Summa summae S. Thomae, Tomus III

Goods of twofold kind must be distinguished here. Some are certain, others uncertain. Certain are called those whose owner is certain and known, uncertain those whose owner is unknown or uncertain.

§ I

To whom are certain goods to be restored?

I say : Certain goods are ordinarily to be restored to him from whom they were received, whether he be their owner, or only legitimate possessor ¹ .

Proof of the first part² . Restitution is employed that equality may come about, which consists in the equalization of things. Yet this cannot be had unless restitution be made to him who through the taking away has less than he ought to have. Therefore.

Proof of the second part; because while someone possesses a thing under legitimate title, although he is not its true owner, as the bailee for use, depositary, etc., he nevertheless has a right either of using it, or of guarding it, preserving it, etc.; which right is injured by taking away the thing, nor is it repaired except by restitution made to him, and not immediately to the owner.

I said, « ordinarily, » because there are several exceptions. First³ . When a thing to be restored appears gravely harmful to him to whom restoration is to be made, it ought not then be restored to him, but either kept back, that it be restored at a suitable time, or handed elsewhere for safer keeping; because restitution is ordered to the utility of him to whom it is restored. I say the same if he reclaim it to another's damage : both because he has no right of reclaiming for this end; and because by the law of charity, according to which God commanded everyone concerning his neighbor, we are bound to impede evil, whether spiritual or bodily, of our neighbor when we can conveniently do so.

Second exception. When nothing concerns the interest of him from whom the thing was received that it be rendered immediately to the owner, it can be given to one or the other.

Third exception. When he from whom the thing was received is not capable of dominion or administration, as is a minor ward, a son of family with respect to adventitious goods, a wife with respect to common goods, a Religious, etc., the thing must be rendered to tutor, father, prelate, husband, etc. : otherwise in the external forum, according to L. Pupillus, ff de Actionibus, you will be held to pay again, unless you prove that the thing rendered was applied to the utility of the father, ward, family, monastery, etc. Nevertheless in the forum of conscience such proof does not seem required, but it seems sufficient for your release from second restitution if you prudently believe that those to whom you restore will discharge their office. From this exception except things conceded to Religious for use; for these can be restored to themselves, not to prelates.

§ II

To whom are uncertain goods to be restored?

Goods are said to be uncertain in a twofold way : 1° simply, when their owner is absolutely unknown; 2° secundum quid, when the owner is known secundum quid and in general, but who he is in particular is unknown, as if you know you owe something to one of several, but know not to whom.

I say 1° : All goods simply uncertain, whether gotten from delict or not, or found, are to be expended on pious uses if, diligent inquiry having been made, the owner does not appear ⁴ ; for they cannot, as others wish, be said abandoned, since their owner certainly exists, though he be unknown; therefore they are to be expended according to his presumed will, that they be expended for his, or his kin's, or the state's utility, as we proved at greater length dissertation III, on Dominion, a. 1, § 4.

[In the same place was expounded and proved our opinion concerning goods of another possessed without delict. The locus of St. Thomas to which the reader is here referred must be restricted to goods unjustly acquired, seeing that the question is thus posed : « Whether restitution must always be made to him from whom something was taken? » namely by theft.]

I say 2° : Goods uncertain secundum quid are to be restored to their owner in the best way possible. This general dictum is plain of itself. And hence in particular,

If you know you owe something to one of two or more, but know not determinately to whom, and doubt persist after diligent inquiry, the thing is to be given to them in common, that either they divide it among themselves in kind or in price, or draw lots, or otherwise agree among themselves; these not agreeing, the matter be committed to the judge's arbitration.

If damage have been inflicted upon the community itself or the city, restoration must be made not to particulars but to the city itself or the community; because the community itself was harmed, not the individuals.

But if damage have been inflicted immediately upon individuals of some community or city, as happens in unjust war or plundering of towns, fields, in sales, namely when merchants, innkeepers, bakers and the like defraud indiscriminately buyers with adulterated wares, unjust measures or weights; and yet it is unknown in particular to whom damage was inflicted : restitution ought to be made not to the poor, but insofar as possible to the very persons harmed. If therefore you have plundered inhabitants of another district, restore the sum to be divided among them by the parish priest or an honest man, according to the proportion and probability of each one's loss. If you defrauded by selling, attend to who used to approach your shop more or less, and render to them more or less, namely by selling better wares, or at lower price, or with better weight or measure, or otherwise.

Finally, if you inflicted damage upon one or very few of some city, and to whom or to which ones remains absolutely unknown, but the city is known, restoration must be made to the poor of this city, because thus the owner's will is presumed, provided the thing be of some moment; for if it be of light moment, it can be restored to any poor man ⁵ .

[You will ask whether, when a creditor was compelled to make cession of his goods, restitution ought to be made to himself or to his creditors.

I answer. Generally speaking, restitution ought not be made to the creditor, but either to the commissioner constituted by the judge for collecting the goods remaining, before distribution, or, it is posited, because the thing or money to be restored belongs to the highest creditor, and his creditors have strict right that from the goods he possessed, or which accrue to him, they be made whole ⁶ . — Except unless the creditors of the assignor, after cession, have absolutely condoned to him the part of the debt unpaid ⁷ .

Nevertheless sometimes it is licit to restore to the creditor himself, namely if he be honest and owe himself to hand over the thing or money to his creditors, if the debt be of small moment; likewise if he be in grave necessity and greatly need the thing owed him; for, as the theologians commonly teach, it is lawful for the assignor to withdraw those goods which are altogether necessary for living ⁸ .]