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Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

 

Number 39

 

The Roots of Restitution

 

A few remarks remain to be made under the heading of The Necessity of Restitution before going on to the next “question”.  From the quotations taken from the Old Testament in the December 1993 conference, the “precept” to make restitution is conceived of in positive terms:  “Thou shalt restore to its rightful owner whatever of his you have in your possession.”  Nevertheless, at its base is a “negative” precept:  “Thou shalt not retain in your possession what rightfully belongs to another.”  What is the significance of that?  Well, we must remember that “positive precepts” oblige only from time to time.  “Negative precepts” oblige always, i.e., continuously.  In this case, someone who, having every opportunity to do so, knowingly omits making restitution over a period of time has lived during that time in a continual state of sin against the 7th Commandment.

 

In the past, circumstances have arisen where a dying person happens to be under an obligation to make restitution.  A confessor or anyone aware of the fact is obliged in charity to help the dying man form a good faith intention of making restitution, or of paying the equivalent in compensation out of his estate.  The one helping should also make sincere, good faith efforts to see to it that the dying man’s intention is carried out. 

 

There have also been situations in the past where the dying man has instructed his heirs to make restitution for him as soon as possible after his death, and where the heirs have been delinquent in carrying out his instructions.  Somehow the mistaken notion arose that the dying man would have to remain in Purgatory until the restitution was actually made.  This is erroneous, since no one can be made to expiate in the ext life for the negligence or sins of his heirs.

 

The Second Question:  THE ROOTS OF RESTITUTION…

 

The obligation to make restitution arises out of two distinct “roots” or “facts”.  The first is the “mere” fact of RECEIVING into one’s possession what belongs to another, and the second is the fact of UNJUSTLY RECEIVING another’s property into one’s possession.  With regard to the second, no distinction is made between “unjust taking” and “unjust receiving”.

 

The practical consequences arising out of the two distinct roots are also distinct and worthy of note:

 

(a)    the one who unjustly takes or receives remains under the obligation to make restitution even though the goods or the property perish or are destroyed through no fault of his own.  That is because the voluntary, “culpable harm” caused by the violation of justice (unjust taking or receiving) remains.  In cases where the goods or property are MERELY RECEIVED, there is no obligation to restore should the thing in question perish or be destroyed through no fault of the one receiving.

 

(b)    The one who unjustly takes or receives is obliged to return not only the goods or property, but also all the “fruits” and benefits generated by the property in question while it is in his possession, even if the said “fruits” have been consumed and no longer exist.  This, too, is by reason of the deliberate, culpable “increasing” harm (because the value of what is retained increases) caused by the unjust taking or receiving.  The one who “merely” (i.e., without moral fault) receives the goods or property is not obliged to restore fruits or benefits generated while they are in his possession if he has in good faith consumed or used them up.  If he has not used them up, and they remain, he is obliged to restore the fruits and benefits along with the goods and property.

 

(c)    Thus, the “measure” of the restitution also differs for each of the “roots”.  For unjust taking or receiving it is the “full value” of the harm caused.  For mere receiving it is the object or its fair value, plus whatever unused fruits and benefits it has generated.

 

Now a bit more detailed consideration of:

 

Article I – UNJUST TAKING OR RECEIVING…

 

The term “unjust receiver” (Latin:  acceptor injustus) covers much more than the expression suggests.  It extends to include “anyone who voluntarily causes unjust harm”  (damnificator injustus).  It is not necessary that the one harming “benefit” from the harm done, nor that his personal action directly and immediately cause the harm.  One becomes a “damnificator injustus” by merely aiding and abetting the one who personally and directly causes the harm, or by failing to prevent the harm, when one has an obligation to prevent the harm.  The term “harm” in these definitions includes any kind of “loss” inflicted upon the victim of the “unjust receiving”.  In other words, the one who causes a “loss” to be inflicted upon another is analogized to one who has “taken away” the goods or the value “lost” by the victim.  It is the “loss” unjustly suffered, therefore, that gives rise to the obligation to make restitution.  We have, then, this

 

            1st GENERAL PRINCIPLE:

 

“In order that a person who has caused a harm or detriment or a loss to be inflicted upon another be bound in conscience to make restitution, three conditions are required.  The action causing the harm must be TRULY unjust, EFFICACIOUSLY unjust, and FORMALLY unjust.”

 

A.     Truly unjust:  a strict right of the victim has been violated.

 

B.     Efficaciously unjust:  the harm done is “real” and “actual”.

 

C.     Formally unjust:  the harm must be knowingly, culpably intended.  With regards to (A), the harm inflicted may occur in at least three distinct ways:

 

(1)    When the unjust action carries off or destroys something IN WHICH or OVER WHICH another has a “right”  (violation of a “ius or re”).

 

(2)    When the unjust action PREVENTS another from acquiring what he HAS A RIGHT TO ACQUIRE (violation of a “ius ad rem”).

 

(3)    When the unjust action prevents another from OBTAINING A GOOD to which he has no strict right in justice (violation of a general right freely to pursue personal happiness).  In this later case, the obligation is not to restore the GOOD THING unattained, but to restore the “possibility and opportunity” to ATTAIN that good.

 

The “unjust deeds” envisioned by (1) above are, obviously, outright theft and outright destruction.  Some “examples” of the unjust deeds envisioned by (2) and (3) above that can and do violate the rights mentioned are as follows:  Fraud, deception, telling outright lies, calumny, detraction, violation of secrecy or confidentiality, bribery, extortion, intercepting and reading another’s mail, etc..

 

The reason why the emphasis is on “unjust deeds” is because there ARE times when the deeds of one who is acting within his/her own rights “happen” to cause ”harm and loss” to another.  In such instances the rightly and lawful pursuit of a personal good is directly intended, and the harm to the other is merely “permitted”.  Of course, the personal good intended must be proportionately greater or weightier than the harm or loss “permitted” to befall the other.

 

With regard to (B), it is necessary that the “harm” or “loss” ACTUALLY OCCUR.  The unjust deed must be the true “cause” of the harm by its very nature and in virtue of its own proper force or power.  That is, the harm must “necessarily flow from” the unjust deed.  Thus the obligation to make restitution does not arise if the “unjust deed” does not succeed in inflicting the harm INTENDED.  Neither does it arise if the unjust deed is the mere OCCASION, or a CONDITION SINE QUA NON, or ACCIDENTAL CAUSE of the harm or loss suffered by another.

 

An Occasion:  Unjust deeds that cause scandal or bad example and thus “merely induce” others to inflict similar unjust harm or loss upon third parties.

 

A Condition sine qua non:  An example would be “merely providing” (as opposed to “knowingly providing”) another with tools or equipment or the means that will be used to inflict unjust harm or loss upon another.

 

An Accidental Cause:  These would be just OR unjust actions which of themselves do not result directly in harm or loss to another, but which, because of some unforeseen, intervening agent or circumstances, DO BECOME the efficacious cause of harm or loss to another.  The example is given of someone who lights a small fire in a remote place (whether for a just or for an unjust reason), but then, because of sudden unexpected gale winds, the fire spreads to and destroys another’s crops or buildings.  The one who lit the fire is not obliged to make restitution.

 

With regard to (c), no one is held responsible for the effects of his/her deeds unless the effects are clearly foreseen and deliberately and freely intended.  To be held responsible, of course, includes having either blame OR merit IMPUTED to the one so acting.  We use the word “culpable” to refer to those deeds for which blame or fault is imputed.

 

Catholic moral theology distinguishes MORAL culpability and “mere” JURIDICAL culpability.  The former has to do with blame or fault before God, and is twofold:  one has to do with a violation of rights conferred by God (of which God is the author), and the other has to do with rights created and conferred by HUMAN positive law, BUT of such a nature as to be binding in conscience (i.e., before God).  The latter has to do with violation of rights created by human positive law AND of such a nature as NOT TO BE BINDING in conscience.  Moral culpability for harm or wrong inflicted upon another in violation of the rights referred to above ALWAYS issues in the obligation to make restitution.  Juridical culpability does not, of itself, oblige one to make restitution.  But it can happen that, because of a court judgment or a promise freely undertaken (unilateral contract), the obligation to make restitution is created and imposed upon one who is only “juridically culpable”.

 

2nd GENRAL PRINCIPLE:

 

“The GRAVITY of the Obligation to make restitution to be made is derived from BOTH the Gravity of the harm done AND the Gravity of the unjust deed from which the obligation grows.“  Therefore:

 

(a)    Whoever commits a grave sin that causes grave harm is clearly under a grave obligation to make restitution.

 

(b)    Whoever commits a sin, grave or slight, which causes slight harm, is under a slight (non-grave) obligation to make restitution.

 

(c)    Whoever commits a sin which is “objectively” grave (or grievous), but which, because of mitigating circumstances, is “subjectively” non-grievous, incurs only a slight obligation to make restitution.  Thus, when grievous harm is caused by a non-grievous sin, the obligation is to make only a “partial restitution” that is, in proportion to the degree of culpability.

 

(d)    Whoever with full knowledge, deliberation and free consent commits an objectively non-grievous sin, THINKING AND PRESUMING that the harm or loss caused thereby would be slight, and it turns out that the harm done is actually grave, incurs an obligation to make “full restitution”, even though the obligation itself remains “slight”.  (But there are some moralists who say that in this instance the obligation is also grave, on the grounds that for a completely free and deliberate act the gravity of any obligation to make restitution is measured by the gravity of the harm).

 

(e)    Should a situation arise where an individual commits a series of slight sins against the same person, and where the slight harm done by the individual sins adds up to “serious” harm, a time comes when the obligation to make restitution for the “entire harm” itself becomes serious, i.e. grave.

 

In all of the above, as you have surely grasped, a violation of a “grave” obligation is an “objectively mortal” sin, whereas the violation of a “slight” obligation is an “objectively” venial sin.

 

                        3rd GENERAL PRINCIPLE:

 

An obligation to make restitution DOES NOT, without more, arise out of a violation of Legal Justice or of Distributive Justice.”  We recall that the virtues of Legal and Distributive Justice by their very nature are to be exercised by the “superiors” in society, that is, those holding public offices.  Those instances where the obligation to make restitution MAY ARISE are limited to the distribution of (a) “appointed offices”, (b) benefits arising out of legal “entitlements” and (c) tax liability and similar burdens.

 

(a)    The “common good” requires that appointed public offices be conferred on individuals who are capable and willing to fulfill them.  In the event individuals are appointed who lack the necessary qualifications, and whose actions in specific cases cause “harm” or “loss” to individual citizens, the obligation to make restitution to the person harmed DOES arise.  Strictly speaking, the obligation should fall on the public official who made the appointments, but in our society, it is the “government” which the culpable official represents that is required to make restitution.  Unfortunately, our various “governments” (city, county, state, federal) do not always acknowledge liability for the damage done to citizens by inept or unqualified officials, and in those instances where they do, the one injured is required “to sue” for the restitution owed.

 

(b)    The common good requires that statutory benefits are granted to those “legally entitled” (or qualified) to receive them.  If, at first, a worthy applicant is denied, and then, after an appeal, it is shown that the denial was an error, an obligation arises to make restitution of all the benefits withheld while the “appeal” was being processed.

 

(c)    In theory, the common good requires that the burden of taxes and other similar burdens be distributed equitably.  In theory, those who can prove that they were taxed above and beyond their “fair share”, are entitled to the restitution of the excess taxes.  Practically speaking, in a society as complicated as our own, and in which identifiable “interest groups” seem to relate to one another in an “adversarial” context rather than in one of “mutual cooperation and concern”, it is difficult, if not impossible, to arrive at a formula that does “justice” to all.  (How desperately we need the Kingdom of God!  How earnestly we should desire and pray for Its coming!)

 

 

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