. 2: Although a man is not bound to reveal his crime to other men, yet is he bound to reveal it to G.o.d in confession; and so he may make rest.i.tution of another's property through the priest to whom he confesses.

Reply Obj. 3: Since rest.i.tution is chiefly directed to the compensation for the loss incurred by the person from whom a thing has been taken unjustly, it stands to reason that when he has received sufficient compensation from one, the others are not bound to any further rest.i.tution in his regard: rather ought they to refund the person who has made rest.i.tution, who, nevertheless, may excuse them from so doing.

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SEVENTH ARTICLE [II-II, Q. 62, Art. 7]

Whether Rest.i.tution Is Binding on Those Who Have Not Taken?

Objection 1: It would seem that rest.i.tution is not binding on those who have not taken. For rest.i.tution is a punishment of the taker. Now none should be punished except the one who sinned. Therefore none are bound to rest.i.tution save the one who has taken.

Obj. 2: Further, justice does not bind one to increase another's property. Now if rest.i.tution were binding not only on the man who takes a thing but also on all those who cooperate with him in any way whatever, the person from whom the thing was taken would be the gainer, both because he would receive rest.i.tution many times over, and because sometimes a person cooperates towards a thing being taken away from someone, without its being taken away in effect. Therefore the others are not bound to rest.i.tution.

Obj. 3: Further, no man is bound to expose himself to danger, in order to safeguard another's property. Now sometimes a man would expose himself to the danger of death, were he to betray a thief, or withstand him. Therefore one is not bound to rest.i.tution, through not betraying or withstanding a thief.

_On the contrary,_ It is written (Rom. 1:32): "They who do such things are worthy of death, and not only they that do them, but also they that consent to them that do them." Therefore in like manner they that consent are bound to rest.i.tution.

_I answer that,_ As stated above (A. 6), a person is bound to rest.i.tution not only on account of someone else's property which he has taken, but also on account of the injurious taking. Hence whoever is cause of an unjust taking is bound to rest.i.tution. This happens in two ways, directly and indirectly. Directly, when a man induces another to take, and this in three ways. First, on the part of the taking, by moving a man to take, either by express command, counsel, or consent, or by praising a man for his courage in thieving.

Secondly, on the part of the taker, by giving him shelter or any other kind of a.s.sistance. Thirdly, on the part of the thing taken, by taking part in the theft or robbery, as a fellow evil-doer.

Indirectly, when a man does not prevent another from evil-doing (provided he be able and bound to prevent him), either by omitting the command or counsel which would hinder him from thieving or robbing, or by omitting to do what would have hindered him, or by sheltering him after the deed. All these are expressed as follows:

"By command, by counsel, by consent, by flattery, by receiving, by partic.i.p.ation, by silence, by not preventing, by not denouncing."

It must be observed, however, that in five of these cases the cooperator is always bound to rest.i.tution. First, in the case of command: because he that commands is the chief mover, wherefore he is bound to rest.i.tution princ.i.p.ally. Secondly, in the case of consent; namely of one without whose consent the robbery cannot take place.

Thirdly, in the case of receiving; when, to wit, a man is a receiver of thieves, and gives them a.s.sistance. Fourthly, in the case of partic.i.p.ation; when a man takes part in the theft and in the booty.

Fifthly, he who does not prevent the theft, whereas he is bound to do so; for instance, persons in authority who are bound to safeguard justice on earth, are bound to rest.i.tution, if by their neglect thieves prosper, because their salary is given to them in payment of their preserving justice here below.

In the other cases mentioned above, a man is not always bound to rest.i.tution: because counsel and flattery are not always the efficacious cause of robbery. Hence the counsellor or flatterer is bound to rest.i.tution, only when it may be judged with probability that the unjust taking resulted from such causes.

Reply Obj. 1: Not only is he bound to rest.i.tution who commits the sin, but also he who is in any way cause of the sin, whether by counselling, or by commanding, or in any other way whatever.

Reply Obj. 2: He is bound chiefly to rest.i.tution, who is the princ.i.p.al in the deed; first of all, the _commander;_ secondly, the _executor,_ and in due sequence, the others: yet so that, if one of them make rest.i.tution, another is not bound to make rest.i.tution to the same person. Yet those who are princ.i.p.als in the deed, and who took possession of the thing, are bound to compensate those who have already made rest.i.tution. When a man commands an unjust taking that does not follow, no rest.i.tution has to be made, since its end is chiefly to restore the property of the person who has been unjustly injured.

Reply Obj. 3: He that fails to denounce a thief or does not withstand or reprehend him is not always bound to rest.i.tution, but only when he is obliged, in virtue of his office, to do so: as in the case of earthly princes who do not incur any great danger thereby; for they are invested with public authority, in order that they may maintain justice.

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EIGHTH ARTICLE [II-II, Q. 62, Art. 8]

Whether a Man Is Bound to Immediate Rest.i.tution, or May He Put It Off?

Objection 1: It would seem that a man is not bound to immediate rest.i.tution, and can lawfully delay to restore. For affirmative precepts do not bind for always. Now the necessity of making rest.i.tution is binding through an affirmative precept. Therefore a man is not bound to immediate rest.i.tution.

Obj. 2: Further, no man is bound to do what is impossible. But it is sometimes impossible to make rest.i.tution at once. Therefore no man is bound to immediate rest.i.tution.

Obj. 3: Further, rest.i.tution is an act of virtue, viz. of justice.

Now time is one of the circ.u.mstances requisite for virtuous acts.

Since then the other circ.u.mstances are not determinate for acts of virtue, but are determinable according to the dictate of prudence, it seems that neither in rest.i.tution is there any fixed time, so that a man be bound to restore at once.

_On the contrary,_ All matters of rest.i.tution seem to come under one head. Now a man who hires the services of a wage-earner, must not delay compensation, as appears from Lev. 19:13, "The wages of him that hath been hired by thee shall not abide with thee until the morning." Therefore neither is it lawful, in other cases of rest.i.tution, to delay, and rest.i.tution should be made at once.

_I answer that,_ Even as it is a sin against justice to take another's property, so also is it to withhold it, since, to withhold the property of another against the owner's will, is to deprive him of the use of what belongs to him, and to do him an injury. Now it is clear that it is wrong to remain in sin even for a short time; and one is bound to renounce one's sin at once, according to Ecclus.