HKB
Thirdly retaliation is transferred to voluntary commutations, where action and passion are on both sides, although voluntariness detracts from the nature of passion, as stated above (Q. 59, A. 3).
In all these cases, however, repayment must be made on a basis of equality according to the requirements of commutative justice, namely that the meed of passion be equal to the action. Now there would not always be equality if passion were in the same species as the action. Because, in the first place, when a person injures the person of one who is greater, the action surpasses any passion of the same species that he might undergo, wherefore he that strikes a prince, is not only struck back, but is much more severely punished. In like manner when a man despoils another of his property against the latter's will, the action surpasses the passion if he be merely deprived of that thing, because the man who caused another's loss, himself would lose nothing, and so he is punished by making restitution several times over, because not only did he injure a private individual, but also the common weal, the security of whose protection he has infringed. Nor again would there be equality of passion in voluntary commutations, were one always to exchange one's chattel for another man's, because it might happen that the other man's chattel is much greater than our own: so that it becomes necessary to equalize passion and action in commutations according to a certain proportionate commensuration, for which purpose money was invented. Hence retaliation is in accordance with commutative justice: but there is no place for it in distributive justice, because in distributive justice we do not consider the equality between thing and thing or between passion and action (whence the expression contrapassum), but according to proportion between things and persons, as stated above (A. 2).
Reply Obj. 1: This form of the Divine judgment is in accordance with the conditions of commutative justice, in so far as rewards are apportioned to merits, and punishments to sins.
Reply Obj. 2: When a man who has served the community is paid for his services, this is to be referred to commutative, not distributive, justice. Because distributive justice considers the equality, not between the thing received and the thing done, but between the thing received by one person and the thing received by another according to the respective conditions of those persons.
Reply Obj. 3: When the injurious action is voluntary, the injury is aggravated and consequently is considered as a greater thing. Hence it requires a greater punishment in repayment, by reason of a difference, not on our part, but on the part of the thing.
QUESTION 62
OF RESTITUTION (In Eight Articles)
We must now consider restitution, under which head there are eight points of inquiry:
(1) Of what is it an act?
(2) Whether it is always of necessity for salvation to restore what one has taken away?
(3) Whether it is necessary to restore more than has been taken away?
(4) Whether it is necessary to restore what one has not taken away?
(5) Whether it is necessary to make restitution to the person from whom something has been taken?
(6) Whether the person who has taken something away is bound to restore it?
(7) Whether any other person is bound to restitution?
(8) Whether one is bound to restore at once?
FIRST ARTICLE [II-II, Q. 62, Art. 1]
Whether Restitution Is an Act of Commutative Justice?
Objection 1: It would seem that restitution is not an act of commutative justice. For justice regards the notion of what is due. Now one may restore, even as one may give, that which is not due. Therefore restitution is not the act of any part of justice.