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Conferences on the Virtues
By Fr. Bruno Cocuzzi, ocd
Number 41
The Circumstances of
Restitution
We continue
with Question 3, The Circumstances of Restitution, of which Article 1 is: To Whom Restitution is to be Made…
The GENERAL
PRINCIPLE STATES: restitution is
owed to the one whose strict right has been violated. If he is deceased, it is to be made to his estate.
It may happen
that the one to whom the restitution is to be made is not the actual owner, but
one to whom the property in question has been entrusted, that is, one to whom
the real owner has surrendered voluntarily the rights of possession and use or
management of the property. In this instance,
should the property in question have been stolen or embezzled or otherwise
unlawfully taken from the one who had lawful custody of it, then he, and not
the owner, is the one whose strict right of possession has been violated.
There can be an
exception to this rule, however. Should
it happen that after the actual owner has lawfully entrusted part of his
property to another, the owner is obliged to file for bankruptcy, or all his
property is placed in receivership, then the restitution is to be made to the
Trustee in Bankruptcy or to the Receiver.
In the event
the person who is making restitution has a legitimate doubt as to whom it is to
be made, then he is obliged to make a reasonable effort to identify that
person, and the energy expended in the effort must be proportionate to the
value of the property to be restored.
Having done
that, the doubt may remain, and furthermore, several individuals may have been
identified, each of whom could possibly be the one in whom the restitution is
owed. An example of this would be that
a goodly sum of cash money has been found, and there may be three or four
individuals who had reported either loss or theft of a goodly sum of cash. In such a situation, the money found is to
be distributed equally among them.
Should it
happen that it is impossible to identify the actual owner or rightful
possessor; there are two possibilities.
(a) Should the one making restitution have come into possession of the
property “in good faith”, the obligation to make restitution ceases, and he may
keep the property with a clear conscience.
(b) A possessor “in bad faith”, however, would not be able to keep the
ill-gotten goods. He would be obliged
to donate the property to charity, i.e., to the poor, or to some charitable
work. Or he could have Masses offered
for the souls in Purgatory. The reason
being that it is repugnant to the Natural Law that a malefactor be
enriched by his sinful conduct.
Article
2 – The Order to be Observed in Making Restitution…
This article
presupposes (i) that someone owes restitution to several individuals at the
same time (e.g., Zacchaeus the publican, in the Gospel account) (ii) that he
does not have sufficient means to make restitution in full to all “creditors”,
and (iii) the “debts” are of two or more distinct kinds. It is this principle that is applied in
cases of Bankruptcy, since paying off anyone to whom money is owned is included
in the notion of restitution.
Debt
can be real and personal as well as mortgage debts and ordinary bills. Real debts are those that are “things” or
“objects”. If any of these have been
stolen, given “on consignment”, leased out, or borrowed, then these are to be
returned first to the rightful owner or to the one with right and strict right
of possession. As to personal debts,
some are privileged, i.e., salaries of employees or servants hold first
place, then bills for medical services, then bills for the necessities of life
(rent, food, clothing), etc. In the
event these personal debts are to be paid out of the estate of the deceased
person, funeral expenses and then the expense of the last illness are preferred
to those just mentioned. Mortgage debts
are next in line, and finally, ordinary bills.
As stated, this is the order to be observed in bankruptcy situations, or
when the assets in an estate do not suffice to pay all “creditors”
entirely. When a person is solvent or
the estate can satisfy all creditors, then the question of “order” does not
arise.
The civil law
in the various Nations or States can modify this rule to some extent. For example, a legislature may decide that
when a “debtor” who foresees imminent need to declare bankruptcy, pays off
“favored” creditors first, inconsistent with proper order, and to the detriment
of other creditors, those who have received full payment within a statutory
time prior to declaration in bankruptcy are to return the amounts paid them and
take their pro rata share along with all the other creditors. But there is always the possibility that an
insolvent debtor will deliberately pay off favored creditors before the
statutory time begins to run; prior to the date he intends to declare
bankruptcy. In such instances he sins
against commutative justice and very likely also against charity, depending
upon the gravity of the detriment suffered by the various creditors.
Article
3 – The Manner in which Restitution is to be made…
Ordinarily, HOW
the restitution is made is not a consideration; it is to be made openly and
directly between the parties.
Nevertheless, it may happen that the violation, out of which the
obligation of making restitution rises, may be a matter of public
scandal. In that situation, the
restitution must also be made publicly.
Should it happen that the one owing restitution, as a result of theft or
some other sinful act, is not known to the one to whom it is owed, it
may be done secretly and indirectly, especially if knowledge of the
culprit’s identity would inflict emotional pain or psychological harm upon the
one whose rights have been violated.
A question
arises as to how restitution is to be made to the Civil Government in those
instances where, say, a civil servant manages to steal public funds without it
being detected, and later repents and wants to make restitution. Or, when a
citizen manages to conceal considerable income from the government and so
avoids paying his fair share of taxes.
My textbook has something interesting to say about that. The author suggests that the one who owes
restitution may purchase government bonds and then destroy them, so that no one
can then ever claim repayment when they mature. Or, one may purchase postage stamps and then destroy them,
too. The author mentions an opinion
of some other moral theologian, but he does not approve of it, namely, that the
restitution be made in the form of a donation to an institution that does not
receive fair fiscal treatment from the government. For example, the money could be paid to a Catholic school, whose
students do not enjoy the support of the government, as do students in the public
schools.
Article
4 – Where Restitution is to be Made…
This article
applies only to situations in which a real restitution is to be made,
namely the return of some tangible object, e.g., farm animal or a vehicle or
equipment of any kind. Again a distinction
is made between one who has come into possession of the thing through no moral
fault of his own, and one who has unlawfully done so. In the case of the former, who is a possessor “in good faith”; it
suffices that the property be returned to the place where he first took
possession of it. The possessor “in bad
faith” is obliged to bring the thing to where the true owner, or the one who
has a strict right of possession, can take actual, physical custody of it. As a malefactor, the latter is also obliged
to pay the expense of actually delivering it.
It may happen
that the item to be restored perishes or is somehow destroyed before
restitution can be made. When the one
restoring it has been a possessor in good faith, his obligation also perishes,
because a thing perishes unto its owner. The one who had been a possessor in bad faith is not released
from making an equivalent restitution; he is obliged to indemnify the
owner.
Article
5 – The Time of Making Restitution…
Whether in the
case of real debts or in regard to the other kinds of debts, a
distinction is made between the intention to make restitution, and act
of restitution. In the case of the
former, the intention must be made immediately upon realizing that the
obligation to make restitution binds.
As to the latter, it is to be made as soon as reasonably and
conveniently possible. As to the
latter, although it is conveniently possible to make the restitution, the one
owing it can always ask the one to whom it is owed for an extension of time. To delay for an unreasonable amount of time
or without permission could itself constitute another sin against commutative
justice, especially if the owner would have been able to make use of the
property profitably, in this case, there arises a further obligation to make
“restitution” for the fruits or earnings of which the owner was unjustly
deprived.
We now turn our
attention to Question Four on Restitution:
Causes
(circumstances) Which Excuse From Making Restitution…
These are of
two kinds: Those that excuse for a period
of time only. That is, the
obligation is “suspended” for a certain length of time. Once the causes or circumstances cease to
exist, the obligation regains its binding force. The other kinds excuse from restitution permanently. That is, the obligation is entirely removed
or extinguished.
Article
1 – Causes Which Excuse for a Time…
These are: (a) Ignorance, (b) Inability, (c) Personal
Harm and (d) Harm to Another.
(a) To
excuse temporarily, the Ignorance must be inculpable, that is, without fault on
the part of the one who owes Restitution.
And it can be either Ignorance of Fact, whereby the unlawful
possessor does not know the goods in question belong to another, or Ignorance
of Law, whereby he does not know of the provision of the Law that imposes
the obligation.
(b) Inability
due to want of means (the one owing is reduced to poverty), or to some other
circumstance that makes restitution impossible.
(c) Another
name of this cause, Harm to Oneself is Moral Inability. According to my textbook, moral
impossibility exists when the making of restitution would deprive the one owing
of a very valuable and necessary condition of life. These could be one or more of (i) danger to: salvation, life, health, good name or
liberty (ii) would cause him to “fall” from an honorable State of Life justly
and honestly achieved or (iii) cause him to fall into grave financial straits.
(d) In
order for this circumstance to be verified, the one owing restitution would
have to know with reasonable certitude (i) that the restored object or
money would be used to do harm to the “creditor” himself (e.g., he had become
addicted to drugs or alcohol), or (ii) he would use the property restored to
inflict harm upon another. However, the
withholding of restitution under this “title” would have to be efficacious. That is, it would have to effectively
prevent the harm feared. If it is known
that the one to whom restitution is owed would not be prevented from harming
himself or another by the withholding, then the obligation to restore is not
deferred.
With
regard to the impossibility of making full restitution to all “creditors”
without falling into desperate financial straits, there always remains the
obligation binding upon the “debtor” to reduce his own expenses by living more
frugally and to do what he reasonably can to earn extra income so as to be able
gradually to make the restitution he owes.
However,
such a one may also resort to a declaration of bankruptcy, as a means of
freeing himself from all obligations to make restitution. But even this could be “culpable” on his
part should it happen that his inability to pay is due to his own culpable
negligence or other fault in managing his affairs. It is “not culpable” when his inability is due to mere
misfortune, that is, circumstances unforeseen and beyond his control.
Article
2 – Causes Excusing Permanently from Making Restitution…
These are, in
addition to the utter loss or destruction of a “tangible” property: (a) Forgiveness (b) Compensation, and (c)
Lawful Public Authority. However, Forgiveness
does not work unless it is free, granted by the true creditor, and not
contrary to civil law. Compensation
obviously means restoring something other than what is owed, but of equal
value. Circumstance (c) requires no
comment.
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