Front Page Titles (by Subject) QUESTION LXII.: OF RESTITUTION. - Aquinas Ethicus: or, the Moral Teaching of St. Thomas, vol. 2 (Summa Theologica - Secunda Secundae Pt.2)
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QUESTION LXII.: OF RESTITUTION. - St. Thomas Aquinas, Aquinas Ethicus: or, the Moral Teaching of St. Thomas, vol. 2 (Summa Theologica - Secunda Secundae Pt.2) 
Aquinas Ethicus: or, the Moral Teaching of St. Thomas. A Translation of the Principal Portions of the Second part of the Summa Theologica, with Notes by Joseph Rickaby, S.J. (London: Burns and Oates, 1892).
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Article I.—Is restitution an act of commutative justice?
R. To restore is nothing else than to re-establish a man in the possession or ownership of that which is his; and thus in restitution the equality of justice is obtained by weighing thing against thing; which is characteristic of commutative justice. And therefore restitution is an act of commutative justice, and has place when the thing belonging to one man is held by another, whether by the will of the owner, as in a case of loan or deposit, or against his will, as in robbery or theft.
§ 2. There are three ways of taking away another’s character. One is by telling the truth in due order of justice; and then no obligation of restitution exists. Another way is by telling a falsehood contrary to justice; and then the party is bound to restore his neighbour’s character by confessing that what he said was false. The third way consists in telling the truth, but unjustly, as when in violation of due order one reveals the crime of another; in which case he is bound to restore that other’s character, so far as he can without lying, as by saying that he has spoken amiss, or has defamed him unjustly; or if he cannot restore his character, he is bound to make it up to him in some other way.
Article III.—Is it enough to restore the simple amount that has been unjustly taken away?
R. There are two things to consider in a case of one man taking that which belongs to another. There is first the disturbance of equilibrium of possession, which disturbance may be without injustice, as in loans. Then there is the crime of injustice, which may exist even where equilibrium of possession is undisturbed, as when one seeks to do violence but prevails not. On the first count a remedy is applied by restitution, whereby the equilibrium is restored; and for this it suffices to restore the exact amount that we have taken of another’s property. But to the crime a remedy is applied by a penalty, which it is the judge’s office to inflict. And therefore, before the culprit is condemned by the judge, he is not bound to restore more than he has taken; but after he is condemned, he is bound to pay the penalty.
Article IV.—Is any one bound to restore what he has not taken away?
R. Whatever causes loss to another may be considered to take away from him so much as the loss amounts to; for according to the Philosopher, loss means some one having less than he ought to have.1 And therefore a man is bound to restore the amount of loss that he has caused. But there are two ways of suffering loss. One way is by a person being deprived of what he actually had; and such loss must always be made good by paying back an equal amount. Thus if one pulls down another man’s house, he is bound to restitution to the extent of the value of the house. Another way of causing loss to a neighbour is by hindering him from attaining what he was in the way of having. Such loss need not be made good by the payment of an equal amount, because the potential having of a thing is less than the actual having; and he who is in the way of attaining has the thing only virtually or potentially; and therefore, if restitution were so made to him as that he should have the thing in act and present reality, he would have that which was taken away restored to him, not simply, but with advantages, which is not necessary to perfect restitution. But he who took it away is bound to make some restitution according to the condition of persons and affairs.
§ 1. He who has sown seed in his land has not yet got the harvest actually, but only virtually; and in like manner [§ 2] he who has money has not yet got gain actually, but only virtually; and both the one and the other acquisition may in many ways be hindered.1
Article V.—Is restitution always to be made to the person from whom the thing was taken?
R. By restitution a return is made to the equality of commutative justice, which consists in an equilibrium of possessions. Such equilibrium would be impossible, unless the deficiency were made up to him who has got less than of right belongs to him. In order to make up this deficiency, restitution must be made to him from whom the thing was taken away.
§ 1. When the thing to be restored is evidently grievously hurtful to the party to whom restitution is due, or to another party, then restitution ought not to be made to him, because the end of restitution is the utility of him who receives it; for all articles of possession fall under the category of the useful. Still the retainer of another man’s goods ought not to appropriate them to himself, but either preserve them for restitution at a fit time, or hand them over to another for safer custody.
§ 2. There are two sorts of unlawful giving. In one the giving itself is unlawful and illegal, as in the case of simony. The giver there deserves to lose his gift: hence restitution ought not to be made to him. And because the receiver also has broken the law in receiving, he ought not to keep the money for himself, but to turn it to pious uses. The other sort of unlawful giving is giving for a service that is unlawful, though the giving itself is not unlawful, as when one gives to a prostitute her hire. Hence such a woman can keep what is given her: but if she had extorted anything in excess by fraud or guile, she would be bound to make restitution to the party of whom she had it.
§ 3. If no trace can be found of the person to whom restitution is due, the other party is bound to restore so far as he can, by giving alms for his good estate, alive or dead, but not before diligent inquiry made after the person. If the party is dead, restitution is due to his heir, who counts as one person with him. If he is far distant, what is due should be forwarded to him, especially if it is a thing of great value, and can be forwarded easily: otherwise it should be deposited in some safe place to keep for him, and notification thereof sent to the owner.
Article VI.—Is he always bound to restitution, who has taken the thing?
R. There are two matters to consider, the thing itself taken, and the taking of it. Now on the score of the thing taken, a party is bound to restitution so long as he has the thing in his possession: because what he has over and above his own, ought to be withdrawn from him and given to the person to whom it is missing, according to the form of commutative justice. But the act itself of taking the thing that is another’s may assume three several shapes. Sometimes it is wrongful, being done against the will of the owner, as in theft or robbery; and then the taker is bound to restitution, not only on the score of the thing, but also on the score of the wrongful act, even though the thing does not remain in his possession. For as he who strikes another is bound to make compensation for the injury to the sufferer, although nothing remains in his possession: so whoever robs or steals is bound to compensate the loss inflicted, even though he have no profit therefrom; and he ought further to be punished for the wrong done. In another way one takes the thing of another to his own benefit without wrong-doing, that is, with the consent of the owner, as in loans; and then the taker is bound to restitution of the thing taken, not only on the score of the thing, but also on the score of the taking, even though he has lost the thing: for he is bound to recompense him who has done him a favour, which will not be recompensed if the benefactor loses by the transaction. In a third way one takes the thing of another without wrong-doing, but without any benefit to himself; such is the case of a deposit; and he who thus takes a thing is nowise bound on the score of the taking,—nay, by taking he renders a service; but he is bound on the score of the thing taken. And therefore, if the thing passes from him without his own fault, he is not bound to restitution. It would be a different case, if he lost the deposit through his own great fault.
Article VII.—Are they bound to restitution, who have not taken the thing?
R. There is an obligation of restitution, not only on the score of the thing taken, belonging to another, but also on the score of wrongful taking. And therefore whoever is a cause of wrongful taking, is bound to restitution. And this has place in two ways, directly and indirectly.1Directly, when one induces another to take a thing, either by express precept, counsel, or consent, moving him to take, or by praising him as a man of spirit for having taken, or by harbouring him, or by lending a hand in his crime of theft or robbery. Indirectly, when one does not hinder it, having the power and the duty to hinder it, or when one keeps back a command or an admonition that would hinder the theft or robbery, or withholds his own assistance whereby he could prevent it, or conceals the deed after it is done. We must know however that five only of the above connections always bind to restitution. First, command, because whoever commands is the prime mover: hence he is primarily bound to restore. Second, consent, in the case of him without whose consent the robbery could not be committed. Third, harbouring, when one is a harbourer and patron of robbers. Fourth, partaking in the crime and in the booty. Fifth, non-intervention, when you are bound to intervene; as princes, who are bound to maintain justice in the land, are bound to restitution, if by their shortcoming robbers increase; because the revenues that they have are a sort of pay regularly given to this end, that they may maintain justice. But in the other cases enumerated there is not always an obligation of restitution; for counsel, or flattery, or the like, is not always an efficacious cause of robbery. Hence the adviser or flatterer is then only bound to restitution, when there is room for a probable estimate that the unjust taking followed on such causation.
§ 3. He who does not inform against a robber, or who stands not in his way, or reproves him not, is not always bound to restitution, but only when he has an official duty to do these things, as rulers of the land have, who are not much endangered by doing so: for it is to this effect that they hold office, that they may be the guardians of justice.1
[1 ]Loss, less: damnum, minus. The etymology, if any is intended, is more apparent in the English than in the Latin. Aristotle (Ethics, V. iv. 13) says simply, τὸ δ’ ἔλιττον τω̂ν ἐξ ἀρχη̂ς ζημιο[Editor: illegible character]σθαι—“Loss is having less than one had to start with.” (Trl.)
[1 ]Might be hindered, that is to say, in the thirteenth century. St. Thomas was reluctant to recognize a principle that he saw would go to justify the taking of interest on money lent. We have in fact here the title of interest known as lucrum cessans, a title that has been generally validated by circumstances which have arisen since St. Thomas wrote. See Ethics and Natural Law, pp. 260, 261. (Trl.)
[1 ]We should say, positively and negatively. (Trl.)
[1 ]It is not enough that you have sinned anyhow, say, against charity, in allowing your neighbour to sin against justice; but your connivance at his act must amount to a breach of commutative justice in you, before you are bound to restitution in default of his making it. See Ethics and Natural Law, pp. 107, 108, 244. (Trl.)