RESTITUTION. – It is the restoration to the condition (especially in terms of property) in which one would be if certain unjust acts or attitudes had not been committed or permitted by others.
I. THE OBLIGATION
The general obligation of r. already follows from the duty to assume the consequences of one’s own actions. Whoever has done something that he ought to have avoided is obliged, insofar as possible, to undo his action, both in itself and in the consequences it has had for himself and for others. The term repentance or contrition denotes the cancellation, insofar as possible, of the action in itself, while the corresponding term r. denotes 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; Ex. 33, 14-15. In the first two passages mentioned, one is actually required to return 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 statement of the obligation of r. — if Rom. 13, 7 (Reddite ergo omnibus debita) is excluded. Zacchaeus, however, returns four times what he had unjustly taken (Lc. 19, 2 ff.).2. Patristic sources
It will suffice to recall s. Agostinoin his letter to Macedonius: Si enim res aliena propter quam peccatum est, cum reddi potest, non redditur, paenitentia non agitur, sed fugitur; si autem veraciter agitur, non remittetur peccatum nisi restituatur ablatum; sed, ut dixi, cum restitui potest (PL 33, 662). The passage entered Gratian’s Decree (c. 1, C. 14, q. 6) and became the well-known regula iuris: Non remittitur peccatum, nisi restituatur ablatum.
The principle recurs in all civil legislation. The Italian Code, for example, states in art. 2043: « Any intentional or negligent act that causes another an unjust injury obliges the person who committed the act to compensate for the injury ».
II. THE CONDITIONS FOR THE OBLIGATION
3. The damage
That is, a real diminution of goods and, in particular, a real diminution of property. If this has not occurred, there may be grounds for repentance or even for a criminal conviction, but not for restitution in the proper sense. The violation, in fact, of a legal precept that causes no harm to another may possibly constitute a crime, butnever 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 (through the destruction of goods or through their mere removal, whether for the benefit of the person taking them away, for the benefit of others, for the benefit of no one, whether through lost profit or actual loss, etc.); it is enough that the damage truly occurred.
4. Causal relationship
It is also necessary that the damage really have been caused by the person in question; it is not enough that the person was merely the occasion or condition (even if a sine qua non). Here moralists show some uncertainty when the damage follows only occasionally, whereas the action was undertaken with the precise intention of causing harm (cf. A. Vermeersch, Theol. mor. principia, responsa, consilia... II, Rome 1924, no. 583). It is not always easy to determine in individual cases whether there was a causal relationship or merely one of occasion or condition. But the difficulties of application must not obscure the clarity of the principle or suppress its legitimacy. Ordinarily, the codes further define the concept of the responsible subject, including also those persons or things which, by belonging to him or by being entrusted to his custody, in some way partake of his personality. Thus the Italian Civil Code in certain cases requires compensation even for damage caused by minors and animals. Article 2048, for example, establishes that “the father and mother, or the guardian, are liable for damage caused by the unlawful act of their unemancipated minor children or of persons subject to their guardianship who live with them... Teachers and those who teach a trade or art are liable for damage caused by the unlawful act of their pupils and apprentices during the time in which they are under their supervision....” And Article 2052 adds that “the owner of an animal, or whoever uses it during the time in which he has it in use, is liable for damage caused by the animal, whether it was under his custody or had been lost or escaped, unless he proves that the event was fortuitous.”
5. Wrongfulness of the damage
Finally, it is necessary that the damage(Int. Alinari)
have been wrongfully caused, that is, through conduct which one had no right to undertake. There is no obligation of restitution, however, when the damage was caused in the exercise of one’s own duty (e.g., an officer executing a death sentence or a judgment of confiscation), or of one’s own right (e.g., an industrialist who, by launching a new product, causes the ruin of a competitor). In this sense it is said: qui vultur iure suo nemini facit iniuriam, and Article 2044 of the Italian Civil Code states that “one who causes damage in legitimate self-defense or in the defense of others is not liable.” It is known, however, that violation of the moral order may occur on a purely subjective level (as in the case of someone who ardently desires to take possession of another’s property or to seriously harm an adversary, but does not put his desire into practice), or on a purely objective level (as in the case of someone who, without knowing it, takes away another’s property or, without intending to, causes harm to another), or on a level that is both subjective and objective (as in the case of someone who knowingly and intentionally steals from another or causes him harm); in the first case there is a sinful but not wrongful action; in the second, a wrongful but not sinful action; in the third, an action that is both sinful and wrongful. In the first case the damage is lacking, that is, the first condition mentioned above. In the other cases, for there to be an obligation of restitution, must the damaging action also be subjectively wrongful, or is it enough that it be objectively wrongful? In other words: is theological fault necessary, or is juridical fault sufficient, for a person to be bound to compensate the damage? According to the moralists, there is an obligation to repair only damage caused knowingly and freely (cf. B. Merkelbach, Sum. Theol., II, Paris 1947, nos. 289, 292).
In this regard, the answer that was given for a long time—and is still found in some authors (e.g., J. D’Annibale, Summula, II, Rome 1908, no. 232; E. Jone, Compendio di teologia morale, Turin–Rome 1949, no. 349)—to the question whether a person who damages another by mistake is bound to restitution is highly significant and illuminating; or, more precisely, whether a person who, out of hatred for his enemy, wishes to destroy his house but, by mistake, sets fire instead to the house of another is so bound. The moralists reply that he is not bound to compensate the damage caused to the latter, because the damage was purely accidental and not voluntary (cf. s. Alfonso, Theol. mor., III, no. 629, ed. L. Gaudé, II, Rome 1907, pp. 108 ff.; J. B. Ferreres, Caus conscientiae, I, 2nd ed., Barcelona 1898, no. 646). The most that these moralists concede is the obligation to make restitution post sententiani iudicii, quia tunc iustae sententiae in conscientia parendum est” (Serafino da Loiano, Institutiones theol. moral., III, Turin 1937, no. 104, 2). Civil legislation, on the other hand, preferentially adheres to the objective level. According to our code (Article 2043), not only any intentional act, but also any negligent act (that is, an act occurring independently of the agent’s will, through negligence, imprudence, or lack of skill, or through failure to observe laws, regulations, orders, or rules of conduct) “obliges the person who committed the act to compensate the damage.” The two currents appear to converge only in the obligation to make restitution for what one possesses unduly and without fault. Res clamat domino, fructificat domino. Nemo potest ex re aliena difescere, the moralists repeat. And the Italian Civil Code: “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 diminution of property. If the enrichment concerns a specific thing, the person who received it is bound to return it in kind, if it still exists at the time of the claim” (Article 2041). The moralists have chiefly in view the internal forum, while civil jurists have the external forum in view; but some concession may, and perhaps must, be made by each of the two sides.
It would seem much better also to impose upon the involuntary perpetrator part of the harmful consequences of acts which another has caused only involuntarily. Some provisions of the civil codes may perhaps be moving in this direction. For example, Article 2045 of Italian civil law states that “when the person who committed the harmful act was compelled to do so by necessity in order to save himself or others from the present danger of serious harm to a person... the injured party is owed an indemnity, the amount of which is left to the equitable assessment of the judge”; and Article 2047, concerning damage caused by an incapacitated person, states that “if the injured party has been unable to obtain compensation from the person responsible for supervision, the judge, taking into consideration the financial circumstances of the parties, may order the perpetrator of the damage to pay equitable compensation.”
It may therefore be concluded: the third condition for one to speak of an obligation of r. is that the damage have been caused unjustly; if the responsibility is also subjective (or, as moral theologians say, theological), the obligation will be to repair the entire damage; if, on the other hand, it is merely objective (or juridical), juridically the obligation is to repair the entire damage, whereas morally the matter is still debated; there probably exists at least an obligation to repair part of the damage, according to the circumstances of the person causing and of the person suffering the damage, 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—the existence of damage, the causal relationship, and the responsibility of the subject—must subsist simultaneously and together determine the gravity of the obligation of r. It is not enough that there be damage, or a causal relationship, or responsibility on the part of the subject; nor is it enough, to give rise to a grave obligation of r., that the damage be grave, or that the responsibility be grave, or that the causal relationship be strong; it is necessary that all three conditions subsist simultaneously and to a considerable degree. The slightness of the obligation, therefore, may derive either from the slightness of the matter, from the slightness of the responsibility, or from the causal relationship.
III. CONCRETIZATION OF THE OBLIGATION OF R
The considerations made thus far already imply the answer to certain questions on which moralists dwell at considerable length, with concerns that are more casuistic than systematic: 1. Who must make restitution: the person who has unjustly caused the damage, or the person who has been unjustly enriched, is obliged to make restitution, taking care, however, not to stop at the merely physical entity of the person causing the damage; it has already been seen that the civil codes, including our own, greatly broaden the notion of the subject, extending it to his property and to the persons entrusted to his care. 2. To whom must restitution be made: restitution must be made to the person who has unjustly suffered damage, again taking care not to stop at the merely physical entity of the person harmed; heirs, in fact, in some way constitute one thing with him and may truly be said to be harmed by everything that harms the de cuius. 3. What must be restored: according to moralists, only damage foreseen and freely intended must be repaired; according to civil legislation, on the other hand, all damage that one has caused at least culpably must be repaired. In particular, when the matter concerns goods that have been possessed in good faith and still remain, there is an obligation to return them in their entirety. As regards the acquisition of fruits, reimbursement of the expenses for their production and harvesting, as well as repairs and improvements, see arts. 1149–50 of the Civil Code (v. FRUTTI; SPESE). 4. What to do when the injured party is unknown or has disappeared: to the first point, moralists reply that the property should be given to the poor and to the Church, in order to prevent enrichment through an unlawful act and to repair the injury inflicted upon society (B. H. Merkelbach, op. cit., II, n. 322). Some, however, dissent, seeing no basis in law for such a command (Serafino da Loiano, op. cit., II, n. 106).Whatever the solution to the question, it will be well to insist strongly that such gifts be made especially for the benefit of those members of society who suffer most. This would serve, if nothing else, to give effective substance to the will to make restitution and to the desire not to become enriched without cause; at the same time, it would make it possible to render the sense of human solidarity truly operative. As for things found, arts. 927–32 of the Italian Civil Code apply (v. OCCUPAZIONE). 5. When it is impossible to make restitution in full, as much as possible is restored. It is evident, in fact, that impossibility excuses one from the obligation of r., as from any other obligation, but only to the extent that the impossibility exists. This means that temporary impossibility excuses temporarily, and partial impossibility excuses partially. These principles are bankruptcy (v.). 6. Whether one is obliged in some way to compensate for non-economic damage. The Old Testament texts cited at the beginning seem to suggest this. Roman law did not admit, for example, that a physical injury inflicted upon a citizen could be translated into monetary terms, cum liberum corpus aestimationem non recipiat. Moralists are not entirely in agreement. Billuart, for example, maintains that, since in these cases too there has been an injury, more serious than the taking of economic goods, one must insist upon restitution by whatever means are possible (De iure et iustitia, d. 10 art. 11, 1ª ed. Lionese, t. VII, Lione 1864, pp. 268–69). S. Alfonso, on the other hand, holds the contrary view, quia iustitia commutativa obligat ad restituendum iuxta aequalitatem damni illati. Ubi autem restitutio facienda sit in genere diverso, nulla adest aequalitas, nec ulla erit umquam compensatio damni (Theol. moral., 1. 3, n. 627, ed. cit., II, p. 105 sgg.). In Italian legislation, the question was settled in 1930 for damage caused by criminal offences and in 1942 for damage caused by other causes. Indeed, art. 185 of the Italian Penal Code of 1930 states that « ogni reato che abbia cagionato un danno patrimoniale o non patrimoniale obbliga al risarcimento il colpevole e le persone che a norma delle leggi civili debbono rispondere per il fatto di lui »; and art. 2059 of the Civil Code of 1942 asserts that « il danno non patrimoniale deve essere risarcito solo nei casi determinati dalla legge ». 7. As for damage caused non-unjustly, it seems necessary to appeal to the Christian conception of solidarity and to distribute burdens and advantages equitably: in such cases, there seems to be no reason to place the entire burden of the damage upon only one party, completely freeing the other. Art. 2045 of the Code, already cited, is therefore very wise; it establishes that « quando chi ha compiuto il fatto dannoso vi è stato costretto dalla necessità di salvare sé o altri dal pericolo attuale di un danno grave alla persona, e il pericolo non è stato da lui volontariamente causato, né era altrimenti evitabile, al danneggiato è dovuta una indennità, la cui misura è rimessa all'equo apprezzamento del giudice ». 8. One is dispensed from the obligation of r., first of all when the obligation properly speaking does not exist, that is, when there is no real damage, or at least no unjust damage, or at least no genuine causal relationship; then when there is physical or moral impossibility; such impossibility, however, excuses only to the extent that it truly exists and for the period during which it actually exists; finally, condonation (v.) freely granted by the injured party himself or by the person acting in his place excuses one from the obligation of r. In such a case, the injured party renounces his right; nor does it matter whether he does so lawfully or unlawfully: whoever freely condones in fact divests himself of his own right, even if, in doing so, he sins.
It is also well known that moralists have strongly affirmed the obligation of r. when the justice called commutative is violated; they have not done so with equal force—in fact, they commonly deny it—when legal or distributive justice is violated (v. GIUSTIZIA).
The question of compensation for damage among nations has likewise received insufficient development to date. The principle and practice of exacting various contributions from the vanquished are as old as humanity. Often, however, this was done as a title to victory and not as compensation for unjustly caused damage. In any event, it has always been the victor (who cannot always necessarily be identified with the one who has unjustly suffered damage) who imposed upon the vanquished the obligation of compensation, determining its extent and forms. This occurred after the Napoleonic wars; it occurred in the Treaty of Frankfurt in 1871, in the Treaty of Versailles after the First World War, and in those that brought the recent conflict to an end. Much, therefore, still remains to be done in the matter of r. so that the law may be observed and justice preserved. At this point the meaning of the term r. is clear. It may denote: a) the act by which one returns to another what one has received from him (e.g., r. of a sum received as a loan, of an object received for a particular occasion or need, etc.); b) the act by which one gives back to someone what has been taken from him (e.g., r. of a stolen object); c) the act or acts by which one restores a person to the situation, etc., that would exist had certain events not occurred. This is the sense in which the term r. has been used.
Giovanni Battista Guzzetti