Moral Theology Part 80

1749. Forms of Contract.--The chief forms of contract are the following:

(a) gratuitous contracts, which are those that confer advantage on only one of the contractants, or those in which no payment or compensation for his acts or goods is made to one party by the other party. They include unilateral contracts, which produce obligation on one side only (e.g., a promise, gift, testament), and bilateral contracts, which produce obligation on both sides. The bilateral contracts are also known as bailments, or understandings whereby a thing or business is transferred from one person to another in trust, on condition that a return will be made to the owner, They include the following contracts: loans, in which return must be made of the identical things borrowed (_commodatum_), or of a thing similar in kind (_mutuum_); deposit, in which a thing must be returned after safekeeping (_depositum_); an agency, in which one conducts the business of another with the obligation of making returns, either from express contract (_mandatum_) or from imputed agreement (_negotiorum gestio_). In _commodatum_ and _mutuum_ the advantage is had by the bailee, in the other three by the bailor;

(b) onerous contracts of certain event, which are those that confer an advantage on both parties, and in which the thing agreed on is certain and definite. They include contracts in which one party transfers owners.h.i.+p to the other (e.g., buying and selling, barter, loan at interest, contracts for annuities, stocks and bonds) or useful dominion (e.g., lease of property, contractor's agreement, hire of labor), and contracts in which both parties transfer rights to a moral person of which they are the members (partners.h.i.+p);

(c) onerous contracts of uncertain event, which are those that confer advantage on both parties, but in which the thing agreed on is contingent and uncertain. Examples are insurance, wager, gaming contracts, lottery, and stock market speculation;

(d) subsidiary contracts, which are those that are made in order to give security to princ.i.p.al contracts to which they are annexed or for whose sake they are made. Such are guaranty and surety, pledge and p.a.w.n, and mortgage.

1750. The Equality Sought by Commutative Justice.--The equality in quant.i.ty sought by commutative justice means that in involuntary transactions the offender must suffer a punishment equal to the injury he offered or must pay a recompense equal to the damage he caused, and that in voluntary transactions one must give the equal of what one receives. But this can be understood in two ways.

(a) Thus, equality may be taken for ident.i.ty in species, in the sense that the same kind of thing must be taken or returned (e.g., a life for a life, an eye for an eye, a tooth for a tooth). This kind of equality will do in some instances, as in cases of exchange of goods, but as a rule it would not be fair to both parties. Thus, if a subject strikes a ruler, he is not sufficiently punished if he receives the same kind of blow, for the injury to the ruler is greater on account of his office; when a man steals a cow or a sheep, he is not sufficiently punished if he restores what he took, for he would suffer no loss and the community whose peace he had offended would go without satisfaction (Exod., xxii.

1); if one gives one's cow for another's cow, or if a shoemaker trades his products for the clothes made by a tailor, the exchange may be unfair, since the thing given on one side may be better than that given on the other side.

(b) Equality may be understood as ident.i.ty in value, in the sense that the thing taken or returned has the same quant.i.ty of goodness or excellence as the thing received, no matter how they differ in species.

This kind of equality must be observed as a rule both in involuntary and voluntary transactions. Thus, for injury done to merchandise payment is made in money, or vice versa. If equality in value is not possible, because the good for which one owes is on a higher plane than the good which one is able to give, it seems that justice requires one to approximate equality as far as possible, and hence mayhem or defamation should be compensated for by the goods of fortune (see 1802 and 2090).

1751. Rest.i.tution.--Justice not only commands that one pay or give back what is due in voluntary transactions, but also that one repair injury which one has caused in involuntary transactions. But the four acts of payment, restoration, satisfaction, and rest.i.tution must not be confused.

(a) Thus, payment is the lawful bestowal by one person on another person of something of value in return for some other thing of value.

It is clear that payment differs from satisfaction and rest.i.tution, since it supposes no act of injustice done.

(b) Restoration is the return to another of his property of which one had just possession, as when a borrower gives back to the lender, or a depositee to the depositor. This also differs from satisfaction and rest.i.tution, since it is a voluntary transaction (see 1792, 1796).

1752. Differences between Satisfaction and Rest.i.tution.--(a) They differ as to their principle or cause, since satisfaction is due for injury to honor, rest.i.tution for injury to goods by unjust detention or unjust damage. Hence, a person who has dishonored another (e.g., by disrespect) is bound to satisfaction; a person who has injured another (e.g., by destroying his goods) is bound to rest.i.tution; a person who has both injured and dishonored another (e.g., by adding insults to robbery) is bound to rest.i.tution and satisfaction.

(b) Satisfaction and rest.i.tution differ as to their term or object, since satisfaction is chiefly concerned with the person to whom amends must be made (as by apology), while rest.i.tution is chiefly concerned with the thing which must be given back in itself or in its equivalent.

1753. When Rest.i.tution Is Due.--Rest.i.tution is the act by which one places another in renewed possession or owners.h.i.+p or chance of owners.h.i.+p of that which is owed to him because it is his by reason of a strict right _in re_ or _ad rem_; in other words, it restores the equality that existed before an injury was done to the goods of another.

(a) Thus, rest.i.tution is not due for violation of virtues other than justice, because these virtues are not concerned with strict obligations and rights. Repentance and satisfaction are due for all sins, but they are not the same thing as rest.i.tution. Hence, one is not bound to rest.i.tution if one refused to help with alms a person in extreme need, or if, not being obliged to it by office, one neglected to extinguish a fire or to prevent a robbery. These are sins against charity, not against justice.

(b) Rest.i.tution is not due for violations of virtues that pertain to justice but do not confer strict rights, and hence it is only a violation of commutative justice that entails the obligation of rest.i.tution. Thus, if one has been surly or ungrateful, no legal right has been violated and no rest.i.tution is due.

1754. Does Distributive Injustice Oblige to Rest.i.tution?--(a) If only distributive injustice is committed (e. g., if a parent gives his children all necessaries but shows special favor to those that are less deserving), there is no duty of rest.i.tution, for there is no strict claim to special favors. (b) If commutative injustice accompanies the distributive injustice (e.g., if a ruler acts against his agreement to give the best position to the person who pa.s.ses the best examination), there is a duty of rest.i.tution, for there is a strict claim to rights under contract.

1755. Distributive Justice and the Violation of Strict Rights.--Injustice in distribution is frequently accompanied by injustice in transaction on account of some strict right violated, and hence by reason of the latter injustice there will be a duty of rest.i.tution (see 1708, 1808).

(a) Thus, distributive injustice is accompanied by violation of a strict right of society when an unfair distribution is contrary to agreement made with the community (e.g., when one is appointed or paid especially to make fair distributions, or the law or contract expressly imposes this obligation), or when it causes harm to the community which one is bound _ex officio_ to prevent (e.g., when one appoints as public physician or surgeon a person who is entirely unfitted for the post).

(b) Distributive injustice is accompanied by violation of a strict right of an individual when it is against contract (e.g., when a person undertakes to select the best statue or portrait presented in a contest, but chooses one that is inferior), or when it inflicts loss on a private person (e.g., when a tax a.s.sessor requires more than is due from some persons, or an examiner admits to a school which receives only a limited number an unworthy candidate and thus excludes a worthy one, or a board rejects a worthy candidate as unworthy).

1756. Commutative Justice and Unfair Awards of Prizes.--Unfair awards of prizes in compet.i.tions are not violations of commutative justice unless the following conditions are present:

(a) the promise of award must be given as a contract binding in justice, for if the promisor intends only to bind himself in fidelity, the promisee obtains no strict right. Hence, an unfair distribution is not against commutative justice if a compet.i.tion has not the character of a real contest or of an onerous compact to reward the person who surpa.s.ses his rivals, but is rather an opportunity to compete for the free bounty of the promisor (e.g., if the organizer of an entertainment offers a prize for the prettiest baby), or an encouragement to useful industry (e.g., a first prize for the best garden in a neighborhood).

On the contrary, if the promise is part of an onerous contract, the promisor is bound in justice and the promisee obtains a strict right.

This is the case when the compet.i.tion has the character of a real contest, in which the contestants must undergo special labor, preparation, expense or trouble, etc., in order that the award be given to the most meritorious;

(b) the thing promised as subject of award must be the prize, and not merely a claim or right to be considered for the prize. Hence, if an examination is held in order that a number of worthy persons may be listed for future vacancies in offices or dignities, the person who pa.s.ses as most worthy has no strict right to be given an office or dignity, but only to be considered for it.

1757. Has a person who pa.s.ses as most worthy in an examination held in order to fill a vacant post a strict right to receive the post?

(a) According to the common opinion he has a strict right, because there is at least an implicit contract to the effect that the position will be given to the most worthy, since the examination is compet.i.tive.

(b) According to some authorities he has no strict right, because public positions are not to be regarded as rewards of merit, and the examination is not part of a contract but is only a means used by a superior to a.s.sist him in acting according to distributive justice.

Nevertheless, even in this opinion an unjust award is a sin, and at times a grave sin, against distributive justice, and may accidentally be joined with commutative injustice (see 1755).

(c) Under the civil service method, or merit system, of appointment, the appointing official is bound by law to observe the rules of the civil service commission. The usual procedure is for the commission to submit the names of the three persons highest on the examination list.

Position on the list is determined by compet.i.tive examination plus preferential points for veterans, experience in jobs, etc. (On the whole the preferential system does not seem to involve any injustice to those who do not receive the preference.) One of the three must be chosen for the first vacancy; for the second vacancy the remaining two, together with the next highest eligible, are proposed. Grave injustice against distributive justice would be done in not proceeding according to the legal method, and some degree of injustice might be done to an eligible who is illegally removed from a list, pa.s.sed over, etc. Of the three highest eligibles no one has a strict right to the vacant post, but solely the right to be seriously considered.

1758. What should be said of a superior who would promote undeserving persons to ecclesiastical benefices?

(a) As regards guilt, it is a mortal sin to confer a benefice on one who is unworthy, or even (when there is question of a benefice to which the care of souls is attached) on one who is less worthy (see Canon 459, 1).

(b) As regards rest.i.tution, there is an obligation of reparation to the community, when it is made to suffer loss, and of compensation to an individual who is pa.s.sed over in spite of his strict right (see three preceding paragraphs).

1759. The Obligation of Rest.i.tution.--(a) The obligation is both of natural and divine law. Reason itself dictates that everyone should receive his due, and revelation expressly commands rest.i.tution, as when it declares that he who has injured his neighbor's field or vineyard must restore according to the damage done (Exod., xxii. 5).

(b) The obligation is both of means and of precept, for without rest.i.tution the offender does not obtain pardon from G.o.d (Ezech., x.x.xiii. 13 sqq,; Tob., ii. 20 sqq.). Hence, one who has seriously injured his neighbor cannot be saved unless he actually makes rest.i.tution, if he is able, or intends to make rest.i.tution when possible, if here and now he is not able to do so. A debtor who makes no effort to make rest.i.tution (e.g., one who refuses to deny himself luxuries, to curtail his expenses, to leave rest.i.tution money in his will), cannot be said to have a sincere intention of fulfilling his duty. But it is not true that a person who dies in venial sin on account of rest.i.tution neglected must remain in Purgatory till all the rest.i.tution is made; for this would make the punishment depend on the negligence of the heirs or on accident.

(c) The obligation is grave if the damage (absolute or relative) and the fault were both grave, for rest.i.tution is an obligation of strict justice (see 1753); the obligation is light if both the damage and the fault were light, for the injury then is light.

1760. Duties of Confessors about the Obligation of Rest.i.tution.--(a) As to confession, the penitent is obliged to mention the number of sins committed against the duty of rest.i.tution, if there have been many acts of intention not to pay (see 202 sqq.); but as a rule those who have for a long time continued in sinful neglect of the duty of rest.i.tution have committed only one sin thereby, or else they do not apprehend their duty of mentioning the distinct internal acts, and hence confessors are advised not to question overmuch about this.

(b) As to absolution, the penitent lacks true contrition if he is under a serious obligation to make rest.i.tution and is wilfully opposed to the performance of this duty at all or at the proper time. Such a one may not be absolved. But the confessor should not admonish a penitent of the duty of rest.i.tution, if the penitent is in good faith and the admonition would only do harm. If the obligation of rest.i.tution is only light, absolution may not be refused, and prudence will often advise that no admonition about the obligation be given.

1761. There are a number of situations possible when damage done is grave and culpability slight.

(a) Thus, the damage may be entirely involuntary, as when the offender could not foresee it and did not wish it (e.g., Semp.r.o.nius commits a venial sin by speaking harshly to Claudius, whom he likes, but the latter is so depressed at this that he commits suicide). In this case there is clearly no obligation of rest.i.tution.

(b) The damage may be voluntary only interpretatively, as when the offender could not foresee it, but would have willed it had he foreseen it (e.g., Semp.r.o.nius is glad when he learns that Claudius committed suicide, but would be much surprised if he knew that a harsh word of his caused it). In this case according to some there is a grave duty of rest.i.tution, because internal guilt and external damage are present; but others, with greater probability, deny the duty of rest.i.tution, for the damage was not caused by the internal sin of hate, which is not effective of itself, nor by the external harsh word, which was an occasion rather than a cause (see 1447, 1763).

(c) The damage may be voluntary directly, as when the offender wills it in itself (e.g., t.i.tus steals a considerable sum from Balbus, but he is invincibly ignorant and thinks that the wealth of Balbus makes the sin only venial), or the damage done is voluntary indirectly (e.g., Caius is guilty of slight carelessness in guarding his cattle, and they get into a neighbor's garden and cause great damage to crops; Caius foresaw some damage, but he could not have foreseen the actual grave damage that was done). About these cases there are various opinions, which will be given in 1765.

1762. The Roots of Rest.i.tution.--The roots or sources of rest.i.tution are usually reduced to two, according to the following two general kinds of injury inflicted on others:

(a) unjust damage, which is the loss inflicted, on the goods of another, without advantage to the offender, as in murder or incendiarism;

(b) unjust possession, which is the loss inflicted on another by the possession of his goods without his consent or against his will, to the advantage of the offender, as when a murderer steals from his victim, or an incendiary gets the insurance from the house he destroyed.

1763. Unjust damage that obliges to rest.i.tution is only an act (or omission) that is both injurious (being a guilty violation of another's strict right) and productive of loss. Hence the following conditions:

(a) the act must be objectively unjust, a contravention of a strict right _in re_ or _ad rem_ (see 1695 sqq.), for example, stealing or keeping back the wages due an employee. But it is objectively unjust to deprive another of a non-strict right (e.g., the right of a beggar to an alms) by unjust means, such as force, fraud, calumny, etc. If a neighbor is not hindered from his strict right and unfair means are not employed, there is no objective injustice (e.g., when a merchant improves his place of business and thus draws away customers from a rival merchant);

(b) the act must be efficaciously unjust or the true cause of the loss which another suffers, for one is not responsible for what does not proceed from one's act. An act is not efficaciously unjust, therefore, if it is only the occasion of damage (e.g., t.i.tus steals and Balbus imitates him; Claudius steals, and on account of circ.u.mstantial evidence not arranged by Claudius, Semp.r.o.nius is arrested and sentenced to prison), or if it is only a _conditio sine qua non_ (e.g., Caius gives whisky to Julius, who needs its stimulation to nerve himself for a crime), or if it is only an accidental cause (e.g., t.i.tus steals a small sum of money from a miser, and the latter, to the great surprise of t.i.tus, becomes insane);

(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 G.o.d (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 pa.s.sion (e.g., great fear or anger) may make an injurious act unintentional and so take away natural liability for rest.i.tution (see 40 sqq.), but the civil law does not always admit the excuse, and after sentence the offender is bound to pay.