Palladium theologicum, Tomus quintus: De virtutibus

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.