Of Restitution

Of Restitution — St. Thomas Aquinas asks: Whether restitution is an act of commutative justice?; Whether restitution of what has been taken away is necessary for salvation?; Whether it suffices to restore the exact amount taken?; Whether a man is bound to restore what he has not taken?; Whether restitution must always be made to the person from whom a thing has been taken?; Whether he that has taken a thing is always bound to restitution?; Whether restitution is binding on those who have not taken?; Whether a man is bound to immediate restitution, or may he put it off?.

We must now consider restitution, under which head there are eight points of inquiry:

Article 1: Whether restitution is an act of commutative justice?

Restitution is opposed to taking away. Now it is an act of commutative injustice to take away what belongs to another. Therefore to restore it is an act of that justice which directs commutations.

To restore is seemingly the same as to reinstate a person in the possession or dominion of his thing, so that in restitution we consider the equality of justice attending the payment of one thing for another, and this belongs to commutative justice. Hence restitution is an act of commutative justice, occasioned by one person having what belongs to another, either with his consent, for instance on loan or deposit, or against his will, as in robbery or theft.

Article 2: Whether restitution of what has been taken away is necessary for salvation?

Augustine says (Ep. ad Maced. cxliii): "Unless a man restore what he has purloined, his sin is not forgiven."

Restitution as stated above () is an act of commutative justice, and this demands a certain equality. Wherefore restitution denotes the return of the thing unjustly taken; since it is by giving it back that equality is reestablished. If, however, it be taken away justly, there will be equality, and so there will be no need for restitution, for justice consists in equality. Since therefore the safeguarding of justice is necessary for salvation, it follows that it is necessary for salvation to restore what has been taken unjustly.

Article 3: Whether it suffices to restore the exact amount taken?

Restitution re-establishes equality where an unjust taking has caused inequality. Now equality is restored by repaying the exact amount taken. Therefore there is no obligation to restore more than the exact amount taken.

When a man takes another's thing unjustly, two things must be considered. One is the inequality on the part of the thing, which inequality is sometimes void of injustice, as is the case in loans. The other is the sin of injustice, which is consistent with equality on the part of the thing, as when a person intends to use violence but fails.

As regards the first, the remedy is applied by making restitution, since thereby equality is re-established; and for this it is enough that a man restore just so much as he has belonging to another. But as regards the sin, the remedy is applied by punishment, the infliction of which belongs to the judge: and so, until a man is condemned by the judge, he is not bound to restore more than he took, but when once he is condemned, he is bound to pay the penalty.

Hence it is clear how to answer the First Objection: because this law fixes the punishment to be inflicted by the judge. Nor is this commandment to be kept now, because since the coming of Christ no man is bound to keep the judicial precepts, as stated above (). Nevertheless the same might be determined by human law, and then the same answer would apply.

Article 4: Whether a man is bound to restore what he has not taken?

Restitution belongs to justice, because it re-establishes equality. But if one were to restore what one did not take, there would not be equality. Therefore it is not just to make such a restitution.

Whoever brings a loss upon another person, seemingly, takes from him the amount of the loss, since, according to the Philosopher (Ethic. v, 4) loss is so called from a man having "less"* than his due. [*The derivation is more apparent in English than in Latin, where 'damnum' stands for 'loss,' and 'minus' for 'less.' Aristotle merely says that to have more than your own is called 'gain,' and to have less than you started with is called 'loss.'] Therefore a man is bound to make restitution according to the loss he has brought upon another.

Now a man suffers a loss in two ways. First, by being deprived of what he actually has; and a loss of this kind is always to be made good by repayment in equivalent: for instance if a man damnifies another by destroying his house he is bound to pay him the value of the house. Secondly, a man may damnify another by preventing him from obtaining what he was on the way to obtain. A loss of this kind need not be made good in equivalent; because to have a thing virtually is less than to have it actually, and to be on the way to obtain a thing is to have it merely virtually or potentially, and so were he to be indemnified by receiving the thing actually, he would be paid, not the exact value taken from him, but more, and this is not necessary for salvation, as stated above. However he is bound to make some compensation, according to the condition of persons and things.

From this we see how to answer the First and Second Objections: because the sower of the seed in the field, has the harvest, not actually but only virtually. In like manner he that has money has the profit not yet actually but only virtually: and both may be hindered in many ways.

Article 5: Whether restitution must always be made to the person from whom a thing has been taken?

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

Restitution re-establishes the equality of commutative justice, which equality consists in the equalizing of thing to thing, as stated above (; ). 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, restitution must be made to the person from whom a thing has been taken.

Article 6: Whether he that has taken a thing is always bound to restitution?

He that has sinned is bound to satisfaction. Now restitution belongs to satisfaction. Therefore he that has taken a thing is bound to restore it.

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 restitution 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 restitution, 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 restitution 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 restitution, although he would be, if he were to lose the thing through a grievous fault on his part.

Article 7: Whether restitution is binding on those who have not taken?

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 restitution.

As stated above (), a person is bound to restitution 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 restitution. 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 assistance. 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 participation, 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 restitution. First, in the case of command: because he that commands is the chief mover, wherefore he is bound to restitution principally. 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 assistance. Fourthly, in the case of participation; 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 restitution, 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 restitution: because counsel and flattery are not always the efficacious cause of robbery. Hence the counsellor or flatterer is bound to restitution, only when it may be judged with probability that the unjust taking resulted from such causes.

Article 8: Whether a man is bound to immediate restitution, or may he put it off?

All matters of restitution 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 restitution, to delay, and restitution should be made at once.

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. 21:2, "Flee from sin as from the face of a serpent." Consequently one is bound to immediate restitution, if possible, or to ask for a respite from the person who is empowered to grant the use of the thing.