15. Property and Reparation
THE RIGHT TO PRIVATE PROPERTY
47. Origin and Lawfulness of Private Property
In the beginning, God entrusted the earth and its resources to the common stewardship of mankind to take care of them, master them by labor, and enjoy their fruits (cf. Gn 1:26–29). The goods of creation are destined for the whole human race. However, the earth is divided up among men to assure the security of their lives, endangered by poverty and threatened by violence. The appropriation of property is legitimate for guaranteeing the freedom and dignity of persons, and for helping each of them to meet his basic needs and the needs of those in his charge.1
Some maintain that the origin of private property is to be found in the social contract, others claim that it was established by civil laws, and still some others argue that it started by mere violent seizure. These general theories are impossible to prove on historical grounds. The different schools of thought merely cite them in support of their respective positions on the value of private property.
Leaving aside the question of its historical origin, we can affirm that private property is justified as a consequence of natural rights. This does not mean that public or communal ownership is against natural law, but rather that private property—with due order and within its proper limits—is in many aspects more in accord with the natural rights of the person. It is evident, though, that, in many other aspects, public property is more in agreement with natural rights.
St. Thomas gives some reasons for the greater convenience of private property:2
· People are usually more willing to work for their own benefit than for that of a group or society.
· There is more order in society if each person is in charge of obtaining some things, rather than if all try to get all things indiscriminately.
· Experience shows that shared properties often cause greater disagreements.
The right to private property is closely linked to the dignity of the person, who is thus enabled to implement personal decisions and to keep the fruits of his work.3 Within the proper limits, private property is needed to ensure an external sphere of personal freedom. It is no coincidence that social systems that are averse to freedom are also averse to private property, and that those that deny freedom altogether also try to completely suppress private property.
48. Titles to Ownership
The way of acquiring ownership, or the title to ownership, is the reason on which the acquisition of an object or right is based. Those that are based on natural or positive laws are called legal titles. Those that are founded on free agreement are called conventional titles or contracts.
48a) Legal Titles
Four legal titles to property are usually listed: occupancy, finding lost property, accession, and prescription.
i) Occupancy is the act of taking possession of some unowned thing in order to make it one’s own. Few things have no owner, and even these are subject to laws that limit the right to occupancy. This is the case of hunting and fishing laws, mining claims, and treasure-trove laws.
ii) Finding lost property refers to cases in which there is an owner, albeit unknown. The following principles apply:
· There is no obligation of justice to pick up lost property and take care of it for its owner. There may be a slight obligation of charity.
· If anyone does pick it up, though, he must take care of it and diligently look for its owner. This is an obligation of justice that requires restitution.
· If, after diligent search, the owner is not found, the finder may keep the property.
· In order to acquire a real right of ownership, however, a title of prescription is also needed. This is determined by the laws of the place, and basically requires a certain period of time to elapse.
iii) Accession is the lawful title to the fruit or accretion of one’s existing property. Thus, the trees belong to the owner of the land, and the calf to the owner of the cow. Accession is also regulated by civil law, which binds in conscience.
iv) Prescription is the acquisition of something (property or rights) through its uninterrupted possession for a time that is specified by positive law. Because of prescription, owners take care of justifying and publicizing their rights or properties. It also avoids endless litigations, since it is often difficult to show the original titles as proof.
In each country, civil law usually specifies the conditions that are needed for a lawful prescription. Generally speaking, these are as follows:
· The object must be capable of prescription, that is, naturally capable of being owned by its alleged possessor. Goods that are public in nature—roads, bridges—and Church property can never become private properties by prescription. Rights and duties of natural or divine law are not subject to prescription either. Thus, a marriage is not dissolved by a long separation, and a long concubinage does not become a true marriage.
· It must be possessed in good faith, that is, with the prudent conviction that the property is one’s own. This is required for the duration of the possession, and not just at the beginning.
· There must be a title, a reason why the possessor is convinced that the object is his own.
· There must be actual possession of the property or exercise of the right, which is the main reason of the prescription. For lawful prescription, the possession must be: (1) as owner, not as administrator or tenant; (2) continuous; (3) public, so that any rightful owner may claim it—if it is concealed, it is reputed in bad faith; (4) peaceful, that is, without violent seizure or litigation; and (5) certain.
· The possession must be enjoyed for a certain period of time, specified by positive law.
48b) Contracts
A contract is the agreement of two or more parties to the same resolution, manifested by a sensible sign, and entailing obligations for at least one of the parties.4
Contracts stem from the social nature of man, who needs the help of his fellow men. He often gets it through an agreement in exchange for his own help. This is also the principal means of acquiring properties or rights.
Contracts can be classified in many ways. We are interested only in the following:
· A solemn contract fulfills all the formal requirements of positive law. A simple contract does not.
· An innominate contract is an exchange of goods and services without any fixed structure. It is extremely flexible and is usually divided into four types: (1) goods for goods--do ut des; (2) goods for services--do ut facias; (3) services for goods--facio ut des; and (4) services for services--facio ut facias.
· A nominate contract, on the other hand, has a fixed structure and also a fixed name, like the lease or insurance contracts. There are many kinds of nominate contracts, and their characteristics are established in great detail by the civil laws, which, as we know, bind in conscience when they are just. Some of these contracts are sale, lease, employment, partnership, deposit, donation, guaranty, mortgage, loan, and last will. Generally speaking, they can be classified into onerous contracts, which entail obligations for both parties, and gratuitous contracts, in which only one of the parties is obliged.
We cannot go into a detailed study of these types of contracts. This study should necessarily be brief and, therefore, not very explicit. Of greater interest, though, is the exposition of the general properties of contracts.
48c) Conditions for the Existence of a Contract
Four requisites are needed for the existence of a contract:
i) Suitable matter:
Any contract is a transfer of property or rights. All objects of ownership are thus suitable matter of a contract. The actual conditions for a matter to be suitable are the following:
· It must be possible, both physically and morally. The obligation of the contract disappears if its matter becomes impossible (for example, if what was pledged is lost).
· It must exist, either actually or potentially.
· It must belong to the contracting party.
· It must be morally good and lawful. Nobody can pledge something evil, and if someone has already done so, he is obliged to not fulfill it. In this case, the contract does not bind, or—to be precise—it is not a contract.
If the evil has already been done, however, the other party is bound to fulfill its part as long as it is something that is in itself lawful, like paying money. But civil laws often do not compel to fulfill this second part, and they may lawfully be followed in conscience.
ii) Qualified persons:
Any person who has the use of reason and is not prevented by law can validly make a contract.
iii) Legitimate consent:
In a contract, the consent must have the following properties:
· True, that is, internal. Whoever feigns consent is not bound in conscience to fulfill the contract, but is obliged to make reparation for the fraud. Nevertheless, in the external forum, what matters is the external manifestations, and he is bound to fulfill his obligations, unless he can prove that his consent was faked.
· Free and deliberate. It must have the freedom and deliberation that is generally required for an act to be properly human.
· Externally manifested. It is an act between persons or parties, and it can be known only if it is externally manifested.
· Mutual. Both parties must agree to the contract, but there is no need to do it simultaneously; it can be done by mail, for instance.
The consent may be vitiated in the following circumstances:
· Error or fraud. If referring to the substance of the contract, error or fraud make it invalid. If referring to an accidental aspect only, the contract is still valid, but the party suffering error or fraud is often entitled to rescind it.
· Violence. If it completely takes away freedom, the act is not human, and the contract is not valid. If freedom is not completely taken away, what is said below about fear applies.
· Fear. If it is strong enough to disturb the use of reason, the act is not free and the contract is not valid. If it is strong and due only to natural causes or just causes—that is, the one who is causing fear has the right to cause it—the contract is valid. If fear is strong and unjustly caused to compel the consent, the contract is valid in principle, but it can always be unilaterally rescinded. We say in principle because positive law often declares it radically invalid.
iv) Proper external form:
Ecclesiastical and civil positive laws often require certain formalities for contract, and those that do not fulfill them are declared invalid. This is the case of the ecclesiastical law on marriages, which requires the presence of the local ordinary or parish priest for the validity of the contract.5 These laws must be followed for the validity of the contract.
48d) Effects of the Contract
Every valid contract creates a true moral obligation to fulfill it. If the contract is made under oath, the latter does not add anything to the obligation of the contract in itself, but its non-fulfillment implies an additional sin against religion by violating the oath.
49. Unjust Appropriation
Theft can be defined as taking for oneself another’s property.6 This same sin is called robbery when committed in the presence of the owner and with violence or serious fear.
Robbery involves two injustices: a real injustice (as regards the property) and a personal one. It is thus much more grievous than theft, and its moral evil is of a different nature. The obligation to make restitution, however, is the same in both cases, as we shall see later on.
49a) The Nature of Theft
Theft is the secret taking away of property against the owner’s reasonable will.7 This definition includes the unjust retention of property: not paying debts, not returning borrowed property, keeping something out of fraud, and not returning what has been found to its owner.8
There is no theft if the owner consents to the taking away of his goods or objects only to the way in which it is done. Some parents, for example, are not bothered if their child takes some things from their possession, as long as it is not done by stealth.
In order for theft to occur, the opposition must be reasonable. Thus, a husband cannot reasonably object to his wife’s secretly taking what is needed for the support of the house. Neither can the owner object if some superfluous property of his is taken by someone in extreme necessity.
49b) Moral Evil of Theft
Theft is a mortal sin ex genere suo, that is, admitting slight matter (cf. Mt 19:18). Determining what constitutes a serious matter is no easy question. In principle, we could apply the same rule as for injustice in general. There is serious matter if a serious damage is inflicted, capable of causing grave and reasonable offense and indignation, or if society is seriously damaged by introducing a grave disorder.
In the first case, we speak of relative serious matter, since it depends on the wealth of the victim. Generally speaking, the amount that is needed to support the victim’s family for one day is considered a serious matter. In the second case, we have an absolute serious matter, which is even more difficult to determine.
Petty thefts are in themselves venial sins, but can become mortal by accumulation. This can happen from the very beginning, if the intention of the thief is to gradually gather a big sum. In that case, every petty theft is a mortal sin, since that intention is implicitly renewed. In confession, however, it is enough to say that one intended to steal a large sum through small repeated thefts. Actually, all these acts constitute a single moral act. There is also accumulation if several petty thefts happen within a relatively short time, adding up to a large amount.
Usually, petty thefts at home—and concretely those of small children—are not serious. Parents may resent their stealth, but they cannot oppose these misappropriations as much as they would in the case of strangers. In some cases, however, they may be a serious sin.
50. Extreme Need
In case of extreme necessity, one may lawfully take from another’s property what is necessary, and only what is necessary to relieve that need. This does not apply to merely grave need, and even less to ordinary need. It is not lawful, moreover, if it leaves the owner of the goods in an extreme need similar to that of the taker.
This case cannot be considered as a theft that the particular circumstances make tolerable. Properly speaking, there is no theft but mere appropriation; the owner of the goods cannot reasonably object.
51. Occult Compensation
If, because of fear or some other moral impediment, someone cannot openly claim what is strictly his, he may lawfully take it by stealth. This is not a theft, since whoever keeps the property cannot reasonably oppose its being recovered by the rightful owner. This action is called occult compensation. It is occult because it is done in a secret way, and it is compensation because, if the property cannot be recovered, one is entitled to recover something equivalent.
These are the conditions for the lawfulness of occult compensation:
· The debt must be strict, that is, it does not arise from mere congruence of convenience, but from strict justice. The title or act that caused it must be certain.
· There must be no other way to recover the debt without great inconvenience.
· Any possible harm to the debtor or to third parties must be avoided (for example, if somebody else may be suspected of theft).
These conditions would be met, for example, if employees are forced to perform tasks that are not included in the contract without being paid for it, or if they are forced to accept manifestly unjust wages.
Nevertheless, occult compensation should very seldom be availed of, and even less advised. There is a clear danger of not being objective in the appreciation of the exact amount and the strict right to the debt. It may, furthermore, bring many complications if it is discovered.
52. Games of Chance
Games of chance (card games, etc.) or wagers are not in themselves contrary to justice. They become morally unacceptable, however, when they deprive someone of what is necessary to provide for his needs and those of his family and others. The passion for gambling risks becoming an enslavement. Cheating at games constitutes grave matter, unless the damage inflicted is very slight.9
THE REPARATION OF INJUSTICE
53. Restitution in General
We have already alluded several times to the reparation of injustice. We will now study this subject in a more general way.
Restitution consists in returning something to its rightful owner.10 At times, this is not possible because of the nature of the object or because it has been lost. In these cases, we speak of compensation or reparation for the damage.
Generally speaking, therefore, restitution consists in returning the object or making good for the damage. From the point of view of morals, restitution is not the same as satisfaction; the latter refers to the person (apologizing), while restitution focuses on the object.
The duty of restitution arises especially from violations of commutative justice, in which there is a perfect equality between thing and thing, between what is given and what is received, between the damage and its reparation.11
Sometimes, violations of distributive or legal justice also entail the obligation of restitution, even if there is no real equality but only proportionality. This is especially the case when the infraction also violates commutative justice. For example, tax evasion may cause damage to others if they have to pay more taxes in consequence.
If there is no way to restore something that is equivalent to what was lost (health, for example), the damage must be repaired through other means, insofar it is possible.12
Restitution—returning the unjustly taken or retained property, repairing the unjust damage—or the desire and the firm resolution of doing it as soon as possible are absolutely necessary for the forgiveness of the corresponding sin (cf. Ex 22:5; Ez 33:14–15).13 If, due to the importance of the damage, the sin is mortal, restitution—or the effective desire of doing it—is therefore absolutely necessary as a means for salvation.
The obligation of restitution arises from two causes: unjust damage and possession of another’s property. Sometimes, the problems that are posed by this obligation are rather complex. We will give only some general guidelines. If doubts arise in practical cases, the best solution is to seek qualified advice and study the situation in detail.
54. Unjust Appropriation and Restitution
Restitution, whenever possible, is absolutely necessary for the forgiveness of the sin of theft, whether it be mortal or venial. Any person who, being able to repair the injustice that was committed, refuses to do so, shows lack of repentance, and repentance is an essential condition for the forgiveness of sin. If the theft is a venial sin, it simply remains unforgiven. If it is mortal, however, the confession would be invalid, and all other sins remain unforgiven.
Some cases of unjust retention are much more complex than simple theft. In most instances, the following juridical axiom can be used as a rule of thumb: The property calls for its owner, and fructifies or perishes for him; besides, no one can enrich himself at the expense of another.
However, this applies differently depending on the good or bad faith of the possessor. Somebody may hold another’s property in good faith, when he honestly thinks that it is his; in bad faith, when he knows that it is not; or in doubt, when he is not certain about it.
If the possessor in good faith realizes that the property is not his own, he must return it to its rightful owner. He is not bound to make restitution if the property was lost or consumed. According to the most common opinion, he may keep the fruits. Possession in good faith, moreover, may eventually lead to real ownership. This is called prescription, as we saw earlier.
The possessor in bad faith must make restitution for all the damages that were caused. He must return the property or, if it has been lost, its equivalent value. He may keep only the fruits that proceed from his own work, for which the retained property was merely an instrument. Besides making restitution for the actual damages that were caused, he is bound to compensate for the lost income. The latter, however, requires only restitution to the extent that it is certain and was at least vaguely foreseen. The possessor in doubt has the following obligations:
· If the doubt arises after taking possession, he must try to solve the doubt. If he is not able to dispel it, he may keep the property. But he is bound to return it if the rightful owner appears later on.
· If the doubt already existed when he took possession and he cannot dispel it later, he is probably bound to make a proportional compensation. If he took the property away from somebody else while still in doubt, he certainly committed an injustice and is bound to return it, even if the doubt still persists.
55. Unjust Damages and their Reparation
Unjust damage implies the obligation of restitution if it is formal—that is, if it is known and wanted as such—if it is really unjust, and if it effectively causes damage.
In order to be formal, the damage must be truly unjust. It must violate commutative justice or the strict right of another, either real or personal. Some actions may be grievously sinful and cause serious damage without violating justice; these do not require restitution.
It must also really cause the damage, that is, it must be by itself the efficient cause of the damage, and not just the occasion, an accidental cause, or a necessary condition.
If both the damage and the guilt are serious, the obligation of restitution is also serious.
If the damage is slight, the guilt is always slight, and the obligation of restitution is also slight. But, just as with petty theft, this venial sin is not forgiven as long as restitution, whenever possible, is not done.
If the guilt is slight but the damage is serious, the question is difficult to answer. The common opinion among theologians is that partial restitution is required, or none in some cases. Nevertheless, this case is rather uncommon: If the damage is serious, the guilt will presumably be serious as well.
No obligation of restitution arises from a material or involuntary damage—an involuntary action does not entail responsibility. In other words, if there is no sin in the infliction of the damage, there is no obligation of restitution.
However, one is obliged to make restitution if a judge orders it. Civil laws can reasonably require restitution. This fosters the common good and makes people more careful in their actions. Obligation to make restitution also arises from a free agreement, as is the case in the insurance contracts.
56. Restitution of Damaged Good Reputation
In the case of defamation, the defamer is obliged to make restitution in order to restore the good reputation.14 This falls under the general rules for unjust damages. Thus, he has to repair the damage as soon as possible. The damages resulting from defamation include the loss of good esteem and the resulting material damages insofar as they were foreseen in at least a vague manner.
In the case of calumny, the restitution of good esteem requires a public and effective rectification. Thus, if the calumny was published by the media, the rectification has to be published as well.
In the case of a simple detraction, rectification is evidently impossible, since what was said is the truth. The detractor must use all lawful means to excuse the unjustly revealed fault, praise the good qualities of the injured party, or do whatever else he can.
In both cases, the practical difficulty of restoring lost reputation underscores the malice of defamation. Stolen goods are easily returned in full; lost reputation is hardly so. Reasons that excuse from the need to make restitution are:
· no damage ensued from the defamation because, for example, nobody believed it;
· the defamation has been forgotten through passing of time;
· the defamed has condoned reparation either expressly or tacitly;
· restitution is morally or physically impossible.
57. Restitution of Some Special Damages
If a child is born of a sexual assault, the offender is bound to shoulder the child’s support and education. If the other party was a willing partner, both accomplices share the obligation. If one refuses, the other is bound to meet in full the expenses.
A man who seduces a woman under promise of marriage, whether feigned or real, is usually obliged to marry her. This obligation, however, may disappear in many cases, such as if, for example, it can be reasonably presumed that the marriage would cause serious evils.
58. Cooperation in Unjust Damage and its Reparation
Unjust damage is often caused by an action in which several persons cooperated. This can take place in different ways:
· Positive cooperation may be given by doing something: command, counsel, consent, flattery, cover up, or participation.
· Negative cooperation implies a failure to do one’s duty: silence, failure to prevent the harm, or concealment.
As in the case of unjust damage in general, those who cooperate to inflict damage are bound to repair the harm if their cooperation is formal. This means that it is truly unjust and actually causes damage.15 In the case of material cooperation, there is no obligation unless a judge’s sentence or a voluntary agreement calls for restitution.
The following principles apply to the restitution of damages that are caused by several agents:
· The main agent of all damages, whom all the others merely assisted, is bound to repair the whole damage.16
· Whoever cooperates with others to cause the whole damage may count on their help for the reparation. If they refuse, however, he himself is bound to repair all the damage.
· If a person—acting with others but without previous conspiracy—causes part of the damage, he must make restitution in proportion to his participation in the total damage.
· If all the participants cooperated in the damage in the same way and degree, each is bound to make restitution for an equal share, regardless of what the others do. Thus, if five persons steal five million dollars, each has to return one million even if the others do not.
· If the participants cooperated in different ways and degrees, they are bound to make restitution in the following order: (1) whoever keeps the stolen property; (2) the person who ordered the deed and, in some cases, the inducer or adviser; (3) the person who executed it; (4) the other participants who positively cooperated; and (5) those who negatively cooperated by not opposing the action.
59. The Manner and Circumstances of Restitution
In making restitution, three principles must be followed:
i) Restitution has to be made to the victim of the injustice or to his heirs. If the victim is unknown, inquiries must be made. If the victim is not discovered thereby, the person who is keeping something in bad faith must give it to the poor.
ii) Restitution is to be made as soon as possible. Certainly, it cannot be postponed until the moment of death.
iii) Reparation of the injustice is enough for restitution. There is no need to let oneself be known as the author.
60. Causes Excusing from Restitution
(1) Causes postponing restitution
· Temporary impossibility to make restitution
· Surrender of the debtor’s property, by order of the court or in an out-of-court settlement, to be distributed to the creditors in proportion to their debts—such cases are usually regulated by civil law, which may be followed in conscience
(2) Causes absolving from restitution
· Condonation by the creditor, either expressed or reasonably presumed
· Prescription, in the case of a possessor in good faith, if and when it takes place
Footnotes:
1. Cf. CCC, 2402–2406.
2. Cf. ST, II-II, q. 66, a. 2.
3. Cf. GS, 71.
4. Cf. CCC, 2410–2412.
5. Cf. CIC 1108ff.
6. Cf. CCC, 2408–2409.
7. Cf. ST, II-II, q. 66, a. 3.
8. Cf. Ibid., II-II, q. 66, a. 3 ad 2.
9. Cf. CCC, 2413.
10. Cf. Ibid., 1459, 2412.
11. Cf. ST, II-II, q. 61, a. 2.
12. Cf. Ibid., II-II, q. 62, a. 2 ad 1.
13. Cf. Ibid., II-II, q. 62, a. 2.
14. Cf. CCC, 2487.
15. Cf. DS 2139.
16. Cf. ST, II-II, q. 62, a. 7 ad 2.
47. Origin and Lawfulness of Private Property
In the beginning, God entrusted the earth and its resources to the common stewardship of mankind to take care of them, master them by labor, and enjoy their fruits (cf. Gn 1:26–29). The goods of creation are destined for the whole human race. However, the earth is divided up among men to assure the security of their lives, endangered by poverty and threatened by violence. The appropriation of property is legitimate for guaranteeing the freedom and dignity of persons, and for helping each of them to meet his basic needs and the needs of those in his charge.1
Some maintain that the origin of private property is to be found in the social contract, others claim that it was established by civil laws, and still some others argue that it started by mere violent seizure. These general theories are impossible to prove on historical grounds. The different schools of thought merely cite them in support of their respective positions on the value of private property.
Leaving aside the question of its historical origin, we can affirm that private property is justified as a consequence of natural rights. This does not mean that public or communal ownership is against natural law, but rather that private property—with due order and within its proper limits—is in many aspects more in accord with the natural rights of the person. It is evident, though, that, in many other aspects, public property is more in agreement with natural rights.
St. Thomas gives some reasons for the greater convenience of private property:2
· People are usually more willing to work for their own benefit than for that of a group or society.
· There is more order in society if each person is in charge of obtaining some things, rather than if all try to get all things indiscriminately.
· Experience shows that shared properties often cause greater disagreements.
The right to private property is closely linked to the dignity of the person, who is thus enabled to implement personal decisions and to keep the fruits of his work.3 Within the proper limits, private property is needed to ensure an external sphere of personal freedom. It is no coincidence that social systems that are averse to freedom are also averse to private property, and that those that deny freedom altogether also try to completely suppress private property.
48. Titles to Ownership
The way of acquiring ownership, or the title to ownership, is the reason on which the acquisition of an object or right is based. Those that are based on natural or positive laws are called legal titles. Those that are founded on free agreement are called conventional titles or contracts.
48a) Legal Titles
Four legal titles to property are usually listed: occupancy, finding lost property, accession, and prescription.
i) Occupancy is the act of taking possession of some unowned thing in order to make it one’s own. Few things have no owner, and even these are subject to laws that limit the right to occupancy. This is the case of hunting and fishing laws, mining claims, and treasure-trove laws.
ii) Finding lost property refers to cases in which there is an owner, albeit unknown. The following principles apply:
· There is no obligation of justice to pick up lost property and take care of it for its owner. There may be a slight obligation of charity.
· If anyone does pick it up, though, he must take care of it and diligently look for its owner. This is an obligation of justice that requires restitution.
· If, after diligent search, the owner is not found, the finder may keep the property.
· In order to acquire a real right of ownership, however, a title of prescription is also needed. This is determined by the laws of the place, and basically requires a certain period of time to elapse.
iii) Accession is the lawful title to the fruit or accretion of one’s existing property. Thus, the trees belong to the owner of the land, and the calf to the owner of the cow. Accession is also regulated by civil law, which binds in conscience.
iv) Prescription is the acquisition of something (property or rights) through its uninterrupted possession for a time that is specified by positive law. Because of prescription, owners take care of justifying and publicizing their rights or properties. It also avoids endless litigations, since it is often difficult to show the original titles as proof.
In each country, civil law usually specifies the conditions that are needed for a lawful prescription. Generally speaking, these are as follows:
· The object must be capable of prescription, that is, naturally capable of being owned by its alleged possessor. Goods that are public in nature—roads, bridges—and Church property can never become private properties by prescription. Rights and duties of natural or divine law are not subject to prescription either. Thus, a marriage is not dissolved by a long separation, and a long concubinage does not become a true marriage.
· It must be possessed in good faith, that is, with the prudent conviction that the property is one’s own. This is required for the duration of the possession, and not just at the beginning.
· There must be a title, a reason why the possessor is convinced that the object is his own.
· There must be actual possession of the property or exercise of the right, which is the main reason of the prescription. For lawful prescription, the possession must be: (1) as owner, not as administrator or tenant; (2) continuous; (3) public, so that any rightful owner may claim it—if it is concealed, it is reputed in bad faith; (4) peaceful, that is, without violent seizure or litigation; and (5) certain.
· The possession must be enjoyed for a certain period of time, specified by positive law.
48b) Contracts
A contract is the agreement of two or more parties to the same resolution, manifested by a sensible sign, and entailing obligations for at least one of the parties.4
Contracts stem from the social nature of man, who needs the help of his fellow men. He often gets it through an agreement in exchange for his own help. This is also the principal means of acquiring properties or rights.
Contracts can be classified in many ways. We are interested only in the following:
· A solemn contract fulfills all the formal requirements of positive law. A simple contract does not.
· An innominate contract is an exchange of goods and services without any fixed structure. It is extremely flexible and is usually divided into four types: (1) goods for goods--do ut des; (2) goods for services--do ut facias; (3) services for goods--facio ut des; and (4) services for services--facio ut facias.
· A nominate contract, on the other hand, has a fixed structure and also a fixed name, like the lease or insurance contracts. There are many kinds of nominate contracts, and their characteristics are established in great detail by the civil laws, which, as we know, bind in conscience when they are just. Some of these contracts are sale, lease, employment, partnership, deposit, donation, guaranty, mortgage, loan, and last will. Generally speaking, they can be classified into onerous contracts, which entail obligations for both parties, and gratuitous contracts, in which only one of the parties is obliged.
We cannot go into a detailed study of these types of contracts. This study should necessarily be brief and, therefore, not very explicit. Of greater interest, though, is the exposition of the general properties of contracts.
48c) Conditions for the Existence of a Contract
Four requisites are needed for the existence of a contract:
i) Suitable matter:
Any contract is a transfer of property or rights. All objects of ownership are thus suitable matter of a contract. The actual conditions for a matter to be suitable are the following:
· It must be possible, both physically and morally. The obligation of the contract disappears if its matter becomes impossible (for example, if what was pledged is lost).
· It must exist, either actually or potentially.
· It must belong to the contracting party.
· It must be morally good and lawful. Nobody can pledge something evil, and if someone has already done so, he is obliged to not fulfill it. In this case, the contract does not bind, or—to be precise—it is not a contract.
If the evil has already been done, however, the other party is bound to fulfill its part as long as it is something that is in itself lawful, like paying money. But civil laws often do not compel to fulfill this second part, and they may lawfully be followed in conscience.
ii) Qualified persons:
Any person who has the use of reason and is not prevented by law can validly make a contract.
iii) Legitimate consent:
In a contract, the consent must have the following properties:
· True, that is, internal. Whoever feigns consent is not bound in conscience to fulfill the contract, but is obliged to make reparation for the fraud. Nevertheless, in the external forum, what matters is the external manifestations, and he is bound to fulfill his obligations, unless he can prove that his consent was faked.
· Free and deliberate. It must have the freedom and deliberation that is generally required for an act to be properly human.
· Externally manifested. It is an act between persons or parties, and it can be known only if it is externally manifested.
· Mutual. Both parties must agree to the contract, but there is no need to do it simultaneously; it can be done by mail, for instance.
The consent may be vitiated in the following circumstances:
· Error or fraud. If referring to the substance of the contract, error or fraud make it invalid. If referring to an accidental aspect only, the contract is still valid, but the party suffering error or fraud is often entitled to rescind it.
· Violence. If it completely takes away freedom, the act is not human, and the contract is not valid. If freedom is not completely taken away, what is said below about fear applies.
· Fear. If it is strong enough to disturb the use of reason, the act is not free and the contract is not valid. If it is strong and due only to natural causes or just causes—that is, the one who is causing fear has the right to cause it—the contract is valid. If fear is strong and unjustly caused to compel the consent, the contract is valid in principle, but it can always be unilaterally rescinded. We say in principle because positive law often declares it radically invalid.
iv) Proper external form:
Ecclesiastical and civil positive laws often require certain formalities for contract, and those that do not fulfill them are declared invalid. This is the case of the ecclesiastical law on marriages, which requires the presence of the local ordinary or parish priest for the validity of the contract.5 These laws must be followed for the validity of the contract.
48d) Effects of the Contract
Every valid contract creates a true moral obligation to fulfill it. If the contract is made under oath, the latter does not add anything to the obligation of the contract in itself, but its non-fulfillment implies an additional sin against religion by violating the oath.
49. Unjust Appropriation
Theft can be defined as taking for oneself another’s property.6 This same sin is called robbery when committed in the presence of the owner and with violence or serious fear.
Robbery involves two injustices: a real injustice (as regards the property) and a personal one. It is thus much more grievous than theft, and its moral evil is of a different nature. The obligation to make restitution, however, is the same in both cases, as we shall see later on.
49a) The Nature of Theft
Theft is the secret taking away of property against the owner’s reasonable will.7 This definition includes the unjust retention of property: not paying debts, not returning borrowed property, keeping something out of fraud, and not returning what has been found to its owner.8
There is no theft if the owner consents to the taking away of his goods or objects only to the way in which it is done. Some parents, for example, are not bothered if their child takes some things from their possession, as long as it is not done by stealth.
In order for theft to occur, the opposition must be reasonable. Thus, a husband cannot reasonably object to his wife’s secretly taking what is needed for the support of the house. Neither can the owner object if some superfluous property of his is taken by someone in extreme necessity.
49b) Moral Evil of Theft
Theft is a mortal sin ex genere suo, that is, admitting slight matter (cf. Mt 19:18). Determining what constitutes a serious matter is no easy question. In principle, we could apply the same rule as for injustice in general. There is serious matter if a serious damage is inflicted, capable of causing grave and reasonable offense and indignation, or if society is seriously damaged by introducing a grave disorder.
In the first case, we speak of relative serious matter, since it depends on the wealth of the victim. Generally speaking, the amount that is needed to support the victim’s family for one day is considered a serious matter. In the second case, we have an absolute serious matter, which is even more difficult to determine.
Petty thefts are in themselves venial sins, but can become mortal by accumulation. This can happen from the very beginning, if the intention of the thief is to gradually gather a big sum. In that case, every petty theft is a mortal sin, since that intention is implicitly renewed. In confession, however, it is enough to say that one intended to steal a large sum through small repeated thefts. Actually, all these acts constitute a single moral act. There is also accumulation if several petty thefts happen within a relatively short time, adding up to a large amount.
Usually, petty thefts at home—and concretely those of small children—are not serious. Parents may resent their stealth, but they cannot oppose these misappropriations as much as they would in the case of strangers. In some cases, however, they may be a serious sin.
50. Extreme Need
In case of extreme necessity, one may lawfully take from another’s property what is necessary, and only what is necessary to relieve that need. This does not apply to merely grave need, and even less to ordinary need. It is not lawful, moreover, if it leaves the owner of the goods in an extreme need similar to that of the taker.
This case cannot be considered as a theft that the particular circumstances make tolerable. Properly speaking, there is no theft but mere appropriation; the owner of the goods cannot reasonably object.
51. Occult Compensation
If, because of fear or some other moral impediment, someone cannot openly claim what is strictly his, he may lawfully take it by stealth. This is not a theft, since whoever keeps the property cannot reasonably oppose its being recovered by the rightful owner. This action is called occult compensation. It is occult because it is done in a secret way, and it is compensation because, if the property cannot be recovered, one is entitled to recover something equivalent.
These are the conditions for the lawfulness of occult compensation:
· The debt must be strict, that is, it does not arise from mere congruence of convenience, but from strict justice. The title or act that caused it must be certain.
· There must be no other way to recover the debt without great inconvenience.
· Any possible harm to the debtor or to third parties must be avoided (for example, if somebody else may be suspected of theft).
These conditions would be met, for example, if employees are forced to perform tasks that are not included in the contract without being paid for it, or if they are forced to accept manifestly unjust wages.
Nevertheless, occult compensation should very seldom be availed of, and even less advised. There is a clear danger of not being objective in the appreciation of the exact amount and the strict right to the debt. It may, furthermore, bring many complications if it is discovered.
52. Games of Chance
Games of chance (card games, etc.) or wagers are not in themselves contrary to justice. They become morally unacceptable, however, when they deprive someone of what is necessary to provide for his needs and those of his family and others. The passion for gambling risks becoming an enslavement. Cheating at games constitutes grave matter, unless the damage inflicted is very slight.9
THE REPARATION OF INJUSTICE
53. Restitution in General
We have already alluded several times to the reparation of injustice. We will now study this subject in a more general way.
Restitution consists in returning something to its rightful owner.10 At times, this is not possible because of the nature of the object or because it has been lost. In these cases, we speak of compensation or reparation for the damage.
Generally speaking, therefore, restitution consists in returning the object or making good for the damage. From the point of view of morals, restitution is not the same as satisfaction; the latter refers to the person (apologizing), while restitution focuses on the object.
The duty of restitution arises especially from violations of commutative justice, in which there is a perfect equality between thing and thing, between what is given and what is received, between the damage and its reparation.11
Sometimes, violations of distributive or legal justice also entail the obligation of restitution, even if there is no real equality but only proportionality. This is especially the case when the infraction also violates commutative justice. For example, tax evasion may cause damage to others if they have to pay more taxes in consequence.
If there is no way to restore something that is equivalent to what was lost (health, for example), the damage must be repaired through other means, insofar it is possible.12
Restitution—returning the unjustly taken or retained property, repairing the unjust damage—or the desire and the firm resolution of doing it as soon as possible are absolutely necessary for the forgiveness of the corresponding sin (cf. Ex 22:5; Ez 33:14–15).13 If, due to the importance of the damage, the sin is mortal, restitution—or the effective desire of doing it—is therefore absolutely necessary as a means for salvation.
The obligation of restitution arises from two causes: unjust damage and possession of another’s property. Sometimes, the problems that are posed by this obligation are rather complex. We will give only some general guidelines. If doubts arise in practical cases, the best solution is to seek qualified advice and study the situation in detail.
54. Unjust Appropriation and Restitution
Restitution, whenever possible, is absolutely necessary for the forgiveness of the sin of theft, whether it be mortal or venial. Any person who, being able to repair the injustice that was committed, refuses to do so, shows lack of repentance, and repentance is an essential condition for the forgiveness of sin. If the theft is a venial sin, it simply remains unforgiven. If it is mortal, however, the confession would be invalid, and all other sins remain unforgiven.
Some cases of unjust retention are much more complex than simple theft. In most instances, the following juridical axiom can be used as a rule of thumb: The property calls for its owner, and fructifies or perishes for him; besides, no one can enrich himself at the expense of another.
However, this applies differently depending on the good or bad faith of the possessor. Somebody may hold another’s property in good faith, when he honestly thinks that it is his; in bad faith, when he knows that it is not; or in doubt, when he is not certain about it.
If the possessor in good faith realizes that the property is not his own, he must return it to its rightful owner. He is not bound to make restitution if the property was lost or consumed. According to the most common opinion, he may keep the fruits. Possession in good faith, moreover, may eventually lead to real ownership. This is called prescription, as we saw earlier.
The possessor in bad faith must make restitution for all the damages that were caused. He must return the property or, if it has been lost, its equivalent value. He may keep only the fruits that proceed from his own work, for which the retained property was merely an instrument. Besides making restitution for the actual damages that were caused, he is bound to compensate for the lost income. The latter, however, requires only restitution to the extent that it is certain and was at least vaguely foreseen. The possessor in doubt has the following obligations:
· If the doubt arises after taking possession, he must try to solve the doubt. If he is not able to dispel it, he may keep the property. But he is bound to return it if the rightful owner appears later on.
· If the doubt already existed when he took possession and he cannot dispel it later, he is probably bound to make a proportional compensation. If he took the property away from somebody else while still in doubt, he certainly committed an injustice and is bound to return it, even if the doubt still persists.
55. Unjust Damages and their Reparation
Unjust damage implies the obligation of restitution if it is formal—that is, if it is known and wanted as such—if it is really unjust, and if it effectively causes damage.
In order to be formal, the damage must be truly unjust. It must violate commutative justice or the strict right of another, either real or personal. Some actions may be grievously sinful and cause serious damage without violating justice; these do not require restitution.
It must also really cause the damage, that is, it must be by itself the efficient cause of the damage, and not just the occasion, an accidental cause, or a necessary condition.
If both the damage and the guilt are serious, the obligation of restitution is also serious.
If the damage is slight, the guilt is always slight, and the obligation of restitution is also slight. But, just as with petty theft, this venial sin is not forgiven as long as restitution, whenever possible, is not done.
If the guilt is slight but the damage is serious, the question is difficult to answer. The common opinion among theologians is that partial restitution is required, or none in some cases. Nevertheless, this case is rather uncommon: If the damage is serious, the guilt will presumably be serious as well.
No obligation of restitution arises from a material or involuntary damage—an involuntary action does not entail responsibility. In other words, if there is no sin in the infliction of the damage, there is no obligation of restitution.
However, one is obliged to make restitution if a judge orders it. Civil laws can reasonably require restitution. This fosters the common good and makes people more careful in their actions. Obligation to make restitution also arises from a free agreement, as is the case in the insurance contracts.
56. Restitution of Damaged Good Reputation
In the case of defamation, the defamer is obliged to make restitution in order to restore the good reputation.14 This falls under the general rules for unjust damages. Thus, he has to repair the damage as soon as possible. The damages resulting from defamation include the loss of good esteem and the resulting material damages insofar as they were foreseen in at least a vague manner.
In the case of calumny, the restitution of good esteem requires a public and effective rectification. Thus, if the calumny was published by the media, the rectification has to be published as well.
In the case of a simple detraction, rectification is evidently impossible, since what was said is the truth. The detractor must use all lawful means to excuse the unjustly revealed fault, praise the good qualities of the injured party, or do whatever else he can.
In both cases, the practical difficulty of restoring lost reputation underscores the malice of defamation. Stolen goods are easily returned in full; lost reputation is hardly so. Reasons that excuse from the need to make restitution are:
· no damage ensued from the defamation because, for example, nobody believed it;
· the defamation has been forgotten through passing of time;
· the defamed has condoned reparation either expressly or tacitly;
· restitution is morally or physically impossible.
57. Restitution of Some Special Damages
If a child is born of a sexual assault, the offender is bound to shoulder the child’s support and education. If the other party was a willing partner, both accomplices share the obligation. If one refuses, the other is bound to meet in full the expenses.
A man who seduces a woman under promise of marriage, whether feigned or real, is usually obliged to marry her. This obligation, however, may disappear in many cases, such as if, for example, it can be reasonably presumed that the marriage would cause serious evils.
58. Cooperation in Unjust Damage and its Reparation
Unjust damage is often caused by an action in which several persons cooperated. This can take place in different ways:
· Positive cooperation may be given by doing something: command, counsel, consent, flattery, cover up, or participation.
· Negative cooperation implies a failure to do one’s duty: silence, failure to prevent the harm, or concealment.
As in the case of unjust damage in general, those who cooperate to inflict damage are bound to repair the harm if their cooperation is formal. This means that it is truly unjust and actually causes damage.15 In the case of material cooperation, there is no obligation unless a judge’s sentence or a voluntary agreement calls for restitution.
The following principles apply to the restitution of damages that are caused by several agents:
· The main agent of all damages, whom all the others merely assisted, is bound to repair the whole damage.16
· Whoever cooperates with others to cause the whole damage may count on their help for the reparation. If they refuse, however, he himself is bound to repair all the damage.
· If a person—acting with others but without previous conspiracy—causes part of the damage, he must make restitution in proportion to his participation in the total damage.
· If all the participants cooperated in the damage in the same way and degree, each is bound to make restitution for an equal share, regardless of what the others do. Thus, if five persons steal five million dollars, each has to return one million even if the others do not.
· If the participants cooperated in different ways and degrees, they are bound to make restitution in the following order: (1) whoever keeps the stolen property; (2) the person who ordered the deed and, in some cases, the inducer or adviser; (3) the person who executed it; (4) the other participants who positively cooperated; and (5) those who negatively cooperated by not opposing the action.
59. The Manner and Circumstances of Restitution
In making restitution, three principles must be followed:
i) Restitution has to be made to the victim of the injustice or to his heirs. If the victim is unknown, inquiries must be made. If the victim is not discovered thereby, the person who is keeping something in bad faith must give it to the poor.
ii) Restitution is to be made as soon as possible. Certainly, it cannot be postponed until the moment of death.
iii) Reparation of the injustice is enough for restitution. There is no need to let oneself be known as the author.
60. Causes Excusing from Restitution
(1) Causes postponing restitution
· Temporary impossibility to make restitution
· Surrender of the debtor’s property, by order of the court or in an out-of-court settlement, to be distributed to the creditors in proportion to their debts—such cases are usually regulated by civil law, which may be followed in conscience
(2) Causes absolving from restitution
· Condonation by the creditor, either expressed or reasonably presumed
· Prescription, in the case of a possessor in good faith, if and when it takes place
Footnotes:
1. Cf. CCC, 2402–2406.
2. Cf. ST, II-II, q. 66, a. 2.
3. Cf. GS, 71.
4. Cf. CCC, 2410–2412.
5. Cf. CIC 1108ff.
6. Cf. CCC, 2408–2409.
7. Cf. ST, II-II, q. 66, a. 3.
8. Cf. Ibid., II-II, q. 66, a. 3 ad 2.
9. Cf. CCC, 2413.
10. Cf. Ibid., 1459, 2412.
11. Cf. ST, II-II, q. 61, a. 2.
12. Cf. Ibid., II-II, q. 62, a. 2 ad 1.
13. Cf. Ibid., II-II, q. 62, a. 2.
14. Cf. CCC, 2487.
15. Cf. DS 2139.
16. Cf. ST, II-II, q. 62, a. 7 ad 2.