RESTITUTION. – It is the reintegration into the state (especially the patrimonial state) in which one would be if certain unjust acts or attitudes had not been committed or permitted by another.
I. THE OBLIGATION
The generic obligation of restitution already derives from the duty to assume the consequences of one’s own acts. Whoever has done something that ought to have been avoided is bound, as far as possible, to cancel out his action, both in itself and in the consequences it has had for himself and for others. The term *contrition* or *repentance* indicates the cancellation, as far as possible, of the action in itself, while the corresponding term *restitution* indicates the cancellation of the consequences that the action has had for others.1. Scriptural sources
In the Old Testament, see, for example, Ex. 22:1–3; Tob. 2:21; Ezek. 33:14–15. In the first two passages cited, one is even required to render something more than what was taken: *Si quis furatus fuerit boves, aut ovem, et occiderit vel vendiderit, quinque boves pro uno bove restituet. Si effringens fur domum sive suffodiens fuerit inventus et accepto vulnere mortuus fuerit, percussor non erit reus sanguinis*.... In the New Testament, there is no explicit affirmation of the obligation of restitution—apart from Rom. 13:7 (*Reddite ergo omnibus debita*)—though Zacchaeus restores what he had unjustly taken (Lk. 19:2 ff.).2. Patristic sources
It suffices to recall St. Augustine in his letter to Macedonius: *Si enim res aliena propter quam peccatum est, cum reddi potest, non redditur, paenitentia non agitur, sed fingitur; si autem veraciter agitur, non remittetur peccatum nisi restituatur ablatum; sed, ut dixi, cum restitui potest* (PL 33, 662). This principle passed into Gratian’s *Decretum* (c. 1, C. 14, q. 6) and became the noted *regula iuris*: *Non remittitur peccatum, nisi restituatur ablatum*.The principle recurs in all civil legislations. The Italian Civil Code, for example, in art. 2043, states: “Any wilful or culpable act that causes another unjust damage obliges the one who committed the act to compensate for the damage.”
II. THE CONDITIONS FOR THE OBLIGATION
3. The damage
That is, a true diminution of goods and, in particular, a true diminution of patrimony. If this has not occurred, one may speak of repentance or even of a penal condemnation, but not of restitution in the proper sense. The violation of a legal precept that does not cause damage to another may indeed constitute a crime, but never a civil wrong (*A. Trabucchi, Istituzioni di diritto civile*, 3rd ed., Padua 1947, p. 177). At this point, it is irrelevant how the damage was produced (whether by destruction of goods or by their simple removal, whether to the advantage of the one taking them, of another, or of no one, whether through lost profits or actual damage, etc.); it is enough that the damage truly occurred.4. Causal relation
Moreover, it is necessary that the damage was truly caused by the subject in question; it is not enough that the subject was merely the occasion or condition (even if sine qua non). Moralists show some uncertainty here when the damage follows only occasionally, while the action was performed with the precise intention to harm (*cf. A. Vermeersch, Theol. mor. principio, responsa, consilia...* II, Rome 1924, n. 583). It is not always easy in individual cases to determine whether there was a relation of causality or only of occasion or condition. But the difficulties of application should not obscure the clarity of the principle or suppress its legitimacy. Codes usually further define the concept of the subject, including also those persons or things that, by belonging to him or being entrusted to his custody, in some way partake of his personality. Thus the Italian Civil Code obliges in certain cases to compensate for damages caused even by minors and animals. Art. 2048, for example, states that “the father and mother, or the guardian, are liable for the damage caused by the illicit act of minor children not emancipated or of persons subject to guardianship who live with them.... Teachers and those who instruct in a trade or art are liable for the damage caused by the illicit act of their pupils and apprentices during the time they are under their supervision....” And art. 2052 adds that “the owner of an animal or whoever uses it for the time during which he has its use is liable for the damages caused by the animal, whether it was under his custody or had strayed or escaped, unless he proves the case was one of force majeure.”5. Injustice of the damage
Finally, it is necessary that the damage was caused unjustly, that is, by a conduct that one had no right to perform. There is no obligation of restitution, however, when the damage was caused in the exercise of one’s duty (for example, an agent who carries out a death sentence or a sentence of confiscation) or of one’s right (for example, an industrialist who, by launching a new product, causes the ruin of a competitor). In this sense it is said: *qui utitur iure suo nemini facit iniuriam*, and art. 2044 of the Italian Civil Code affirms that “one is not liable who causes damage in legitimate self-defence of oneself or another.” It is well known, however, that the violation of moral order can occur on a merely subjective plane (as in the case of one who ardently desires to take another’s goods or seriously harm an adversary but does not put the desire into practice) or on a merely objective plane (as in the case of one who, without knowing it, takes another’s property or, without intending to, causes damage to another) or on a plane that is both subjective and objective (as in the case of one who, knowing and willing, steals from another or causes him damage); in the first case there is a sinful action but not an unjust one; in the second case an unjust action but not a sinful one; in the third case an action that is both sinful and unjust. In the first case, the damage is lacking, that is, the first condition mentioned above. In the other cases, in order to speak of the obligation to restore, is it required that the damaging action be subjectively unjust, or is it enough that it be objectively so? In other words: is theological guilt necessary, or is juridical guilt sufficient, for one to be bound to compensate for the damage? According to moralists, the obligation to repair exists only for damage caused knowingly and freely (*cf. B. Merkelbach, Sum. Theol.*, II, Paris 1947, nn. 289, 292).Very significant and illuminating in this regard is the answer that has long been given—and is still found in some authors (e.g., J. D'Annibale, *Sum. mul.*, II, Rome 1908, n. 232; E. Jone, *Compendio di teologia morale*, Turin-Rome 1949, n. 349)—to the question whether one who damages another through error is bound to make restitution; or, more precisely, whether one who, out of hatred for his enemy, intends to destroy his house and, through error, instead sets fire to another’s house is bound to make restitution for the damage caused to the latter. Moralists respond that he is not bound to compensate the latter’s damages, because the harm was merely accidental, not voluntary (cf. St. Alphonsus, *Theol. mor.*, III, n. 629, ed. L. Gaudé, II, Rome 1907, pp. 108 ff.; J. B. Ferreres, *Causa conscientiae*, I, 2nd ed., Barcelona 1898, n. 646). The most that these moralists concede is an obligation to restore *post sententiam iudicis*, when one must then obey the just sentence in conscience” (Serafino da Loiano, *Institutiones theol. moral.*, III, Turin 1937, n. 104, 2).
Civil legislation, by contrast, generally adheres to the objective plane. Not only any deliberate act, but also any culpable act (i.e., an act occurring outside the agent’s will due to negligence, imprudence, incompetence, or failure to observe laws, regulations, orders, or discipline) obliges, according to our Civil Code (art. 2043), “whoever committed the act to compensate for the damage.” The two currents appear to converge only in the obligation to restore what one possesses unjustly and without fault. *Res clamat domino, fructificat domino*. *Nemo potest ex re aliena dicere*, repeat the moralists. And the Italian Civil Code states: “Whoever, without just cause, has enriched himself to the detriment of another person is bound, within the limits of the enrichment, to indemnify the latter for the corresponding decrease in assets. If the enrichment consists of a specific thing, the recipient is bound to return it in kind, if it still exists at the time of the claim” (art. 2041). Moralists have primarily the internal forum in view, jurists the external; yet some concession may—and perhaps should—be made by each side.
It would seem far better to impose even on the involuntary author some share of the harmful consequences of acts caused only involuntarily by others. Some provisions of civil codes appear to be moving in this direction. For example, Italian civil law, in art. 2045, states that “when the person who committed the harmful act was compelled by the necessity of saving himself or others from an actual danger of serious personal harm... the injured party is owed compensation, the measure of which is left to the equitable assessment of the judge”; and in art. 2047, regarding damage caused by an incapacitated person, it is affirmed that “if the injured party has been unable to obtain compensation from those responsible for supervision, the judge, considering the economic conditions of the parties, may condemn the author of the damage to an equitable indemnity.”
We may therefore conclude: a third condition for the obligation of restitution to arise is that the damage must have been caused unjustly. If responsibility is also subjective (or, as moralists say, theological), the obligation is to repair the entire damage; if, instead, it is merely objective (or juridical), juridically the obligation is to repair the entire damage, though morally the question remains debated; probably at least an obligation exists to repair part of the damage, according to the condition of the wrongdoer and the injured party and the degree of the former’s responsibility toward the latter, balancing the demands of justice with those of charity.
It is evident, moreover, that the three conditions indicated—external damage, causal relationship, and responsibility of the subject—must subsist simultaneously and together determine the gravity of the obligation of restitution. It is not enough that there be damage, or a causal relationship, or the subject’s responsibility; nor is it sufficient, for a grave obligation of restitution to arise, that the damage be grave, or the responsibility grave, or the causal relationship strong. It is necessary that all three conditions exist simultaneously and to a notable degree. The gravity of the obligation may thus derive from the gravity of the matter, the gravity of the responsibility, or the strength of the causal relationship.
III. CONCRETIZATION OF THE OBLIGATION OF RESTITUTION — In the considerations thus far, the answer to certain questions—on which moralists dwell at length with more casuistic than systematic concern—is already implicit:
1. **Who must restore:** The obligation of restitution falls on whoever unjustly caused the damage, or whoever unjustly enriched himself, though one must not limit attention to the physical entity of the wrongdoer alone; it has already been seen that civil codes, including our own, greatly broaden the notion of the subject, extending it to his property and to persons entrusted to his care.
2. **To whom restitution must be made:** Restitution must be made to whoever unjustly suffered damage, without limiting attention to the physical entity of the injured party alone; heirs, in fact, form in some way a unity with the deceased and may truly be said to be injured by anything that injures the *de cuius*.
3. **What must be restored:** According to moralists, only damage that was foreseen and freely willed must be repaired; according to civil legislation, however, everything that has been at least culpably caused must be repaired. In particular, when dealing with goods possessed in good faith and still remaining, there is an obligation to restore them in full. For the acquisition of fruits, reimbursement of expenses for production and harvest of fruits, as well as repairs and improvements, see Civil Code arts. 1149–50 (cf. also FRUTTI; SPESE).
4. **What to do when the injured party is unknown or missing:** Moralists respond at the first point that restitution should be made to the poor and to the Church, to prevent enrichment through illicit acts and to repair the injury done to society (B. H. Merkelbach, *op. cit.*, II, n. 322). Some, however, object, seeing no basis in law for such a command (Serafino da Loiano, *op. cit.*, II, n. 106).
However this question is resolved, it is well to insist strongly that such alms be given, especially for the benefit of those members of society who suffer most. This would, if nothing else, give real substance to the will to make restitution and to the desire not to enrich oneself without cause; at the same time, it would allow the sense of human solidarity to become truly operative. As for found objects, Civil Code arts. 927–32 apply (cf. the entry OCCUPAZIONE).
5. **When full restitution cannot be made, restitution is made to the extent possible.** It is evident that impossibility excuses
From the obligation of restitution as from any other obligation, however, to the extent that impossibility exists. This means that temporary impossibility excuses temporarily; partial impossibility excuses partially. A frequent application of these principles occurs in cases of bankruptcy (v.). 6. When one is obliged to compensate in some way for non-economic damage. The texts of the Old Testament cited at the outset seem to suggest this. Roman law did not admit, for example, the translation into money of physical injury inflicted upon a citizen, *cum liburnum corpus aestimationem non recipiat*. Moralists are not entirely in agreement. Billuart, for instance, argues that since an injury is cited in these cases that is more serious than the deprivation of economic goods, restitution should be insisted upon in whatever way possible (*De iure et iustitia*, d. 10 art. 11, 1st Lyon ed., vol. VII, Lyon 1864, pp. 268-69). St. Alphonsus, however, holds the opposite view, *quia iustitia commutativa obligat ad restituendum iuxta aequalitatem damni illati. Ubi autem restitutio facienda sit in genere diversa, nulla adest aequalitas, nec ulla erit umquam compensando damnii* (*Theologia moralis*, bk. 3, n. 627, cited ed., II, p. 105, 3°). In Italian legislation, the question was decided in 1950 for damage caused by crimes and in 1942 for damage caused by other causes. Indeed, article 185 of the 1930 Penal Code states that “every crime that has caused patrimonial or non-patrimonial damage obliges the guilty party and those who, according to civil laws, must answer for his act, to make restitution”; and article 2059 of the 1942 Civil Code asserts that “non-patrimonial damage must be compensated only in cases determined by law.” 7. As for damage caused not unjustly, it seems necessary to appeal to the solidaristic conception of Christianity and to distribute burdens and advantages equitably: in such cases, it is not clear why the entire damage should fall upon one party, completely freeing the other. Therefore, article 2045 of the aforementioned code is very wise, in which it is established that “when one who has committed a harmful act was compelled by the necessity of saving himself or others from the present danger of serious personal harm, and the danger was not caused voluntarily by him nor could otherwise be avoided, the injured party is owed compensation, the measure of which is left to the equitable assessment of the judge.” 8. One is dispensed from the obligation of restitution, first of all, when the obligation does not properly exist, that is, when there is no true damage, or at least no unjust damage, or at least no true causal relationship; then when there is physical or moral impossibility; however, such impossibility excuses to the extent that it truly exists and for the time that it actually persists; finally, the obligation of restitution is excused by the forgiveness (v.) freely granted by the injured party or by those acting in his place. In such a case, the injured party renounces his right; nor does it matter whether he does so lawfully or unlawfully: whoever freely forgives effectively divests himself of his right, even if, in doing so, he sins.
It is well known that moralists have strongly affirmed the obligation of restitution when commutative justice is violated; they have not done so with equal force, indeed they commonly deny it, when legal or distributive justice (v. INGIUSTIZIA) is violated.
Insufficient development has also been given thus far to the question of restitution of damage between nations. The principle is the practice of exacting various contributions from the defeated, which are as old as humanity. Often, however, it was done by title of victory and not of restitution for unjustly caused damages. In any case, it has always been the victor (who is not always necessarily to be identified with the one who unjustly suffered damages) who imposed upon the defeated the obligation of restitution, determining its extent and forms. Thus it occurred following the Napoleonic wars; thus it occurred in the Treaty of Frankfurt in 1871, in that of Versailles after the First World War, and in those that concluded the recent conflict. Much therefore remains to be done in the matter of restitution so that right may be observed and justice preserved. At this point, the meaning of the term restitution is clear. In it, one can indicate: a) the act by which one returns to another what one has received from him (e.g., restitution of a sum received in loan, of an object received for a service or need, etc.); b) the act by which one renders to another what has been taken from him (e.g., restitution of a stolen object); c) the act or acts by which one restores another to the situation in which he would have been had certain events not occurred. It is this last sense in which the term restitution has been taken.
Giovanni Battista Guzzetti