Palladium theologicum, Tomus quintus: De virtutibus

Who is bound to RESTORE.

CERTAIN rules are handed down by the Doctors, that what is sought may be recognized. The obligation of restoring arises from a threefold source. First, by reason of the mere acceptance of another's thing, even if perhaps you no longer have that thing. Secondly, by reason of another's thing alone, which you have in your keeping, even if perhaps you have not received it from its Owner. Thirdly, by reason of both, namely the acceptance and the thing. By the name of thing is understood the thing, either in itself, or as it remains in some fruit, or in the price, or in effect, e.g. the gain by which you have been made richer.

BY acceptance I understand, not that which is gratuitous, but that which has been made in commercial dealings, e.g. of sale, purchase, etc. related above in disp. priori quaest. 10.

IT IS PROVED. He is bound to restore who is the true cause that someone have less than he ought of his goods: Such a one is he: Therefore. So Caietanus under the word Restitutio, Valencia disp. 5. quaest. 6. puncto 3. Tannerus in the quaest. cited, Caspensis disp. 1. sect. 4, who distinguishes these roots of Restitution as arising from the thing, from the delict, and from the contract, and adds two others, which are reduced to these. The first is from a statute of law. The second from the will, e.g. from a testament. For if someone has bequeathed to me a thousand gold pieces, the heir is bound to render them to me. So also D. Bonavent. in confessionali, cap. 2. particula 6. et 15, and cap. 3. part. 44, and cap. 4. particula 2, where with other Doctors he includes under the title of unjust acceptance injuries, as burnings, devastations, etc.; so also in speculo animae, cap. 2, and de decem praeceptis, 7, and in Diaeta, tit. 3. cap. 6.

BEYOND the executor, the causes of acceptance of another's thing are commonly reckoned as nine with D. Thom. here, and D. Bonav. in confessionali, cap. 2. particula 19, in these verses.

Command, Counsel, Consent, Flattery, Recourse, The Mute, The Participant, The Not-hindering, The Not-revealing.

Of these the first six are positive, direct causes; the last three indirect, as Tannerus disput. 6. quaest. 4. dub. 14. num. 392 says, with the Holy Doctors.

THE ONE COMMANDING, or ordering, tacitly or expressly, is a true cause of the damage; if, however, he revoked the command before the damage, with the knowledge of the Mandatary, the latter is not bound to restore. So commonly in Bassaeus, V. Restitutio, 5. §. 1.

THE ONE GIVING counsel, or urging, asking, instructing. If he revoke his Counsel, etc., he does not seem to be bound to restitution any longer; although others say it is not enough merely to urge, but he must efficaciously withdraw it, as Bassaeus §. 2 relates.

HERE is reduced the one giving consent, if he is a cause of the damage, e.g. by giving a vote for an unjust war and other iniquities.

THE PALPO is one praising the crime and moving to it, or mocking, as if the one to be judged were sluggish, whence he is moved to vengeance like a buffalo. See Lessius lib. II. c. 13. num. 15; Regin. lib. X. num. 85; Petr. Nau. lib. III. cap. 4. num. 37; Azor 3. part. lib. IV. cap. 13; Filliucius tract. 32. num. 64; Sylvius cap. de Palpone; Bassaeus §. 4.

RECURSUS signifies the Receiver of stolen goods, etc., by fostering, protecting unto the damage, or retention, of another's thing. Thus Innkeepers receiving money stolen by sons of families, or servants; yet if they do not receive it as from a thief, but as from a friend, etc., then the Innkeeper is not bound to restore. See Bonacinus de restit. disput. 1. quaest. 2. punct. 2; Filliucius cit. num. 66. et 67; Bassaeus §. 5. Here the Holy Doctor includes those who foster brothels in their places of business, harlots and gamers in houses to which unwary youths fly as to snares, robbing those whom they have made steal, and bringing thence moneys and many precious things. These bloodsuckers will drink up the better portion of the blood of the innocent.

THE PARTICIPANT forthwith judges those plundered, and all cooperating in inflicting the damage; if, however, he is constrained by fear of the rope, by giving keys, holding the ladder, he seems immune from the debt of restitution; so also the Ergastula slaves of the Turks seem immune, forced to inflict damages upon us; but I do not agree that they are excused as to killings. See Suarez tract. 5. disp. 21. sect. 2.

THOSE who are co-causes of the same damage, e.g. a fire, are bound in solidum, l. Ita vulneratus, ff. ad Legem Aquiliam.

MANY assert that only he who is the true Cause of the Damage is subject to restitution, without whom the damage would not have been. Innoc. cap. sicut dignum, extra de homic.; Hostiensis there; Altissiodorensis lib. IV. tract. de Poenit. cap. de Restit. quaest. 3; Rich. 4. dist. 15. art. 5. quaest. 4; Sylvest. V. Restit. 3. quaest. 6; Adrian. 4. quaest. 4. de Restit. §. De concurrentibus cum fure; Nau. man. cap. 7. num. 20; Caspensis disp. 1. sect. 9. §. 2; Bassaeus V. Restit. 3. num. 3. §. 2. Because otherwise the causes would be inefficacious.

THE OPPOSITE is held by Caietanus here, art. 7; Ioan. Medin. quaest. 7. de Restit.; Sotus lib. IV. de iustit. quaest. 7. art. 3; Valencia disp. 5. quaest. 6. puncto 3. The reason is, because they operate efficaciously. This was the view of D. Bonavent. in spec. animae, cap. 2, and Clatius cap. 1. §. Damnificatio. Therefore the Advocate who unjustly defends a Client is bound to Restitution — otherwise, one who would still unjustly covet the inheritance, which he would invade by others if he did not otherwise obtain it.

IT IS PROVED from the Holy Doctor. That is a true cause, posited, the effect is posited, as the Holy Doctor and others say. For if many wished to kill Peter, would not one who alone killed him be guilty of injustice, even if he would have to be killed by the others? See Valencia, and Caietan.

THERE FOLLOW three others, namely the Silent one. He is called silent who ought to have spoken in order to prevent the damage. He can be bound either by office, as a Prelate, or by contract. I shall treat of these in the doubts below.

The SECOND is the Non-obstructor, when he ought to have obstructed, as Prince, Magistrate, and the like.

The THIRD is the Non-discloser of the one causing damage, when he was bound, as a witness in court, keepers of vineyards, woods, etc. Many doubts are raised about these.

TANNERUS disp. 4. quaest. 6. dub. 2. num. 72. requires three conditions for these persons to be bound to restitution. The first is that he was bound to procure such a good, or ward off such an evil, by a debt of Commutative or Distributive Justice. The second is that he was bound to procure it for that very person who has been damaged, whose cause he ought to have pleaded. The third is that the procuring of such a good was deliberately omitted, or omitted with proportionate fault. From this doctrine innumerable cases are resolved. See also Vasquez prim. 2. disp. 175. Lessius Lib. II. cap. 12. disput. 10. et 18.

WHETHER, THEREFORE, he who is the indirect cause of damage by not obstructing it, when he can and ought, is bound to restitution; many assert universally. So Angelus, and Cajetan in the summa, under the word Restitutio, Richard in 4. dist. 15. art. 5. quaest. 4. Valencia also, at the place cited, judges it probable.

OTHERS, however, as reported by Valencia, say he is bound only when he could and ought to have obstructed it out of justice; for instance, because he was Praetor, etc. So it seems D. Bonaventure holds in the Speculum, cap. 1. under the word Damnificatio, Sylvester V. Restitutio 3. Adrian IV, quaest. de Restitut. Soto Lib. 4. de Iustitia, quaest. 7. art. 3. Medina quaest. 9. de rebus restitutis. Alensis 4. part. quaest. 86. num 3. art. 4 §. 7. Altissiodor lib. 4. summae, tract. de poenitent. cap. de Restit. and almost Valencia; Bassaeus num. 15. citing Peter of Navarre lib. 3. cap. 4. numero 130. Lessius lib. 2. cap. 13. dub. 10. Bonacina disput. 1. quaest. 2. punct. 11. Azor 3. part. lib. 4. cap. 17. Fillucius tract. 32. num. 75. Sylvius 2. 2. quaest. 62. art. 4. quaestio 4. and art. 7.

As to the keeper of the gates of woods who connives at the carrying-off of timber, many, as reported by Diana part. 2. tract. 5. resol. 54, deny that they are bound to make good the losses inflicted.

THERE ARISES another question: Whether a Confessor, and others on whom the office of prohibiting unjust detentions rests, are bound to Restitution if they omit to admonish, etc. As to the Confessor, they affirm it: Summa Rosella, V. Restitutio 2. §. 5. Summa Angel. V. Restitutio, ultim. §. 5. Navarre in the Manuale, cap. 17. num. 22. and others as reported by Valencia disput. 5. quaest. 6. puncto 3. and Bonacina de restitut. disput. 1. quaest. 2. punct. 11. The same view is followed by Nunges in addit. ad 3. part. Tom. 2. quaest. 8. art. 4. dub. 5. Zanchus in the directorium confess. part. 2. praecepto 7. cap. 26. dub. 3. Gabriel in 4. dist. 15. quaest. 2. art. 3. Sylvester V. usura, 7. quaestio 2. and other Neoterics as reported by Diana Tom. 1. Tract. 16. resol. 1. Bassaeus num. 8.

The CONTRARY opinion is that of Bonacina and others as reported by him, Filliucius tom. 1. tract. 7. cap. 12. quaest. 7. num; 37. Lessius Lib. 2. cap. 10. dub. 6. Malderus 2. 2. tract. 5. cap. 3. dub. 24. Bartholomew of Saint Faustus in spec. confess. disp. 4. quaest. 121. num. 7. Aegid. Coninch. de Sacram. disp. 8. dub. 17. num. 144. Rebellius de oblig. iust. part. 2. lib. 17. quaest. ult. num. 12. and part. 1. Lib. 2. quaest. 14. sect. 8. num. 63. Diana limits this, provided the Confessor does not persuade the penitent not to make restitution. But the obligation to join restitution with not dissuading is one and the same. This indeed is taught also by Suarez tom. 4. in 3. part. disput. 32. sect. 6. and Rebellius at the place cited, Caspensis disp. 5. sect. 9. §. 1. num. 86. Sanchez Lib. 7. Decalogi, cap. 6. Tanner. disp. 4. quaest. 6. num. 75. referring to others, Bassaeus, V. Restit. 3. §. 7. num. 16. Crousers ad cap. 7. Reg. Min. lib. 31.

The opinion of D. Bonaventure, as I see, is this second one; for in the Confessionale, cap. 4, where he professes to teach confessors what they are bound to do, and what penalties they incur by omitting it, he says: Attendendum igitur, quod cum sint tria genera poenitentium, primis nulla potest iniungi poenitentia utilis ad salutem. Horum autem sunt sex genera. Primi raptores, Secundi usurarii, Tertii incendiarii, Quarti fures, Quinti Simoniaci, Sexti dolosi circumventores, ut sunt perversi Iudices, advocati iniqui, testes falsi, negotiatores fraudulenti, et alii huiusmodi, quibus omnibus non potest alia iniungi poenitentia, nisi illa Evangelica, Matth. 18. Redde quod debes, et illa Apostolica, Rom. 13. Reddite omnibus debita. Et illud Ecclesiastici 4. Redde debitum tuum. Quod si hanc acceptare noluerit confitens, nulla alia iniungi potest, quae valeat ad salutem; quia, ut dicit Augustinus epist. 54. ad Macedonium 14. quaest. 6. Si res aliena, propter quam peccatum est, possit reddi, et non redditur, poenitentia non agitur; non remittitur peccatum, nisi restituatur ablatum. He then enumerates the rest shortly after in part. 7. He indeed condemns confessors who omit the debt; but he imposes nothing about Restitution upon them.

IT IS PROVED, because the obligation of restitution arises from the virtue of Justice alone; but the Confessor is bound to admonish not from his own justice, but from religion.

From the conditions adduced above other decisions are had. The first is that a Defendant who unjustly denies the crime in court is not bound to pay the monetary penalty due to the judge before the sentence. So Tanner. num. 76. with Adrian quodlib. 6. Navarre in the manuali, cap. 18. num. 49. Couarv. in Epitome 124. part. 2. cap. 6. §. 8. num. 10. Azor. Lib. 5. cap. 8. quaestio 5. Vasquez prim. 2. disput. 175. cap. 5. against Soto Lib. 4. quaest. 6. art. 6. Molina Tract. primo, tract. 2. disp. 95. The same seems to hold of witnesses, if they testify falsely. So Tanner. with Sà V. Restitutio, and Azor. at the place cited. The reason is that they are not bound out of justice to procure the good of the Judge or of the Treasury; nor has the Treasury acquired any right, under Commutative Justice, to the money before the sentence.

IT IS GATHERED secondly that both the Defendant and the witnesses, unjustly denying the truth, are bound to restore to the damaged party the expenses and other losses inflicted by the denial of the truth. So from the common teaching Carbo quaest. 31. Sà at the place cited, Soto Lib. 4. quaest. 7. art. 3. Medina Cod. de restit. quaest. 9. Tanner. num. 77. For they were bound out of justice not to damage the innocent party; yet they can be excused if grave losses to themselves threaten from the confession. So Tanner. with Lessius, and Sà. They judge it probable, indeed, that Molina holds they are never bound, disput. 83. Sylvester V. Testis, Lessius Lib. 2. cap. 30. dub. 8. Vasquez speaking of the Defendant in the chapter above cap. 2. Tanner. num. 79. Because it does not so plainly appear that these are bound to it out of justice.

IT IS GATHERED thirdly that a Judge negligent in delivering sentence is bound to restore the losses to the Republic and to the parties, but also the penalty which he would have paid to the Treasury for the Defendant had he proceeded rightly. The same they assert likewise of the fiscal officer: Sylvester V. Poena, quaest. 28. Salon art. 7. controv. 5. Carbo quaest. 31. who says it is the common opinion, and Vasquez agrees as to the fiscal officer. The reason is that out of justice these are bound to it by their office.

The CONTRARY, however, as to the Judge, regarding the monetary penalty to be paid to the Treasury, is held by Azor. at the place cited, ad 4. Sà V. Restitutio; Vasquez at the place cited. Lessius Lib. 2. cap. 3. dub. 10. as to the fiscal officer, whom others reported by Salonius follow.

IT IS GATHERED fourthly that toll-collectors are bound to restitution for the neglect of a just toll; but say otherwise of the monetary penalty which would come to the Treasury if they neglected to procure it. Say the same with Bassaeus of the keepers of things and fruits, from which something is given to the Prince.

IT IS GATHERED fifthly that Keepers of forests, rivers, etc. are not bound to pay the penalty which would have come to the Treasury had they reported the transgressors to the Magistrate. So Sylvester V. Restit. 3. quaest. 5. §. 7. Bassaeus num. 17. Lessius lib. 2. cap. 13. dub. 10. Tanner. num. 83. against Cato and Salonius. The reason is that their office out of justice regards not the good of the Treasury, but the security and defense of the public good. Except the tributes, as I said, excerpted from these.

Whether he who has promised three or four times to make restitution, and has not restored, is to be absolved before restitution.

The answer is with D. Bonaventure at the place cited, whom Fagundez follows on the seventh precept of the Decalogue, cap. 14. num 17. if the debt be public, such as is seen in usurers and the ravishers of churches, he is never to be absolved, nor even the first time, before he pays and gives security; and this on account of the scandal of the people.

The Sainted Doctor adduces cap. 3. particula 54. the Decree of Eugenius III. against the ravishers of churches, which is found in extra de raptoribus, where he decrees this, saying:

Statuimus, ut quicumque ex his, qui violenter surrexerint in rapinam, sive in Ecclesiarum violatione manifeste deprehensus fuerit, nisi prius ablata restituit si poterit; vel emendandi firmam, et plenam fecerit securitatem, poenitentiae beneficium ei penitus denegetur. Si vero usque ad obitum in contumacia sua duraverit, et in extremis positus, remedium poenitentiae humiliter postulaverit, si emendationem, vel emendandi securitatem praestiterit, ei poenitentia, et Ecclesiastica sepultura concedatur. Qui autem in sanitate obstinata mente non poenituerit; vel emendaverit; et in morte securitatem praestare nequiverit, solemnitas poenitentiae parum prodesse videtur, sicut credimus, sed de peccato contrito viaticum non denegetur, ita tamen, ut nullus clericorum sepulturae illius intersit, nec eius eleemosynam recipere praesumat. Quod si quis presbyterorum, vel clericorum contra haec in vita, vel in morte poenitentias dare, aut sepulturae interesse, vel eorum eleemosynas accipere attentaverint, seu huiusmodi rapinae participes inventi fuerint; ordinis sui damnum irrecuperabiliter patiantur, et Ecclesiastico beneficio careant. Haec Canon.

But the Sainted Doctor notes, from Raymond, that this decretal is local in scope; nor are public suffrages to be denied to the penitent; yet his heirs, to whom his goods have passed, are to be compelled to satisfaction, extra de sepulturis, §. Parum prodesse, as far as the temporal punishment is concerned.

Then, if Excommunication has been imposed upon the non-payer, as it is said to be imposed in the Tridentine, sess. 25. cap. 22. upon those who do not pay Tithes, he is not to be absolved even the first time, unless he pays, or, if he cannot, gives a pledge of security.

He adds thirdly that in the ordinary cases he who has three times failed to carry out the promise is considered to be trifling; yet there may be some circumstance of person, place, etc. such that it can seem to the Confessor, who needs prudence, that he should be absolved. So also Sayrus in clav. reg. lib. 10. tract. 5. cap. 5. num. 26. and others as reported by him.

From what has been said you have, also, that he who in life is unwilling to restore, but reserves the committing of it to his heirs at death, is not to be absolved. So the Sainted Doctor at the place cited, and D. Thom. quaest. 62. art. ultim. Toletanus in summa, lib. 5. cap. 24. Navarre Lib. 4. de restitut. cap. 12. num. 72. Soto lib. 4. de Iustitia, quaest. 7. art. 4. Sylvester V. restitut. 5. num. 7. and others to whom Fagundez subscribes at the place cited, num. 19.

The reason. Fagundez follows D. Bonaventure in the speculum animae, cap. 2. §. 4 and in the Confessionale, cited by name, because he who unjustly retains is always in act a debtor bound to pay, and unjust, if he does not pay.

But in no case is a Confessor who omits the admonition bound to restitution.

For you will say to Nunges: he is bound out of justice to admonish the penitent: Therefore, omitting it, he sins against justice.

Diana answers that he is bound out of Justice, a debt owed from religion by the Sacrament of penance, which regards the penitent in order to spiritual salvation; in this the confessarius who omits to admonish indeed falls short, but he does not fall short in any obligation of justice which regards the temporal good of the creditor; Valencia subscribes disput. 5. quaest. 6. puncto 3. Tannerus quaest. cit. I confess that in other cases, where there is a proper obligation of justice, the debt of restitution is found, for instance in the Praetor, Governor, in the Keepers of the chains, etc.

From the second head, namely of another's property, arises the obligation of restitution.

But Valencia at the place cited, and Cassensis disput. 1. sect. 4. note, that even goods possessed in good faith, when they are acknowledged to be another's, one is bound to restitution; for no one ought to be made richer by another's loss, according to rule 48 in 6. and the Law Nam hoc natura, ff. de conditione indeb.

But the Doctors establish this general rule: As long as the thing endures in its own species and substance, it ought to be restored as itself; but if it has been consumed, there ought to be restored that by which you have been made richer, or in which you have preserved your own property, for instance food, clothing, etc.

Yet they raise the doubt: Whether he who in good faith buys a stolen thing from a thief, and resells the same to another, is bound to give back the price to that buyer; and they answer in the negative: Lessius Lib. 2. cap. 14. dub. 5. Rebellius part. 1. lib. 2. quaest. 3. Cassensis at the place cited. num. 31. Cajetan V. Restitutio. Navarre in the manuali, cap. 17. num. 7.

The opposed opinion is that of Valencia puncto 3. Soto lib. 4. de Iustitia, quaest. 7. art. 2. that such a one is bound to restore the price to the third buyer, indeed in the case in which the buyer knows, or seems to have knowledge, that the thing is another's. For if he does not seem likely to know it, and no comparison is made, there is no need to restore anything to him, since otherwise no damage threatens him.

To my mind, following D. Bonaventure in the speculum animae, cap. 2. the former opinion seems more likely; for it seems to compel only purchases and sales of bad faith to restitution; but the obligation remains with the thief.

The reason is that the price, which alone seems subject to Restitution, has not been exchanged formally with the thing, but with the price given by me to that first seller from whom I bought; and accordingly the obligation still remains with the first seller.

I ADD indeed, with D. Bonaventure at the place cited, Caspensis, num. 61. and others, that the thing ought to be grave, for restitution to be owed. Sanchez lib. 2. cap. 23. num. 160. Azor 3. part. lib. 4. cap. 8. Filliucius tract. 32. num. 31. Lessius lib. 2. cap. 7. num. 24. Sylvius quaest. 62. art. 4.

BUT the debt of restitution can arise ex re, by the just acceptance, by contract or acceptance, of a thing owed to another, and therefore in these it seems to arise more from the thing itself; likewise ex re by an unjust acceptance, as when the thing is still in the hands of the thief, in whom the obligation is greater; for in these cases of unjust acceptance, by which ownership is not transferred, as in theft, rapine, etc. the detainer is always in mora, and sins mortally by detaining, even though he repents having accepted it; provided, however, the possibility and opportunity of restoring be present. Whence Saint Augustine, epistola 54. Non dimittitur peccatum, nisi restituatur ablatum. But in those cases in which ownership passes to the receiver, as in sale, loan, etc. no one is in mora except according to the conditions attached, as the Sainted Bonaventure disserus at the place cited of the speculum.

THERE are indeed also contracts in which ownership is not transferred, as Commodatum, Precarium, Locatum, Depositum, and Pledge, as I said in the preceding disputation, question 10.

One must know that some contracts are referred to the utility of the receiver alone, as mutuum, donation, commendatum, and precarium. Others regard the utility of the giver alone, as depositum and mandatum. Others regard the utility of both contracting parties, as sale, letting, and likewise pledge, and also depositum, when some wage is given on account of the keeping.

IT IS ASKED, then; when is anyone bound to restitution from a contract when the thing perishes; but the thing can perish by chance, by fraud, or by negligence.

IT IS CERTAIN first that from no right does an obligation to restore arise from a contract when the thing perishes by mere chance (unless that is included in the contract:) for so in Canon Law cap. ultimo de commodato, and cap. 2. de deposito, and in Civil Law L. 27. ff. de reg. iuris; and Leg. 18. ff. commodati, and Leg. 22. Cod. de negotiis gestis. The reason is that, unless otherwise provided in the contract, the contracting parties are bound only to that which is in their power, which chance happenings are not. Yet these things can be included in contracts, as the Laws cited affirm. Likewise this obligation can arise from another head, when, for instance, someone was in mora of restitution, or made illicit use, for instance, if he carries the silver lent him onto a ship, to dine on the Lake, and for these causes it perishes.

IT IS CERTAIN also that if the thing perishes through fraud, or through grave, or serious fault, he is bound to restitution: It is evident from the Canon and Civil Law cited.

SIMILARLY, when the contract can be freely revoked by him who freely hands over his own thing to another, then he who has another's thing is bound to restitution only in fraud and grave fault, which is serious. It is proved from the Law 23. ff. de reg. Iuris, where the Jurist says: Contractus quidam dolum tantum recipiunt, scilicet Depositum, et Precarium.

BUT when the contract cannot be revoked, if it regards the utility of both contracting parties, it obliges the receiver in respect of grave and light fault; but if it is for the utility of the receiver alone, it obliges him even in respect of the lightest fault. It is proved from cap. 1. de commodo, and the Civil Law Leg. 5. et 18. ff. commodati, and Leg. 1. ff. de obligationibus.