Restitution

RESTITUTION. - It is the reinstatement into the state (above all patrimonial) in which one would be, had certain unjust acts or attitudes not been committed or allowed by others.

I. THE OBLIGATION

The generic obligation of restitution already derives from the duty to accept the consequences of one's own acts. Whoever has done something that he ought to have 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. By the term repentance or contrition is indicated the cancellation, as far as possible, of the action in itself, and by the corresponding term restitution 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 indicated, it is even required to give back 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 - if one excludes Rom. 13:7 (Reddite ergo omnibus debita) - explicit affirmation of the obligation of restitution. However, Zacchaeus restores fourfold what he had unjustly taken (Lk. 19:2 ff.).

2. Patristic sources

It will suffice to recall St. Augustine in the 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 passed into the Decretum of Gratian (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 legislations. The Italian Code, for example, states at art. 2043: « Qualunque fatto doloso o colposo, che cagiona ad altri un danno ingiusto, obbliga colui che ha commesso il fatto a risarcire il danno ».

II. THE CONDITIONS FOR THE OBLIGATION

1. The damage

That is, a genuine diminution of goods and in particular a genuine diminution of patrimony. If this has not occurred, there may be room for repentance or even for a criminal conviction, but not for restitution in the proper sense. Indeed, the violation of a juridical precept that causes no damage to others may possibly be 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 (by destruction of goods or by mere removal of them, whether to the advantage of the one who takes them away, or to the advantage of others, or to the advantage of no one, whether by lucrum cessans or by damnum emergens, etc.); it is enough that the damage truly occurred.

2. Causal relation

Furthermore, the damage must have been truly caused by the subject in question, and it is not enough that the subject was the occasion or condition (even a sine qua non). The moralists show some uncertainty here, when the damage follows only occasionally, while the action was performed with the precise intention of doing harm (cf. A. Vermeersch, Theol. mor. principia, responsa, consilia... II, Rome 1924, n. 583). It is not always easy to determine in individual cases whether there was a relation of causality or only of occasion or of condition. But the difficulties of application must not obscure the clarity of the principle or suppress its legitimacy. Usually the codes further determine the concept of subject, including also those persons or things which, by belonging to him or by being entrusted to his custody, participate in some way in his personality. Thus the Italian Civil Code obliges in certain cases the compensation of damages produced even by minors and by animals. Art. 2048, for example, establishes that "the father and the mother, or the guardian, are responsible for the damage caused by the unlawful act of minor children not emancipated or of persons subject to guardianship who live with them... Instructors and those who teach a trade or an art are responsible for the damage caused by the unlawful act of their pupils and apprentices during the time in which they are under their supervision...". And art. 2052 adds that "the owner of an animal or whoever makes use of it for the time in which he has it in use, is responsible for the damages caused by the animal; whether it was under his custody, or had strayed or fled, unless he proves fortuitous event".

3. Injustice of the damage

Finally, the damage must have been caused unjustly, that is, by conduct that one did not have the right to adopt. There is instead no obligation of restitution when the damage was caused in the exercise of one's duty (for example, the officer 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, brings about 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 states that "whoever causes damage in legitimate defense of himself or of others is not responsible". It is well known, however, that the violation of the moral order can occur on a purely subjective plane (as in the case of one who ardently desires to take possession of another's property or to cause serious harm to an adversary, but does not put his desire into practice) or on a purely objective plane (as in the case of one who, without knowing it, carries off another's thing or, without intending it, causes damage to others) or on a plane both subjective and objective (as in the case of one who, knowing and willing, steals from others or causes them 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 both sinful and unjust. In the first case the damage is lacking, that is, the first condition recalled above. For the other cases, in order for there to be any question of the obligation to restitute, is it required that the damaging action be also subjectively unjust, or is it enough that it be only objectively so? In other words: is a theological fault necessary, or is a juridical fault enough, for one to be bound to compensation for the damage? According to the moralists, the obligation to repair exists only for damage caused knowingly and freely (cf. B. Merkelbach, Sum. Theol., II, Paris 1947, nn. 289, 292).

Highly significant and illuminating in this regard is the answer that was given for a long time - and is still found in some authors (for example, J. D'Annibale, Summula, II, Rome 1908, n. 232; E. Jone, Compendio di teologia morale, Turin-Rome 1949, n. 349) - to the question whether one who damages another by mistake is bound to restitution; or, more precisely, one who out of hatred for his enemy wants to destroy his house, and, by mistake, sets fire instead to the house of another. The moralists answer that he is not bound to compensate the damages caused to the latter, because the damage was merely accidental, not voluntary (cf. St. Alphonsus, Theol. mor., III, n. 629, ed. L. Gaudé, II, Rome 1907, p. 108 ff.; J. B. Ferreres, Caus conscientiae, I, 2nd ed., Barcelona 1898, n. 646). The most these moralists concede is the obligation to restitute post sententiam iudicii, quia tunc iustae sententiae in conscientia parendum est" (Serafino da Loiano, Institutiones theol. moral., III, Turin 1937, n. 104, 2). Civil legislations, on the other hand, adhere by preference to the objective plane. Not only any deliberate act, but also any negligent act (that is, an act that occurs outside the will of the agent, by reason of negligence or imprudence or lack of skill, or by non-observance of laws, regulations, orders or disciplines) according to our code (art. 2043) "obliges whoever committed the act to compensate the damage". The two currents seem to meet only in the obligation of restitution of what one holds unduly and without fault. Res clamat domino, fructificat domino. Nemo potest ex re aliena ditari, repeat the moralists. And the Italian Civil Code: "Whoever, without a 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 patrimony. If the enrichment has as its object a determinate thing, the one who received it is bound to restore it in kind, if it exists, at the time of the claim" (art. 2041). The moralists have in view above all the internal forum, the civilists the external; but some concession can and perhaps must be made by each of the two sides.

It would seem much better to place also upon the involuntary author a share of the harmful consequences of acts that another has caused only involuntarily. Some provisions of the civil codes are perhaps moving in this direction. For example, in art. 2045 of the Italian civil law it is said that "when whoever has committed the damaging act was constrained by the necessity of saving himself or others from the present danger of a grave harm to the person... an indemnity is owed to the damaged party, the measure of which is left to the equitable appreciation of the judge"; and in art. 2047, with regard to damage caused by an incapacitated person, it is stated that "in the case in which the damaged party could not obtain compensation from whoever is bound to supervision, the judge, in consideration of the economic conditions of the parties, may condemn the author of the damage to an equitable indemnity".

One may therefore conclude: the third condition for it to be possible to speak of the obligation of r. is that the damage must have been caused unjustly; if the responsibility is also subjective (or, as moralists say, theological), the obligation will be to repair the entire damage; if instead it is only objective (or juridical), juridically the obligation is to repair the entire damage, while morally the question is still debated; probably there exists at least the obligation to repair a part of the damage, according to the condition of the one causing the damage and of the one suffering it and the degree of responsibility of the former toward the latter, reconciling the demands of justice with those of charity.

It is evident, moreover, that the three conditions indicated — existence of the damage, causal relationship and responsibility of the subject — must exist simultaneously and combine to establish the gravity of the obligation of r. It is not enough that there be the damage, or the causal relationship, or the responsibility of the subject; nor is it enough, to give rise to a grave obligation of r., that the damage be grave, nor that the responsibility be grave, nor that the causal relationship be strong; it is necessary that all three conditions exist simultaneously and to a notable degree. The lightness of the obligation can therefore derive as much from the lightness of the matter as from the lightness of the responsibility, or from the causal relationship.

III. CONCRETIZATION OF THE OBLIGATION OF RESTITUTION

In the considerations made thus far the answer is already implicit to certain questions on which moralists dwell at length with concerns more casuistic than systematic: 1. Who must make restitution: to restitution is bound whoever has unjustly caused the damage, or whoever has been unjustly enriched, taking care, however, not to stop at the mere physical entity of the one causing the damage; it has already been seen that the civil codes, including our own, greatly broaden the notion of subject, extending it to his property and to the persons entrusted to his care. 2. To whom restitution must be made: restitution must be made to whoever has unjustly suffered damage, taking care here too not to stop at the mere physical entity of the injured party; for heirs in some way form a single thing with him and can truly be said to be injured by everything that injures the de cuius. 3. What must be restored: according to the moralists only the damage foreseen and freely willed must be repaired; according to civil legislations, on the other hand, all the damage that has been caused at least through negligence must be repaired. In particular, when it is a matter of goods that have been possessed in good faith and still remain, there is the obligation to restore them in full. For the acquisition of fruits, the reimbursement of expenses for the production and harvesting of fruits, as well as repairs and improvements, see arts. 1149-50 of the Civil Code (v. also FRUTTI; SPESE). 4. How to proceed when the injured party is unknown or has disappeared: the moralists answer at the first point that it must be given to the poor and to the Church, in order to prevent enrichment through an unlawful act and to repair the injury done to society (B. H. Merkelbach, op. cit., II, n. 322). Some, however, disagree, not seeing on the basis of what right this is commanded (Serafino da Loiano, op. cit., II, n. 106).

However the question may be resolved, it will be well to insist strongly that such donations be made especially for the benefit of those members of society who suffer most. This would serve, if nothing else, to give an effective content to the will to make restitution and to the desire not to enrich oneself without reason; at the same time it would make it possible to render truly operative the sense of human solidarity. As for things found, arts. 927-32 of the Italian Civil Code apply (v. the entry OCCUPAZIONE). 5. When one cannot restore in full, one restores as much as one can. It is evident in fact that impossibility excuses from the obligation of restitution as from any other obligation, but to the extent that the impossibility exists. This means that a temporary impossibility excuses temporarily; a partial impossibility excuses partially. A frequent application of these principles occurs in the case of bankruptcy (v.). 6. Whether one is bound to compensate in some way for a non-economic damage. The texts of the Old Testament cited at the beginning seem to suggest it. Roman law did not admit, for example, the convertibility into money of a physical injury inflicted on a citizen, cum liberum corpus aestimationem non recipiat. The 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 away of economic goods, one must insist on restitution in the ways possible (De iure et iustitia, d. 10 art. 11, 1st Lyon ed., t. VII, Lyon 1864, pp. 268-69). St. Alphonsus, on the other hand, is of the opposite opinion, 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 ff.). In Italian legislation the question was decided in 1930 for damage caused by crimes and in 1942 for damage caused by other causes. In fact art. 185 of the Italian Penal Code of 1930 says that "every crime that has caused a patrimonial or non-patrimonial damage obliges the guilty party and the persons who according to the civil laws must answer for his act to make compensation"; and art. 2059 of the Civil Code of 1942 asserts that "non-patrimonial damage must be compensated only in the 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: one does not see, in such cases, why all the damage should be charged to one party alone, completely freeing the other. Very wise therefore is art. 2045 of the code, already cited, in which it is established that "when whoever has committed the harmful act was constrained to do so by the necessity of saving himself or others from the present danger of a grave harm to the person, and the danger was not voluntarily caused by him, nor was it otherwise avoidable, an indemnity is owed to the injured party, the measure of which is left to the equitable appreciation of the judge." 8. One is dispensed from the obligation of restitution, first of all when the obligation properly does not exist, that is, when there is lacking a true and proper damage, or at least an unjust damage, or at least a true and proper causal relationship; then when there is a physical or moral impossibility; however, such impossibility excuses to the extent that it truly exists and for the time in which it actually exists; finally, remission (v.) freely made by the injured party himself or by those who take his place excuses from the obligation of restitution. In that case the injured party renounces his right; nor does it matter whether he does so lawfully or unlawfully: whoever freely remits effectively divests himself of his own right, even if, in doing so, he sins.

It is well known, moreover, that the moralists have forcefully affirmed the obligation of restitution when the justice called commutative is violated; they have not done so with equal force, indeed they commonly deny it, when legal or distributive justice is violated (V. GIUSTIZIA).

Insufficient development has likewise had thus far the question of compensation for damage among nations. The principle and practice of exacting various contributions from the vanquished are as ancient as humanity. Often, however, it was done by title of victory and not of compensation 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 has unjustly suffered damages) who imposed on the vanquished the obligation of compensation, determining its extent and forms. Thus it happened in the aftermath of the Napoleonic wars; thus it happened in the Treaty of Frankfurt in 1871, in that of Versailles after the First World War and in those that closed the recent conflict. Quite a lot therefore remains still to be done in the matter of restitution so that the law 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

(for example, the restitution of a sum received as a loan, of an object received for an occasion or a need, etc.); b) the act by which one gives back to someone what has been taken from him (for example, the restitution of a stolen object); c) the act or acts by which one restores someone to the situation etc. that would exist if certain facts had not occurred. It is in this last sense that the term restitution has been taken.

Giovanni Battista Guzzetti