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Summa Theologiae/Second Part of the Second Part/Question 62

Question. 62 - OF RESTITUTION (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?

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.

Objection 2: Further, that which has passed away and is no more cannot be restored. Now justice and injustice are about certain actions and passions, which are unenduring and transitory. Therefore restitution would not seem to be the act of a part of justice.

Objection 3: Further, restitution is repayment of something taken away. Now something may be taken away from a man not only in commutation, but also in distribution, as when, in distributing, one gives a man less than his due. Therefore restitution is not more an act of commutative than of distributive justice.

On the contrary, Restitution is opposed to taking away. Now it is an act of commutative injustice to take away what belongs to another. Therefore to restore it is an act of that justice which directs commutations.

I answer that, To restore is seemingly the same as to reinstate a person in the possession or dominion of his thing, so that in restitution we consider the equality of justice attending the payment of one thing for another, and this belongs to commutative justice. Hence restitution is an act of commutative justice, occasioned by one person having what belongs to another, either with his consent, for instance on loan or deposit, or against his will, as in robbery or theft.

Reply to Objection 1: That which is not due to another is not his properly speaking, although it may have been his at some time: wherefore it is a mere gift rather than a restitution, when anyone renders to another what is not due to him. It is however somewhat like a restitution, since the thing itself is materially the same; yet it is not the same in respect of the formal aspect of justice, which considers that thing as belonging to this particular man: and so it is not restitution properly so called.

Reply to Objection 2: In so far as the word restitution denotes something done over again, it implies identity of object. Hence it would seem originally to have applied chiefly to external things, which can pass from one person to another, since they remain the same both substantially and in respect of the right of dominion. But, even as the term "commutation" has passed from such like things to those actions and passions which confer reverence or injury, harm or profit on another person, so too the term "restitution" is applied, to things which though they be transitory in reality, yet remain in their effect; whether this touch his body, as when the body is hurt by being struck, or his reputation, as when a man remains defamed or dishonored by injurious words.

Reply to Objection 3: Compensation is made by the distributor to the man to whom less was given than his due, by comparison of thing with thing, when the latter receives so much the more according as he received less than his due: and consequently it pertains to commutative justice.

Art. 2 - Whether restitution of what has been taken away is necessary for salvation?
Objection 1: It would seem that it is not necessary to restore what has been taken away. For that which is impossible is not necessary for salvation. But sometimes it is impossible to restore what has been taken, as when a man has taken limb or life. Therefore it does not seem necessary for salvation to restore what one has taken from another.

Objection 2: Further, the commission of a sin is not necessary for salvation, for then a man would be in a dilemma. But sometimes it is impossible, without sin, to restore what has been taken, as when one has taken away another's good name by telling the truth. Therefore it is not necessary for salvation to restore what one has taken from another.

Objection 3: Further, what is done cannot be undone. Now sometimes a man loses his personal honor by being unjustly insulted. Therefore that which has been taken from him cannot be restored to him: so that it is not necessary for salvation to restore what one has taken.

Objection 4: Further, to prevent a person from obtaining a good thing is seemingly the same as to take it away from him, since "to lack little is almost the same as to lack nothing at all," as the Philosopher says (Phys. ii, 5). Now when anyone prevents a man from obtaining a benefice or the like, seemingly he is not bound to restore the benefice, since this would be sometimes impossible. Therefore it is not necessary for salvation to restore what one has taken.

On the contrary, Augustine says (Ep. ad Maced. cxliii): "Unless a man restore what he has purloined, his sin is not forgiven."

I answer that, Restitution as stated above (A[1]) is an act of commutative justice, and this demands a certain equality. Wherefore restitution denotes the return of the thing unjustly taken; since it is by giving it back that equality is reestablished. If, however, it be taken away justly, there will be equality, and so there will be no need for restitution, for justice consists in equality. Since therefore the safeguarding of justice is necessary for salvation, it follows that it is necessary for salvation to restore what has been taken unjustly.

Reply to Objection 1: When it is impossible to repay the equivalent, it suffices to repay what one can, as in the case of honor due to God and our parents, as the Philosopher states (Ethic. viii, 14). Wherefore when that which has been taken cannot be restored in equivalent, compensation should be made as far as possible: for instance if one man has deprived another of a limb, he must make compensation either in money or in honor, the condition of either party being duly considered according to the judgment of a good man.

Reply to Objection 2: There are three ways in which one may take away another's good name. First, by saying what is true, and this justly, as when a man reveals another's sin, while observing the right order of so doing, and then he is not bound to restitution. Secondly, by saying what is untrue and unjustly, and then he is bound to restore that man's good name, by confessing that he told an untruth. Thirdly, by saying what is true, but unjustly, as when a man reveals another's sin contrarily to the right order of so doing, and then he is bound to restore his good name as far as he can, and yet without telling an untruth; for instance by saying that he spoke ill, or that he defamed him unjustly; or if he be unable to restore his good name, he must compensate him otherwise, the same as in other cases, as stated above (ad 1).

Reply to Objection 3: The action of the man who has defamed another cannot be undone, but it is possible, by showing him deference, to undo its effect, viz. the lowering of the other man's personal dignity in the opinion of other men.

Reply to Objection 4: There are several ways of preventing a man from obtaining a benefice. First, justly: for instance, if having in view the honor of God or the good of the Church, one procures its being conferred on a more worthy subject, and then there is no obligation whatever to make restitution or compensation. Secondly, unjustly, if the intention is to injure the person whom one hinders, through hatred, revenge or the like. In this case, if before the benefice has been definitely assigned to anyone, one prevents its being conferred on a worthy subject by counseling that it be not conferred on him, one is bound to make some compensation, after taking account of the circumstances of persons and things according to the judgment of a prudent person: but one is not bound in equivalent, because that man had not obtained the benefice and might have been prevented in many ways from obtaining it. If, on the other hand, the benefice had already been assigned to a certain person, and someone, for some undue cause procures its revocation, it is the same as though he had deprived a man of what he already possessed, and consequently he would be bound to compensation in equivalent, in proportion, however, to his means.

Art. 3 - Whether it suffices to restore the exact amount taken?
Objection 1: It would seem that it is not sufficient to restore the exact amount taken. For it is written (Ex. 22:1): "If a man shall steal an ox or a sheep and kill or sell it, he shall restore five oxen for one ox, and four sheep for one sheep." Now everyone is bound to keep the commandments of the Divine law. Therefore a thief is bound to restore four- or fivefold.

Objection 2: Further, "What things soever were written, were written for our learning" (Rom. 15:4). Now Zachaeus said (Lk. 19:8) to our Lord: "If I have wronged any man of any thing, I restore him fourfold." Therefore a man is bound to restore several times over the amount he has taken unjustly.

Objection 3: Further, no one can be unjustly deprived of what he is not bound to give. Now a judge justly deprives a thief of more than the amount of his theft, under the head of damages. Therefore a man is bound to pay it, and consequently it is not sufficient to restore the exact amount.

On the contrary, Restitution re-establishes equality where an unjust taking has caused inequality. Now equality is restored by repaying the exact amount taken. Therefore there is no obligation to restore more than the exact amount taken.

I answer that, When a man takes another's thing unjustly, two things must be considered. One is the inequality on the part of the thing, which inequality is sometimes void of injustice, as is the case in loans. The other is the sin of injustice, which is consistent with equality on the part of the thing, as when a person intends to use violence but fails.

As regards the first, the remedy is applied by making restitution, since thereby equality is re-established; and for this it is enough that a man restore just so much as he has belonging to another. But as regards the sin, the remedy is applied by punishment, the infliction of which belongs to the judge: and so, until a man is condemned by the judge, he is not bound to restore more than he took, but when once he is condemned, he is bound to pay the penalty.

Hence it is clear how to answer the First Objection: because this law fixes the punishment to be inflicted by the judge. Nor is this commandment to be kept now, because since the coming of Christ no man is bound to keep the judicial precepts, as stated above (FS, Q[104], A[3]). Nevertheless the same might be determined by human law, and then the same answer would apply.

Reply to Objection 2: Zachaeus said this being willing to do more than he was bound to do; hence he had said already: "Behold . . . the half of my goods I give to the poor."

Reply to Objection 3: By condemning the man justly, the judge can exact more by way of damages; and yet this was not due before the sentence.

Art. 4 - Whether a man is bound to restore what he has not taken?
Objection 1: It would seem that a man is bound to restore what he has not taken. For he that has inflicted a loss on a man is bound to remove that loss. Now it happens sometimes that the loss sustained is greater than the thing taken: for instance, if you dig up a man's seeds, you inflict on the sower a loss equal to the coming harvest, and thus you would seem to be bound to make restitution accordingly. Therefore a man is bound to restore what he has not taken.

Objection 2: Further, he who retains his creditor's money beyond the stated time, would seem to occasion his loss of all his possible profits from that money, and yet he does not really take them. Therefore it seems that a man is bound to restore what he did not take.

Objection 3: Further, human justice is derived from Divine justice. Now a man is bound to restore to God more than he has received from Him, according to Mat. 25:26, "Thou knewest that I reap where I sow not, and gather where I have not strewed." Therefore it is just that one should restore to a man also, something that one has not taken.

On the contrary, Restitution belongs to justice, because it re-establishes equality. But if one were to restore what one did not take, there would not be equality. Therefore it is not just to make such a restitution.

I answer that, Whoever brings a loss upon another person, seemingly, takes from him the amount of the loss, since, according to the Philosopher (Ethic. v, 4) loss is so called from a man having "less"* than his due. [*The derivation is more apparent in English than in Latin, where 'damnum' stands for 'loss,' and 'minus' for 'less.' Aristotle merely says that to have more than your own is called 'gain,' and to have less than you started with is called 'loss.'] Therefore a man is bound to make restitution according to the loss he has brought upon another.

Now a man suffers a loss in two ways. First, by being deprived of what he actually has; and a loss of this kind is always to be made good by repayment in equivalent: for instance if a man damnifies another by destroying his house he is bound to pay him the value of the house. Secondly, a man may damnify another by preventing him from obtaining what he was on the way to obtain. A loss of this kind need not be made good in equivalent; because to have a thing virtually is less than to have it actually, and to be on the way to obtain a thing is to have it merely virtually or potentially, and so were he to be indemnified by receiving the thing actually, he would be paid, not the exact value taken from him, but more, and this is not necessary for salvation, as stated above. However he is bound to make some compensation, according to the condition of persons and things.

From this we see how to answer the First and Second Objections: because the sower of the seed in the field, has the harvest, not actually but only virtually. In like manner he that has money has the profit not yet actually but only virtually: and both may be hindered in many ways.

Reply to Objection 3: God requires nothing from us but what He Himself has sown in us. Hence this saying is to be understood as expressing either the shameful thought of the lazy servant, who deemed that he had received nothing from the other, or the fact that God expects from us the fruit of His gifts, which fruit is from Him and from us, although the gifts themselves are from God without us.

Art. 5 - Whether restitution must always be made to the person from whom a thing has been taken?
Objection 1: It would seem that restitution need not always be made to the person from whom a thing has been taken. For it is not lawful to injure anyone. Now it would sometimes be injurious to the man himself, or to others, were one to restore to him what has been taken from him; if, for instance, one were to return a madman his sword. Therefore restitution need not always be made to the person from whom a thing has been taken.

Objection 2: Further, if a man has given a thing unlawfully, he does not deserve to recover it. Now sometimes a man gives unlawfully that which another accepts unlawfully, as in the case of the giver and receiver who are guilty of simony. Therefore it is not always necessary to make restitution to the person from whom one has taken something.

Objection 3: Further, no man is bound to do what is impossible. Now it is sometimes impossible to make restitution to the person from whom a thing has been taken, either because he is dead, or because he is too far away, or because he is unknown to us. Therefore restitution need not always be made to the person from whom a thing has been taken.

Objection 4: Further, we owe more compensation to one from whom we have received a greater favor. Now we have received greater favors from others (our parents for instance) than from a lender or depositor. Therefore sometimes we ought to succor some other person rather than make restitution to one from whom we have taken something.

Objection 5: Further, it is useless to restore a thing which reverts to the restorer by being restored. Now if a prelate has unjustly taken something from the Church and makes restitution to the Church, it reverts into his hands, since he is the guardian of the Church's property. Therefore he ought not to restore to the Church from whom he has taken: and so restitution should not always be made to the person from whom something has been taken away

On the contrary, It is written (Rom. 13:7): "Render . . . to all men their dues; tribute to whom tribute is due, custom to whom custom."

I answer that, Restitution re-establishes the equality of commutative justice, which equality consists in the equalizing of thing to thing, as stated above (A[2]; Q[58], A[10]). Now this equalizing of things is impossible, unless he that has less than his due receive what is lacking to him: and for this to be done, restitution must be made to the person from whom a thing has been taken.

Reply to Objection 1: When the thing to be restored appears to be grievously injurious to the person to whom it is to be restored, or to some other, it should not be restored to him there and then, because restitution is directed to the good of the person to whom it is made, since all possessions come under the head of the useful. Yet he who retains another's property must not appropriate it, but must either reserve it, that he may restore it at a fitting time, or hand it over to another to keep it more securely.

Reply to Objection 2: A person may give a thing unlawfully in two ways. First through the giving itself being illicit and against the law, as is the case when a man gives a thing simoniacally. Such a man deserves to lose what he gave, wherefore restitution should not be made to him: and, since the receiver acted against the law in receiving, he must not retain the price, but must use it for some pious object. Secondly a man gives unlawfully, through giving for an unlawful purpose, albeit the giving itself is not unlawful, as when a woman receives payment for fornication: wherefore she may keep what she has received. If, however, she has extorted overmuch by fraud or deceit, she would be bound to restitution.

Reply to Objection 3: If the person to whom restitution is due is unknown altogether, restitution must be made as far as possible, for instance by giving an alms for his spiritual welfare (whether he be dead or living): but not without previously making a careful inquiry about his person. If the person to whom restitution is due be dead, restitution should be made to his heir, who is looked upon as one with him. If he be very far away, what is due to him should be sent to him, especially if it be of great value and can easily be sent: else it should be deposited in a safe place to be kept for him, and the owner should be advised of the fact.

Reply to Objection 4: A man is bound, out of his own property, to succor his parents, or those from whom he has received greater benefits; but he ought not to compensate a benefactor out of what belongs to others; and he would be doing this if he were to compensate one with what is due to another. Exception must be made in cases of extreme need, for then he could and should even take what belongs to another in order to succor a parent.

Reply to Objection 5: There are three ways in which a prelate can rob the Church of her property. First by laying hands on Church property which is committed, not to him but to another; for instance, if a bishop appropriates the property of the chapter. In such a case it is clear that he is bound to restitution, by handing it over to those who are its lawful owners. Secondly by transferring to another person (for instance a relative or a friend) Church property committed to himself: in which case he must make restitution to the Church, and have it under his own care, so as to hand it over to his successor. Thirdly, a prelate may lay hands on Church property, merely in intention, when, to wit, he begins to have a mind to hold it as his own and not in the name of the Church: in which case he must make restitution by renouncing his intention.

Art. 6 - Whether he that has taken a thing is always bound to restitution?
Objection 1: It would seem that he who has taken a thing is not always bound to restore it. Restitution re-establishes the equality of justice, by taking away from him that has more and giving to him that has less. Now it happens sometimes that he who has taken that which belongs to another, no longer has it, through its having passed into another's hands. Therefore it should be restored, not by the person that took it, but by the one that has it.

Objection 2: Further, no man is bound to reveal his own crime. But by making restitution a man would sometimes reveal his crime, as in the case of theft. Therefore he that has taken a thing is not always bound to restitution.

Objection 3: Further, the same thing should not be restored several times. Now sometimes several persons take a thing at the same time, and one of them restores it in its entirety. Therefore he that takes a thing is not always bound to restitution.

On the contrary, He that has sinned is bound to satisfaction. Now restitution belongs to satisfaction. Therefore he that has taken a thing is bound to restore it.

I answer that, With regard to a man who has taken another's property, two points must be considered: the thing taken, and the taking. By reason of the thing taken, he is bound to restore it as long as he has it in his possession, since the thing that he has in addition to what is his, should be taken away from him, and given to him who lacks it according to the form of commutative justice. On the other hand, the taking of the thing that is another's property, may be threefold. For sometimes it is injurious, i.e. against the will of the owner, as in theft and robbery: in which case the thief is bound to restitution not only by reason of the thing, but also by reason of the injurious action, even though the thing is no longer in his possession. For just as a man who strikes another, though he gain nothing thereby, is bound to compensate the injured person, so too he that is guilty of theft or robbery, is bound to make compensation for the loss incurred, although he be no better off; and in addition he must be punished for the injustice committed. Secondly, a man takes another's property for his own profit but without committing an injury, i.e. with the consent of the owner, as in the case of a loan: and then, the taker is bound to restitution, not only by reason of the thing, but also by reason of the taking, even if he has lost the thing: for he is bound to compensate the person who has done him a favor, and he would not be doing so if the latter were to lose thereby. Thirdly, a man takes another's property without injury to the latter or profit to himself, as in the case of a deposit; wherefore he that takes a thing thus, incurs no obligation on account of the taking, in fact by taking he grants a favor; but he is bound to restitution on account of the thing taken. Consequently if this thing be taken from him without any fault on his part, he is not bound to restitution, although he would be, if he were to lose the thing through a grievous fault on his part.

Reply to Objection 1: The chief end of restitution is, not that he who has more than his due may cease to have it, but that he who has less than his due may be compensated. Wherefore there is no place for restitution in those things which one man may receive from another without loss to the latter, as when a person takes a light from another's candle. Consequently although he that has taken something from another, may have ceased to have what he took, through having transferred it to another, yet since that other is deprived of what is his, both are bound to restitution, he that took the thing, on account of the injurious taking, and he that has it, on account of the thing.

Reply to Objection 2: Although a man is not bound to reveal his crime to other men, yet is he bound to reveal it to God in confession; and so he may make restitution of another's property through the priest to whom he confesses.

Reply to Objection 3: Since restitution is chiefly directed to the compensation for the loss incurred by the person from whom a thing has been taken unjustly, it stands to reason that when he has received sufficient compensation from one, the others are not bound to any further restitution in his regard: rather ought they to refund the person who has made restitution, who, nevertheless, may excuse them from so doing.

Art. 7 - Whether restitution is binding on those who have not taken?
Objection 1: It would seem that restitution is not binding on those who have not taken. For restitution is a punishment of the taker. Now none should be punished except the one who sinned. Therefore none are bound to restitution save the one who has taken.

Objection 2: Further, justice does not bind one to increase another's property. Now if restitution were binding not only on the man who takes a thing but also on all those who cooperate with him in any way whatever, the person from whom the thing was taken would be the gainer, both because he would receive restitution many times over, and because sometimes a person cooperates towards a thing being taken away from someone, without its being taken away in effect. Therefore the others are not bound to restitution.

Objection 3: Further, no man is bound to expose himself to danger, in order to safeguard another's property. Now sometimes a man would expose himself to the danger of death, were he to betray a thief, or withstand him. Therefore one is not bound to restitution, through not betraying or withstanding a thief.

On the contrary, It is written (Rom. 1:32): "They who do such things are worthy of death, and not only they that do them, but also they that consent to them that do them." Therefore in like manner they that consent are bound to restitution.

I answer that, As stated above (A[6]), a person is bound to restitution not only on account of someone else's property which he has taken, but also on account of the injurious taking. Hence whoever is cause of an unjust taking is bound to restitution. This happens in two ways, directly and indirectly. Directly, when a man induces another to take, and this in three ways. First, on the part of the taking, by moving a man to take, either by express command, counsel, or consent, or by praising a man for his courage in thieving. Secondly, on the part of the taker, by giving him shelter or any other kind of assistance. Thirdly, on the part of the thing taken, by taking part in the theft or robbery, as a fellow evil-doer. Indirectly, when a man does not prevent another from evil-doing (provided he be able and bound to prevent him), either by omitting the command or counsel which would hinder him from thieving or robbing, or by omitting to do what would have hindered him, or by sheltering him after the deed. All these are expressed as follows:

"By command, by counsel, by consent, by flattery, by receiving, by participation, by silence, by not preventing, by not denouncing."

It must be observed, however, that in five of these cases the cooperator is always bound to restitution. First, in the case of command: because he that commands is the chief mover, wherefore he is bound to restitution principally. Secondly, in the case of consent; namely of one without whose consent the robbery cannot take place. Thirdly, in the case of receiving; when, to wit, a man is a receiver of thieves, and gives them assistance. Fourthly, in the case of participation; when a man takes part in the theft and in the booty. Fifthly, he who does not prevent the theft, whereas he is bound to do so; for instance, persons in authority who are bound to safeguard justice on earth, are bound to restitution, if by their neglect thieves prosper, because their salary is given to them in payment of their preserving justice here below.

In the other cases mentioned above, a man is not always bound to restitution: because counsel and flattery are not always the efficacious cause of robbery. Hence the counsellor or flatterer is bound to restitution, only when it may be judged with probability that the unjust taking resulted from such causes.

Reply to Objection 1: Not only is he bound to restitution who commits the sin, but also he who is in any way cause of the sin, whether by counselling, or by commanding, or in any other way whatever.

Reply to Objection 2: He is bound chiefly to restitution, who is the principal in the deed; first of all, the "commander"; secondly, the "executor," and in due sequence, the others: yet so that, if one of them make restitution, another is not bound to make restitution to the same person. Yet those who are principals in the deed, and who took possession of the thing, are bound to compensate those who have already made restitution. When a man commands an unjust taking that does not follow, no restitution has to be made, since its end is chiefly to restore the property of the person who has been unjustly injured.

Reply to Objection 3: He that fails to denounce a thief or does not withstand or reprehend him is not always bound to restitution, but only when he is obliged, in virtue of his office, to do so: as in the case of earthly princes who do not incur any great danger thereby; for they are invested with public authority, in order that they may maintain justice.

Art. 8 - Whether a man is bound to immediate restitution, or may he put it off?
Objection 1: It would seem that a man is not bound to immediate restitution, and can lawfully delay to restore. For affirmative precepts do not bind for always. Now the necessity of making restitution is binding through an affirmative precept. Therefore a man is not bound to immediate restitution.

Objection 2: Further, no man is bound to do what is impossible. But it is sometimes impossible to make restitution at once. Therefore no man is bound to immediate restitution.

Objection 3: Further, restitution is an act of virtue, viz. of justice. Now time is one of the circumstances requisite for virtuous acts. Since then the other circumstances are not determinate for acts of virtue, but are determinable according to the dictate of prudence, it seems that neither in restitution is there any fixed time, so that a man be bound to restore at once.

On the contrary, All matters of restitution seem to come under one head. Now a man who hires the services of a wage-earner, must not delay compensation, as appears from Lev. 19:13, "The wages of him that hath been hired by thee shall not abide with thee until the morning." Therefore neither is it lawful, in other cases of restitution, to delay, and restitution should be made at once.

I answer that, Even as it is a sin against justice to take another's property, so also is it to withhold it, since, to withhold the property of another against the owner's will, is to deprive him of the use of what belongs to him, and to do him an injury. Now it is clear that it is wrong to remain in sin even for a short time; and one is bound to renounce one's sin at once, according to Ecclus. 21:2, "Flee from sin as from the face of a serpent." Consequently one is bound to immediate restitution, if possible, or to ask for a respite from the person who is empowered to grant the use of the thing.

Reply to Objection 1: Although the precept about the making of restitution is affirmative in form, it implies a negative precept forbidding us to withhold another's property.

Reply to Objection 2: When one is unable to restore at once, this very inability excuses one from immediate restitution: even as a person is altogether excused from making restitution if he is altogether unable to make it. He is, however, bound either himself or through another to ask the person to whom he owes compensation to grant him a remission or a respite.

Reply to Objection 3: Whenever the omission of a circumstance is contrary to virtue that circumstance must be looked upon as determinate, and we are bound to observe it: and since delay of restitution involves a sin of unjust detention which is opposed to just detention, it stands to reason that the time is determinate in the point of restitution being immediate


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Page:United States Statutes at Large Volume 92 Part 1.djvu/118

 92 STAT. 64

Federal participation termination, determination.

Notification to borrower.

Additional fee.

Recommendations from Attorney General and FTC Chairman.

Referral to President. Written determination.

Location, notification to State Governors and officials. Recommendations.

Written communication.

Judicial review.

PUBLIC LAW 95-238—FEB. 25, 1978 "(8) the obligation provides for the orderly and ratable retirement of the obligation and includes sinking fund provisions, installment payment provisions or other methods of payments and reserves as may be reasonably required by the Administrator. Prior to approving any repayment schedule the Administrator may consider the date on which operating revenues are anticipated to be generated by the project. To the maximum extent possible repayment or provision therefor shall be required to be made in equal payments payable at equal intervals; and "(9) the obligation provides that the Administrator shall, after a period of not less than ten years from issuance of the obligation, taking into consideration whether the Government's needs for information to be derived from the project have been substantially met and whether the project is capable of commercial operation, determine the feasibility and advisability of terminating the Federal participation in the project. In the event that such determination is positive, the Administrator shall notify the borrower and provide the borrower with not less than two nor more than three years in which to find alternative financing. At the expiration of the designated period of time, if the borrower has been unable to secure alternative financing, the Administrator is authorized to collect from the borrower an additional fee of 1 per centum per annum on the remaining obligation to which the Federal guarantee applies. "(d) Prior to submitting a report to Congress pursuant to subsection (m) of this section on each guarantee and cooperative agreement, the Administrator shall request from the Attorney General and the Chairman of the Federal Trade Commission written views, comments, and recommendations concerning the impact of such guarantee or commitment or agreement on competition and concentration in the production of energy and give due consideration to views, comments, and recommendations received: Provided, That if either official, within sixty days after receipt of such request or at any time prior to the Administrator submitting such report to Congress, recommends against making such guarantee or commitment or agreement, the proposed guarantee or commitment or agreement shall be referred to the President, and the Administrator shall not do so unless the President determines in writing that such guarantee or commitment or agreement is in the national interest. "(e)(1) As soon as the Administrator knows the geographic location of a proposed facility for which a guarantee or a commitment to guarantee or cooperative agreement is sought under this section, he shall inform the Governor of the State, and officials of each political subdivision and Indian tribe, as appropriate, in which the facility would be located or which would be impacted by such facility. The Administrator shall not guarantee or make a commitment to guarantee or enter into a cooperative agreement under subsection (b) or subsection (y) of this section, if the Governor of the State in which the proposed facility would be located recommends that such action not be taken, unless the Administrator finds that there is an overriding national interest in taking such action in order to achieve the purpose of this section. If the Administrator decides to guarantee or make a commitment to guarantee or enter into a cooperative agreement despite a Governor's recommendation not to take such action, the Administrator shall communicate, in writing, to the Governor reasons for not concurring with such recommendation. This Administrator's decision,

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Page:United States Statutes at Large Volume 92 Part 1.djvu/119

 PUBLIC LAW 95-238—FEB. 25, 1978 pursuant to this subsection, shall be final unless determined upon judicial review initiated by the Governor to be unlawful by the reviewing court pursuant to 5 U.S.C. 706(2)(A) through (D)."Such review shall take place in the United States court of appeals for the circuit in which the State involved is located, upon application made within ninety days from the date of such decision. The Administrator shall, by regulation, establish procedures for review of, and comment on, the proposed facility by States, local political subdivisions, and Indian tribes which may be impacted by such facility, and the general public. "(2) The Administrator shall review and approve the plans of the applicant for the construction and operation of any demonstration and related facilities constructed or to be constructed with assistance under this section. Such plans and the actual construction shall include such monitoring and other data-gathering costs associated with such facility as are required by the comprehensive plan and program under this section. The Administrator shall determine the estimated total cost of such demonstration facility, including, but not limited to, construction costs, startup costs, costs to political subdivisions and Indian tribe by such facility, and cost of any water storage facilities needed in connection with such demonstration facility, and determine who shall pay such costs. Such determination shall not be binding upon the States, political subdivisions, or Indian tribes. "(3) There is hereby established a panel to advise the Administrator on matters relating to the program authorized by this section, including, but not limited to, the impact of the demonstration facilities on communities and States and Indian tribes, the environmental and health and safety effects of such facilities, and the means, measures, and planning for preventing or mitigating svich impacts, and other matters relating to the development of alternative fuels and other energy sources under this section. The panel shall include such Governors or their designees as shall be designated by the Chairman of the National Governors Conference. Representatives of Indian tribes, industry, environmental organizations, and the general public shall be appointed by the Administrator. The Chairman of the panel shall be selected by the Administrator. No person shall be appointed to the panel who has a financial interest in any applicant applying for assistance under this section. Members of the panel shall serve without compensation. The provisions of section 106(e) of the Energy Reorganization Act of 1974 (42 U.S.C. 5816(e)) shall apply to the panel. "(f) Except in accordance with reasonable terms and conditions contained in the written contract of guarantee, no guarantee issued or commitment to guarantee made under this section shall be terminated, canceled, or otherwise revoked. Such a guarantee or commitment shall be conclusive evidence that the underlying obligation is in compliance with the provisions of this section and that such obligation has been approved and is legal as to principal, interest, and other terms. Subject to the conditions of the guarantee or commitment to guarantee, such a guarantee shall be incontestable in the hands of the holder of the guaranteed obligation, except as to fraud or material misrepresentation on the part of the holder. " (s)(1) If there is a default by the borrower, as defined in regulations promulgated by the Administrator and in the guarantee contract, the holder of the obligation shall have the right to demand payment of the unpaid amount from the Administrator. Within such period as may be specified in the guarantee or related agreements, the Administrator shall pay to the holder of the obligation the unpaid interest on, and unpaid principal of, the guaranteed obligation as to which the

92 STAT. 65

Proposed facilities, review and comment. Procedures, regulations. Plans, review and approval.

Estimated total costs, determination.

Advisory panel. Establishment.

Membership.

Cha

Compensation.

Default, payment.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/120

 92 STAT. 66

Administrator's rights, subrogation.

40 USC 471 note.

Default, notification to Attorney General. Recovery.

Patents and technologies. 42 USC 5908. Default protection, terms and conditions.

Proprietary rights, availability.

Payment, contracts to pay.

PUBLIC LAW 95-238—FEB. 25, 1978 borrower has defaulted, unless the Administrator finds that there was no default by the borrower in the payment of interest or principal or that such de'fault has been remedied. Nothing in this section shall be construed to preclude any forebearance by the holder of the obligation for the benefit of the borrower which may be agreed upon by the parties to the guaranteed obligation and approved by the Administrator. "(2) If the Administrator makes a payment under paragraph (1) of this subsection, the Administrator shall be subrogated to the rights of the recipient of such payment (and such subrogation shall be expressly set forth in the guarantee or related agreements), including the authority to complete, maintain, operate, lease, or otherwise dispose of any property acquired pursuant to such guarantee or related agreements, or any other property of the borrower (of a value equal to the amount of such payment) to the extent that the guarantee applies to amounts in excess of the estimated project cost under subsection (c) (2)(B), without regard to the provisions of the Federal Property and Administrative Services Act of 1949, as amended, except section 207 of that Act (40 U.S.C. 488), or any other law, or to permit the borrower, pursuant to an agreement with the Administrator, to continue to pursue the purposes of the demonstration facility if the Administrator determines that this is in the public interest. The rights of the Administrator with respect to any property acquired pursuant to such guarantee or related agreements, shall be superior to the rights of any other person with respect to such property. "(3) In the event of a default on any guarantee under this section, the Administrator shall notify the Attorney General, who shall take such action as may be appropriate to recover the amounts of any payments made under paragraph (1) including any payment of principal and interest under subsection (h) from such assets of the defaulting borrower as are associated with the demonstration facility, or from any other security included in the terms of the guarantee. "(4) For purposes of this section, patents, including any inventions for which a waiver was made by the Administrator under section 9 of this Act, and technology resulting from the demonstration facility, shall be treated as project assets of such facility. The guarantee agreement shall include such detailed terms and conditions as the Administrator deems appropriate to protect the interests of the United States in the case of default and to have available all the patents and technology necessary for any person selected, including, but not limited to the Administrator, to complete and operate the defaulting project. Furthermore, the guarantee agreement shall contain a provision specifying that patents, technology, and other proprietary rights which are necessary for the completion or operation of the demonstration facility shall be available to the United States and its designees on equitable terms, including due consideration to the amount of the United States default payments. Inventions made or conceived in the course of or under such guarantee, title to which is vested in the United States under this Act, shall not be treated as project assets of such facility for disposal purposes under this subsection, unless the Administrator determines in writing that it is in the best interests of the United States to do so. "(h) With respect to any obligation guaranteed under this section, the Administrator is authorized to enter into a contract to pay, and to pay, holders of the obligations, for and on behalf of the borrowers, from the fund established by this section, the principal and interest

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Page:United States Statutes at Large Volume 92 Part 1.djvu/121

 PUBLIC LAW 95-238—FEB. 25, 1978 payments which become due and payable on the unpaid balance of such obligation if the Administrator jfinds that— "(1) the borrower is unable to meet such payments and is not in default; it is in the public interest to permit the borrower to continue to pursue the purposes of such demonstration facility; and the probable net benefit to the Federal Government in paying such principal and interest will be greater than that which would result in the event of a default; "(2) the amount of such payment which the Administrator is authorized to pay shall be no greater than the amount of principal and interest which the borrower is obligated to pay under the loan agreement; and "(3) the borrower agrees to reimburse the Administrator for such payment on terms and conditions, including interest, which are satisfactory to the Administrator, "(i) Regulations required by this section shall be issued within one hundred and eighty days after enactment of this section. All regulations under this section and any amendments thereto shall be issued in accordance with section 553 of title 5, of the United States Code. "(j) The Administrator shall charge and collect fees for guarantees of obligations authorized by subsection (b)(1), in amounts which (1) are sufficient in the judgment of the Administrator to cover the applicable administrative costs, and (2) reflect the percentage of projects costs guaranteed. In no event shall the fee be less than 1 per centum per annum of the outstanding indebtedness covered by the guarantee. Nothing in this subsection shall be construed to apply to community planning and development assistance pursuant to subsection (k) of this section. " (k)(l) In accordance with such rules and regulations as the Administrator in consultation with the Secretary of the Treasury shall prescribe, and subject to such terms and conditions as he deems appropriate, the Administrator is authorized, for the purpose of financing essential community development and planning which directly result from, or are necessitated by, one or more demonstration facilities assisted under this section to— "(A) guarantee and make commitments to guarantee the payment of interest on, and the principal balance of obligations for such financing issued by eligible States, political subdivisions, or Indian tribes, "(B) guarantee and make commitments to guarantee the payment of taxes imposed on such demonstration facilities by eligible non-Federal taxing authorities which taxes are earmarked by such authorities to support the payment of interest and principal on obligations for such financing, and "(C) require that the applicant for assistance for a demonstration facility under this section advance sums to eligible States, political subdivisions, and Indian tribes to pay for the financing of such development and planning: Provided, That the State, political subdivision, or Indian tribe agrees to provide tax abatement credits over the life of the facilities for such payments by such applicant. "(2) Prior to issuing any guarantee under this subsection, the Administrator shall obtain the concurrence of the Secretary of the Treasury with respect to the timing, interest rate, and substantial terms and conditions of such guarantee. The Secretary of the Treasury shall insure to the maximum extent feasible that the timing, interest rate, and substantial terms and conditions of such guarantee will have

92 STAT. 67

Regulations.

Guarantees of obligations, fees.

Consultation with Treasury Secretary.

Payment, guarantees and commitments.

Advancements.

Concurrence of Treasury Secretary.

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text: Folk-Lore/Volume 10/Sqaktktquaclt, or the Benign-Faced, the Oannes of the Ntlaka-pamuq


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Page:United States Statutes at Large Volume 92 Part 1.djvu/122

 92 STAT. 68

Default, payment.

Consultation.

Loans; repayment waiver.

Grants.

Debt obligations, redemption.

Assistance, sharing.

Facility title, default status.

PUBLIC LAW 95-238—FEB. 25, 1978 the minimum possible impact on the capital markets of the United States, taking into account other Federal direct and indirect securities activities. "(3) In the event of any default by the borrower in the payment of taxes guaranteed by the Administrator under this subsection, the Administrator shall pay out of the fund established by this section such taxes at the time or times they may fall due, and shall have by reason of such payment a claim against the borrower for all sums paid plus interest. "(4) If after consultation with the State, political subdivision, or Indian tribe, the Administrator finds that the financial assistance programs of paragraph (1) of this subsection will not result in sufficient funds to carry out the purposes of this subsection, then the Administrator may— "(A) make direct loans to the eligible States, political subdivisions, or Indian tribes for such purposes: Provided., That such loans shall be made on such reasonable terms and conditions as the Administrator shall prescribe: Provided further, That the Administrator may waive repayment of all or part of a loan made under this paragraph, including interest, if the State or political subdivision or Indian tribe involved demonstrates to the satisfaction of the Administi-ator that due to a change in circumstances there will be net adverse impacts resulting from such demonstration facility that would probably cause such State, subdivision, or tribe to default on the loan; or "(B) require that any community development and planning costs which are associated with, or result from, such demonstration facility and which are determined by the Administrator to be appropriate for such inclusion shall be included in the total costs of the demonstration facility. "(5) The Administrator is further authorized to make grants to States, political subdivisions, or Indian tribes for studying and planning for the potential economic, environmental, and social consequences of demonstration facilities, and for establishing related management expertise. "(6) At any time the Administrator may, with the concurrence of the Secretary of the Treasury, redeem, in whole or in part, out of the fund established by this section, the debt obligations guaranteed or the debt obligations for which tax payments are guaranteed under this subsection. "(7) When one or more States, political subdivisions, or Indian tribes would be eligible for assistance under this subsection, but for the fact that construction and operation of the demonstration facilities occurs outside its jurisdiction, the Administrator is authorized to provide, to the greatest extent possible, arrangements for equitable sharing of such assistance. " (8) Such amounts as may be necessary for direct loans and grants pursuant to this subsection shall be available as provided in annual authorization Acts. "(9) The Administrator, if appropriate, shall provide assistance in the financing of up to 100 per centum of the costs of the required community development and planning pursuant to this subsection. " (10) In carrying out the provisions of this subsection, the Administrator shall provide that title to any facility receiving financial assistance under this subsection shall vest in the applicable State, political subdivision, or Indian tribe, as appropriate, and in the case of default by the borrower on a loan guarantee such facility shall not be con-

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Summa Theologiae/Second Part of the Second Part/Question 63

Question. 63 - VICES OPPOSED TO DISTRIBUTIVE JUSTICE
OF RESPECT OF PERSONS (FOUR ARTICLES)

We must now consider the vices opposed to the aforesaid parts of justice. First we shall consider respect of persons which is opposed to distributive justice; secondly we shall consider the vices opposed to commutative justice.

Under the first head there are four points of inquiry:

(1) Whether respect of persons is a sin?

(2) Whether it takes place in the dispensation of spiritualities?

(3) Whether it takes place in showing honor?

(4) Whether it takes place in judicial sentences?

Art. 1 - Whether respect of persons is a sin?
Objection 1: It would seem that respect of persons is not a sin. For the word "person" includes a reference to personal dignity [*Cf. FP, Q[29], A[3], ad 2]. Now it belongs to distributive justice to consider personal dignity. Therefore respect of persons is not a sin.

Objection 2: Further, in human affairs persons are of more importance than things, since things are for the benefit of persons and not conversely. But respect of things is not a sin. Much less, therefore, is respect of persons.

Objection 3: Further, no injustice or sin can be in God. Yet God seems to respect persons, since of two men circumstanced alike He sometimes upraises one by grace, and leaves the other in sin, according to Mat. 24:40: "Two shall be in a bed [Vulg.: 'field' [*'Bed' is the reading of Luk. 17:34], one shall be taken, and one shall be left." Therefore respect of persons is not a sin.

On the contrary, Nothing but sin is forbidden in the Divine law. Now respect of persons is forbidden, Dt. 1:17: "Neither shall you respect any man's person." Therefore respect of persons is a sin.

I answer that, Respect of persons is opposed to distributive justice. For the equality of distributive justice consists in allotting various things to various persons in proportion to their personal dignity. Accordingly, if one considers that personal property by reason of which the thing allotted to a particular person is due to him, this is respect not of the person but of the cause. Hence a gloss on Eph. 6:9, "There is no respect of persons with God [Vulg.: 'Him']," says that "a just judge regards causes, not persons." For instance if you promote a man to a professorship on account of his having sufficient knowledge, you consider the due cause, not the person; but if, in conferring something on someone, you consider in him not the fact that what you give him is proportionate or due to him, but the fact that he is this particular man (e.g. Peter or Martin), then there is respect of the person, since you give him something not for some cause that renders him worthy of it, but simply because he is this person. And any circumstance that does not amount to a reason why this man be worthy of this gift, is to be referred to his person: for instance if a man promote someone to a prelacy or a professorship, because he is rich or because he is a relative of his, it is respect of persons. It may happen, however, that a circumstance of person makes a man worthy as regards one thing, but not as regards another: thus consanguinity makes a man worthy to be appointed heir to an estate, but not to be chosen for a position of ecclesiastical authority: wherefore consideration of the same circumstance of person will amount to respect of persons in one matter and not in another. It follows, accordingly, that respect of persons is opposed to distributive justice in that it fails to observe due proportion. Now nothing but sin is opposed to virtue: and therefore respect of persons is a sin.

Reply to Objection 1: In distributive justice we consider those circumstances of a person which result in dignity or right, whereas in respect of persons we consider circumstances that do not so result.

Reply to Objection 2: Persons are rendered proportionate to and worthy of things which are distributed among them, by reason of certain things pertaining to circumstances of person, wherefore such conditions ought to be considered as the proper cause. But when we consider the persons themselves, that which is not a cause is considered as though it were; and so it is clear that although persons are more worthy, absolutely speaking, yet they are not more worthy in this regard.

Reply to Objection 3: There is a twofold giving. one belongs to justice, and occurs when we give a man his due: in such like givings respect of persons takes place. The other giving belongs to liberality, when one gives gratis that which is not a man's due: such is the bestowal of the gifts of grace, whereby sinners are chosen by God. In such a giving there is no place for respect of persons, because anyone may, without injustice, give of his own as much as he will, and to whom he will, according to Mat. 20:14,15, "Is it not lawful for me to do what I will? . . . Take what is thine, and go thy way."

Art. 2 - Whether respect of persons takes place in the dispensation of spiritual goods?
Objection 1: It would seem that respect of persons does not take place in the dispensation of spiritual goods. For it would seem to savor of respect of persons if a man confers ecclesiastical dignity or benefice on account of consanguinity, since consanguinity is not a cause whereby a man is rendered worthy of an ecclesiastical benefice. Yet this apparently is not a sin, for ecclesiastical prelates are wont to do so. Therefore the sin of respect of persons does not take place in the conferring of spiritual goods.

Objection 2: Further, to give preference to a rich man rather than to a poor man seems to pertain to respect of persons, according to James 2:2,3. Nevertheless dispensations to marry within forbidden degrees are more readily granted to the rich and powerful than to others. Therefore the sin of respect of persons seems not to take place in the dispensation of spiritual goods.

Objection 3: Further, according to jurists [*Cap. Cum dilectus.] it suffices to choose a good man, and it is not requisite that one choose the better man. But it would seem to savor of respect of persons to choose one who is less good for a higher position. Therefore respect of persons is not a sin in spiritual matters.

Objection 4: Further, according to the law of the Church (Cap. Cum dilectus.) the person to be chosen should be "a member of the flock." Now this would seem to imply respect of persons, since sometimes more competent persons would be found elsewhere. Therefore respect of persons is not a sin in spiritual matters.

On the contrary, It is written (James 2:1): "Have not the faith of our Lord Jesus Christ . . . with respect of persons." On these words a gloss of Augustine says: "Who is there that would tolerate the promotion of a rich man to a position of honor in the Church, to the exclusion of a poor man more learned and holier?" [*Augustine, Ep. ad Hieron. clxvii.]

I answer that, As stated above (A[1]), respect of persons is a sin, in so far as it is contrary to justice. Now the graver the matter in which justice is transgressed, the more grievous the sin: so that, spiritual things being of greater import than temporal, respect of persons is a more grievous sin in dispensing spiritualities than in dispensing temporalities. And since it is respect of persons when something is allotted to a person out of proportion to his deserts, it must be observed that a person's worthiness may be considered in two ways. First, simply and absolutely: and in this way the man who abounds the more in the spiritual gifts of grace is the more worthy. Secondly, in relation to the common good; for it happens at times that the less holy and less learned man may conduce more to the common good, on account of worldly authority or activity, or something of the kind. And since the dispensation of spiritualities is directed chiefly to the common good, according to 1 Cor. 12:7, "The manifestation of the Spirit is given to every man unto profit," it follows that in the dispensation of spiritualities the simply less good are sometimes preferred to the better, without respect of persons, just as God sometimes bestows gratuitous graces on the less worthy.

Reply to Objection 1: We must make a distinction with regard to a prelate's kinsfolk: for sometimes they are less worthy, both absolutely speaking, and in relation to the common good: and then if they are preferred to the more worthy, there is a sin of respect of persons in the dispensation of spiritual goods, whereof the ecclesiastical superior is not the owner, with power to give them away as he will, but the dispenser, according to 1 Cor. 4:1, "Let a man so account of us as of the ministers of Christ, and the dispensers of the mysteries of God." Sometimes however the prelate's kinsfolk are as worthy as others, and then without respect of persons he can lawfully give preference to his kindred since there is at least this advantage, that he can trust the more in their being of one mind with him in conducting the business of the Church. Yet he would have to forego so doing for fear of scandal, if anyone might take an example from him and give the goods of the Church to their kindred without regard to their deserts.

Reply to Objection 2: Dispensations for contracting marriage came into use for the purpose of strengthening treaties of peace: and this is more necessary for the common good in relation to persons of standing, so that there is no respect of persons in granting dispensations more readily to such persons.

Reply to Objection 3: In order that an election be not rebutted in a court of law, it suffices to elect a good man, nor is it necessary to elect the better man, because otherwise every election might have a flaw. But as regards the conscience of an elector, it is necessary to elect one who is better, either absolutely speaking, or in relation to the common good. For if it is possible to have one who is more competent for a post, and yet another be preferred, it is necessary to have some cause for this. If this cause have anything to do with the matter in point, he who is elected will, in this respect, be more competent; and if that which is taken for cause have nothing to do with the matter, it will clearly be respect of persons.

Reply to Objection 4: The man who is taken from among the members of a particular Church, is generally speaking more useful as regards the common good, since he loves more the Church wherein he was brought up. For this reason it was commanded (Dt. 17:15): "Thou mayest not make a man of another nation king, who is not thy brother."

Art. 3 - Whether respect of persons takes place in showing honor and respect?
Objection 1: It would seem that respect of persons does not take place in showing honor and respect. For honor is apparently nothing else than "reverence shown to a person in recognition of his virtue," as the Philosopher states (Ethic. i, 5). Now prelates and princes should be honored although they be wicked, even as our parents, of whom it is written (Ex. 20:12): "Honor thy father and thy mother." Again masters, though they be wicked, should be honored by their servants, according to 1 Tim. 6:1: "Whoever are servants under the yoke, let them count their masters worthy of all honor." Therefore it seems that it is not a sin to respect persons in showing honor.

Objection 2: Further, it is commanded (Lev. 19:32): "Rise up before the hoary head, and, honor the person of the aged man." But this seems to savor of respect of persons, since sometimes old men are not virtuous; according to Dan. 13:5: "Iniquity came out from the ancients of the people [*Vulg.: 'Iniquity came out of Babylon from the ancient judges, that seemed to govern the people.']." Therefore it is not a sin to respect persons in showing honor.

Objection 3: Further, on the words of James 2:1, "Have not the faith . . . with respect of persons," a gloss of Augustine [*Ep. ad Hieron. clxvii.] says: "If the saying of James, 'If there shall come into your assembly a man having a golden ring,' etc., refer to our daily meetings, who sins not here, if however he sin at all?" Yet it is respect of persons to honor the rich for their riches, for Gregory says in a homily (xxviii in Evang.): "Our pride is blunted, since in men we honor, not the nature wherein they are made to God's image, but wealth," so that, wealth not being a due cause of honor, this will savor of respect of persons. Therefore it is not a sin to respect persons in showing honor.

On the contrary, A gloss on James 2:1, says: "Whoever honors the rich for their riches, sins," and in like manner, if a man be honored for other causes that do not render him worthy of honor. Now this savors of respect of persons. Therefore it is a sin to respect persons in showing honor.

I answer that, To honor a person is to recognize him as having virtue, wherefore virtue alone is the due cause of a person being honored. Now it is to be observed that a person may be honored not only for his own virtue, but also for another's: thus princes and prelates, although they be wicked, are honored as standing in God's place, and as representing the community over which they are placed, according to Prov. 26:8, "As he that casteth a stone into the heap of Mercury, so is he that giveth honor to a fool." For, since the gentiles ascribed the keeping of accounts to Mercury, "the heap of Mercury" signifies the casting up of an account, when a merchant sometimes substitutes a pebble [*'Lapillus' or 'calculus' whence the English word 'calculate'] for one hundred marks. So too, is a fool honored if he stand in God's place or represent the whole community: and in the same way parents and masters should be honored, on account of their having a share of the dignity of God Who is the Father and Lord of all. The aged should be honored, because old age is a sign of virtue, though this sign fail at times: wherefore, according to Wis. 4:8,9, "venerable old age is not that of long time, nor counted by the number of years; but the understanding of a man is gray hairs, and a spotless life is old age." The rich ought to be honored by reason of their occupying a higher position in the community: but if they be honored merely for their wealth, it will be the sin of respect of persons.

Hence the Replies to the Objections are clear.

Art. 4 - Whether the sin of respect of persons takes place in judicial sentences?
Objection 1: It would seem that the sin of respect of persons does not take place in judicial sentences. For respect of persons is opposed to distributive justice, as stated above (A[1]): whereas judicial sentences seem to pertain chiefly to commutative justice. Therefore respect of persons does not take place in judicial sentences.

Objection 2: Further, penalties are inflicted according to a sentence. Now it is not a sin to respect persons in pronouncing penalties, since a heavier punishment is inflicted on one who injures the person of a prince than on one who injures the person of others. Therefore respect of persons does not take place in judicial sentences.

Objection 3: Further, it is written (Ecclus. 4:10): "In judging be merciful to the fatherless." But this seems to imply respect of the person of the needy. Therefore in judicial sentences respect of persons is not a sin.

On the contrary, It is written (Prov. 18:5): "It is not good to accept the person in judgment [*Vulg.: 'It is not good to accept the person of the wicked, to decline from the truth of judgment.']."

I answer that, As stated above (Q[60], A[1]), judgment is an act of justice, in as much as the judge restores to the equality of justice, those things which may cause an opposite inequality. Now respect of persons involves a certain inequality, in so far as something is allotted to a person out of that proportion to him in which the equality of justice consists. Wherefore it is evident that judgment is rendered corrupt by respect of persons.

Reply to Objection 1: A judgment may be looked at in two ways. First, in view of the thing judged, and in this way judgment is common to commutative and distributive justice: because it may be decided by judgment how some common good is to be distributed among many, and how one person is to restore to another what he has taken from him. Secondly, it may be considered in view of the form of judgment, in as much as, even in commutative justice, the judge takes from one and gives to another, and this belongs to distributive justice. In this way respect of persons may take place in any judgment.

Reply to Objection 2: When a person is more severely punished on account of a crime committed against a greater person, there is no respect of persons, because the very difference of persons causes, in that case, a diversity of things, as stated above (Q[58], A[10], ad 3; Q[61], A[2], ad 3).

Reply to Objection 3: In pronouncing judgment one ought to succor the needy as far as possible, yet without prejudice to justice: else the saying of Ex. 23:3 would apply: "Neither shalt thou favor a poor man in judgment."


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 PUBLIC LAW 95-238—FEB. 25, 1978

92 STAT. 69

sidered a project asset for the purposes of subsection (g) of this section. "(1)(1) The Administrator is directed to submit a report to the Annual report to Congress within one hundred and eighty days after the enactment of Congress. this section setting forth his recommendations on the best opportunities Recommendato implement a program of Federal financial assistance with the objec- tions. tive of demonstrating production and conservation of energy. Such report shall be updated and submitted to Congress at least annually and shall include specific comments and recommendations by the Secretary of the Treasury on the methods and procedures set forth in subparagraph (B) (viii) of this subsection, including their adequacy, and changes necessary to satisfy the objectives stated in this subsection. This report shall include— "(A) a study of the purchase or commitment to purchase by Study. the Federal Government, for the use by the United States, of all or a portion of the products of any alternative fuel facilities constructed pursuant to this program as a direct or an alternate form of Federal assistance, which assistance, if recommended, shall be carried out pursuant to section 7(a)(4) of this Act; and 42 USC 5906. " (B) a comprehensive plan and program to acquire information Comprehensive and evaluate the environmental, economic, social, and technologi- plan and cal impacts of the demonstration program under this section. In program. preparing such a comprehensive plan and program, the Admin- Consultations. istrator shall consult with the Environmental Protection Agency, the Federal Energy Administration, the Department of Housing and Urban Development, the Department of the Interior, the Department of Agriculture, and the Department of the Treasury, and shall include therein, but not be limited to, the following: "(i) information about potential demonstration facilities proposed in the program under this section; 1 "(ii) any significant adverse impacts which may result from any activity included in the program; "(iii) the extent to which it is feasiple to commercialize the technologies as they affect different regions of the Nation; "(iv) proposed regulations required to carry out the purposes of this section; "(v) a list of Federal agencies, governmental entities, and other persons that will be consulted or utilized to implement the program; "(vi) the methods and procedures by which the information gathered under the program will be analyzed and disseminated; "(vii) a plan for the study and monitoring of the health effects of such facilities on workers and other persons, including, but not limited to, any carcinogenic effect of alternative fuels; and "(viii) the methods and procedures to insure that (I) the use of the Federal assistance for demonstration facilities is kept to the minimum level necessary for the information objectives of this section, (II) the impact of loan guarantees on the capital markets of the United States is minimized, taking into account other Federal direct and indirect securities activities, and any economic sectors which may be negatively impacted as a result of the reduction of capital by the placement of guaranteed loans, and ( III) the granting of, Federal loan guarantees under this Act does not impede movement toward improvement in the climate for attracting pri-

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Page:United States Statutes at Large Volume 92 Part 1.djvu/124

 92 STAT. 70

Annual report to Congress.

42 USC 5914. Transmittal to Speaker of the House, President of the Senate, and congressional committees. Report to congressional committees.

Finalization.

Congressional authorization.

PUBLIC LAW 95-238—FEB. 25, 1978 vate capital to develop alternative fuels without continued direct Federal incentives. "(2) The Administrator shall annually submit a detailed report to the Congress concerning— " (A) the actions taken or not taken by the Administrator under this section during the preceding fiscal year, and including, but not be limited to (i) a discussion of the status of each demonstration facility and related facilities financed under this section, including progress made in the development of such facilities, and the expected or actual production from each such facility, including byproduct production therefrom, and the distribution of such products and byproducts, (ii) a detailed statement of the financial conditions of each such demonstration facility, (iii) data concerning the environmental, community, and health and safety impacts of each such facility and the actions taken or planned to prevent or mitigate such impacts, (iv) the administrative and other costs incurred by the Administrator and other Federal agencies in carrying out this program, and (v) such other data as may be helpful in keeping Congress and the public fully and currently informed about the program authorized by this section; and "(B) the activities of the fund referred to in subsection (n) of this section during the preceding fiscal year, including a statement of the amount and source of fees or other moneys, property, or assets deposited into the funds, all payments made, the notes or other obligations issued by the Administrator, and such other data as may be appropriate. "(3) The annual reports required by this subsection shall be a part of the annual report required by section 15 of this Act, except that the matters required to be reported by this subsection shall be clearly set out and identified in such annual reports. Such reports and the one-hundred-and-eighty-day report required in paragraph (1) of this subsection shall be transmitted to the Speaker of the House of Representatives and the House Committee on Science and Technology and to the President of the Senate and the Committee on Energy and Natural Resources of the Senate. " (m) Prior to issuing any guarantee or commitment to guarantee or cooperative agreement pursuant to subsection (b) or subsection (y) of this section the Administrator shall submit to the Committee on Science and Technology of the House of Representatives and the Committee on Energy and Natural Resources of the Senate a full and complete report on the proposed demonstration facility and such guarantee, agreement, or contract. Such guarantee, commitment to guarantee, cooperative agreement, or contract shall not be finalized under the authority granted by this section prior to the expiration of ninety calendar days (not including any day on which either House of Congress is not in session because of an adjournment of more than three calendar days to a day certain) from the date on which such report is received by such committees: Provided, That, where the cost of a demonstration facility to be assisted with a guarantee or cooperative agreement pursuant to subsection (b) or subsection (y) of this section exceeds $50,000,000 such guarantee or commitment to guarantee or cooperative agreement shall not be finalized unless (1) the making of such guarantee or commitment or agreement is specifically authorized by legislation hereafter enacted by the Congress or (2) both Houses pass a resolution stating in substance that the

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Page:United States Statutes at Large Volume 92 Part 1.djvu/125

 PUBLIC LAW 95-238—FEB. 25, 1978 Congress favors the making of such guarantee or commitment or agreement. " (n)(l) There is hereby created within the Treasury a separate fund (hereafter in this section called the 'fund') which shall be available to the Administrator without fiscal year limitation as a revolving fund for the purpose of carrying out the program authorized by subsection (b)(1) and subsections (g), (h), (k), and (y) of this section. "(2) There are hereby authorized to be appropriated to the fund for administrative expenses from time to time such amounts as may be necessary to carry out the purposes of the applicable provisions of this section, including, but not limited to, the payments of interest and principal and the payment of interest differentials and redemption of debt. All amounts received by the Administrator as interest payments or repayments of principal on loans which are guaranteed under this section, fees, and any other moneys, property, or assets derived by him from operations under this section shall be deposited in the fund. "(3) All payments on obligations, appropriate expenses (including reimbursements to other Government accounts), and repayments pursuant to operations of the Administrator under this section shall be paid from the fund subject to appropriations. If at any time the Administrator determines that moneys in the fund exceed the present and reasonably foreseeable future requirements of the fund, such excess shall be transferred to the general fund of the Treasury. "(4) If at any time the moneys available in the fund are insufficient to enable the Administrator to discharge his responsibilities as authorized by subsections (b)(1), (g), (h), and (y) of this section, the Administrator shall issue to the Secretary of the Treasury notes or other obligations in such forms and denominations, bearing such maturities, and subject to such terms and conditions as may be prescribed by the Secretary of the Treasury. Redemption of such notes or obligations shall be made by the Administrator from appropriations or other moneys available under paragraph (2) of this subsection for loan guarantees authorized by subsection (b)(1) and subsections (g), (h), (k), and (y) of this section. Such notes or other obligations shall bear interest at a rate determined by the Secretary of the Treasury, which shall be not less than a rate determined by taking into consideration the average market yield on outstanding marketable obligations of the United States of comparable maturities during the month preceding the issuance of the notes or other obligations. The Secretary of the Treasury may at any time sell any of the notes or other obligations acquired by him under this subsection. "(5) The provisions of this subsection do not apply to direct loans or planning grants made under subsection (k) of this section. " (o) For the purposes of this section, the term— "(1) 'State' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, any territory or possession of the United States, "(2) 'United States' means the several States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa, " (3) 'borrower' or 'applicant' shall include any individual, firm, corporation, company, partnership, association, society, trust, joint venture, joint stock company, or other non-Federal entity, and

92 STAT. 71

Revolving fund.

Administrative expenses.

Funds, transfer.

Notes or obligations, issuance to Treasury Secretary.

Interest rate.

Sale.

Definitions.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/126

 92 STAT. 72

PUBLIC LAW 95-238—FEB. 25, 1978

"(4) 'biomass' shall include, but is not limited to, animal and timber waste, municipal and industrial waste, sewage, sludge, and oceanic and terrestrial crops. Citizenship " (p)(1) An applicant seeking a guarantee or cooperative agreement requirement. under subsection (b) or subsection (y) of this section must be a citizen or national of the United States. A corporation, partnership, firm, or association shall not be deemed to be a citizen or national of the United States unless the Administrator determines that it satisfactorily meets all the requirements of section 802 of title 46, United States Code, for determining such citizenship, except that the provisions in subsection (a) of such section 802 concerning (A) the citizenship of officers or directors of a corporation, and (B) the interest required to be owned in the case of a corporation, association, or partnership operating a vessel in the boastwise trade, shall not be applicable. Waiver, " (2) The Administrator, in consultation with the Secretary of State, consultation. may waive such requirements in the case of a corporation, partnership, firm, or association, controlling interest in which is owned by citizens bf countries which are participants in the International Energy Agreement. Non" (q) No part of the program authorzed by this section shall be transtransferability. ferred to any other agency or authority, except pursuant to Act of Congress enacted after the date of enactment of this section. "(r) Inventions made or conceived in the course of or under a guarantee authorized by this section shall be subject to the title and waiver requirements and conditions of section 9 of this Act. 42 USC 5908. "(s) Nothing in this section shall be construed as affecting the obligations of any person receiving financial assistance pursuant to this section to comply with Federal and State environmental, land use, water, and health and safety laws and regulations or to obtain applicable Federal and State permits, licenses, and certificates. Information, "(t) The information maintained by the Administrator under this availability to section shall be made available to the public subject to the provision public. of section 552 of title 5, United States Code, and section 1905 of title 18 United States Code, and to other Government a<i'encies in a manner Nondisclosure. that will facilitate its dissemination: Provided, That upon a showing satisfactory to the Administrator by any person that any information, or portion thereof obtained under this section by the Administrator directly or indirectly from such person would, if made public, divulge (1) trade secrets or (2) other proprietary information of such person, ,^, the Administrator shall not disclose such information and disclosure thereof shall be punishable under section 1905 of title 18, United Cooperation with States Code: Provided further, That the Administrator shall, upon Federal agencies, request, provide such information to (A) any delegate of the Administrator for the purpose of carrying out this Act, and (B) the Attorney General, the Secretary of Agriculture, the Secretary of the Interior, " '' the Federal Trade Commission, the Federal Energy Administration, the Environmental Protection Agency, the Federal Power Commission, the General Accounting Office, other Federal agencies, or heads of other Federal agencies, when necessary to carry out their duties and responsibilities under this and other statutes, but such agencies and agency heads shall not release such information to the public. This section is not authority to withhold information from Congress, or "Person." from any committee of Congress upon request of the Chairman. For the purposes of this subsection, the term 'person' shall include the borrower.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/127

 PUBLIC LAW 95-238—FEB. 25, 1978 "(u) Notwithstanding any other provision of this section, the authority provided in this section to make guarantees or commitments to guarantee or enter into cooperative agreements under subsection (b) (1) or subsection (y), to make guarantees or commitments to guarantees, or to make loans or grants, under subsection (k), to make contracts under subsection (h), and to use fees and receipts collected under subsections (b), (j), and (y) of this section, and the authorities provided under subsection (n) of this section shall be effective only to the extent provided, without fiscal year limitation, in appropriation Acts enacted after the date of enactment of this section. "(v) No person in the United States shall on the grounds of race, color, religion, national origin, or sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with assistance made available under this section: Provided, That Indian tribes are exempt from the operation of this subsection: Provided further, That such exemption shall be limited to the planning and provision of public facilities which are located on reservations and which are provided for members of the affected Indian tribes as the primary beneficiaries. "(w) In carrying out his functions under this section, the Administrator shall provide a realistic and adequate opportunity for small business concerns to participate in the program to the optimum extent feasible consistent with the size and nature of each project. " (x)(l)(A) Rocipionts of financial assistance under this section shall keep such records and other pertinent documents, as the Administrator shall prescribe by regulation, including, but not limited io, records which fully disclose the disposition of the proceeds of such assistance, the cost of any facility, the total cost of the provision of public facilities for which assistance was used and such other records as the Administrator may require to facilitate an effective audit. The Administrator and the Comptroller General of the United States, or their duly authorized representative shall have access, for the purpose of audit, to such records and other pertinent documents. "(B) Within 6 months after the date of enactment of this section and at 6-month intervals thereafter, the Comptroller General of the United States shall make an audit of recipients of financial assistance under this section. The Comptroller General may prescribe such regulations as he deems necessary to carry out this subparagraph. "(2) All laborers and mechanics employed by contractors or subcontractors in the performance of construction work financed in whole or in part with assistance under this section shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a—276a-5). The Secretary of Labor shall have, with respect to such labor standards, the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267) and section 2 of the Act of June 13, 1934, as amended (48 Stat. 948; 40 U.S.C. 276(c)). "(y)(1) The Administrator is authorized in accordance with such rules and regulations as he shall prescribe after consultation with the Secretary of the Treasury, to guarantee and to make commitments to guarantee the payment of interest on, and the principal balance of, bonds, debentures, notes, and other obligations issued by or on behalf of any borrower for the purpose of (A) financing the construction and startup costs of demonstration facilities for the conversion of municipal or industrial waste, sewage sludge, or other municipal organic wastes into synthetic fuels, and (B) financing the construc-

92 STAT. 73

Nondiscrimination.

Indian tribes, exemption.

Small business opportunities.

Record retention.

Audit.

Regulations. Laborers and mechanics, wages.

5 USC app. 40 USC 276c. Payment obligations, guarantees.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/128

 92 STAT. 74

Outstanding indebtedness, limitation.

Certification to Administrator.

42 USC 6907. Amount guaranteed, limitation.

Maturity, limitation.

Fees.

Nontransferability. Project agreements, administration. 42 USC 6901 note.

PUBLIC LAW 95-238—FEB. 25, 1978 tion and startup costs of demonstration facilities to generate desirable forms of energy (including synthetic fuels) from municipal or industrial waste, sewage sludge, or other municipal organic waste. With respect to a guarantee or a commitment to guarantee authorized by this subsection; the following subsections of this section shall not apply: (b)(1), (b)(5), (c)(2), (c)(5), (c)(6), (c)(7), (c)(8), (c)(9),(e)(3),(j),(k),and(q). "(2) In the case where the Administrator seeks to guarantee or to make commitments to guarantee as provided by this subsection he is authorized to incur an outstanding indebtedness which at no time shall exceed $300,000,000. "(3) The Administrator shall apply the following provisions thereto: " (A) With respect to any demonstration facility for the conversion of solid waste (as the term is defined in the Eesource Conservation and Recovery Act (42 U.S.C. 6903)), the Administrator, prior to issuing any guarantee under this section, must be in receipt of a certification from the Administrator of the Environmental Protection Agency and any appropriate State or areawide solid waste management planning agency that the proposed application for a guarantee is consistent with any applicable suggested guidelines published pursuant to section 1008(a) of the E«source Conservation and Recovery Act, and any applicable State or regional solid waste management plan. "(B) The amount guaranteed shall not exceed 75 per centum of the total cost of the commercial demonstration facility, as determined by the Administrator: Provided, That the amount guaranteed may not exceed 90 per centum of the total cost of the commercial demonstration facility during the period of construction and startup. "(C) The maximum maturity of the obligation shall not exceed thirty years, or 90 per centum of the projected useful economic life of the physical assets of the commercial demonstration facility covered by the guarantee, whichever is less, as determined by the Administrator. "(D) The Administrator shall charge and collect fees for guarantees of obligations in amounts sufficient in the judgment of the Administrator to cover the applicable administrative costs and probable losses on guaranteed obligations, but in any event not to exceed 1 per centum per annum of the outstanding indebtedness covered by the guarantee. " (E) No part of the program authorized by this section shall be transferred to any other agency or authority, except pursuant to Act of Congress enacted after the date of enactment of this section: Provided, That project agreements entered into pursuant to this section for any commercial demonstration facility for the conversion or bioconversion of solid waste (as that term is defined in the Resource Conservation and Recovery Act) shall be administered in accordance with the May 7, 1976, Interagency Agreement between the Environmental Protection Agency and the Energy Research and Development Administration on the Development of Energy From Solid Wastes, and provided specifically that in accordance with this agreement (i) for those energyrelated projects of mutual interest, planning will be conducted jointly by the Environmental Protection Agency and the Energy Research and Development Administration, following which

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Page:United States Statutes at Large Volume 92 Part 1.djvu/129

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92 STAT. 75

project responsibility will be assigned to one agency; (ii) energyrelated projects for recovery of synthetic fuels or other forms of energy from solid waste shall be the responsibility of the Energy Kesearch and Development Administration; and (iii) the Environmental Protection Agency shall retain responsibility for the environmental, economic, and institutional aspects of solid waste projects and for assurance that such projects are consistent with any applicable suggested guidelines pursuant to section 1008 of the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), as amended, and any applicable State or regional 42 USC 6907. solid waste management plan. " (F) With respect to any obligation which is issued after the enactment of this section by, or in behalf of, any State, political subdivision, or Indian tribe and which is either guaranteed under, or supported by taxes levied by said issuer which are guaranteed under, this section, the interest paid on such obligation and received by the purchaser thereof (or the purchaser's successor in interest) shall be included in gross income for the purpose of chapter 1 of the Internal Revenue Code of 1954, as amended: 26 USC 1 et seq. Provided, That the Administrator shall pay to such issuer out of Interest, the fund established by this section such portion of the interest on payment. such obligations, as determined by the Secretary of the Treasury to be appropriate after taking into account current market yields (i) on obligations of said issuer, if any, and (ii) on other obligations with similar terms and conditions the interest on which is not so included in gross income for purposes of chapter 1 of such Code, and in accordance with, such terms and conditions as the Secretary of the Treasury shall require.". 42 USC 5556a. SEC. 208. (a) The Secretary of Energy shall— (1) initiate and conduct an "application and system design Solar study", cooperatively with appropriate Federal agencies, to deter- photovoltaic mine the potential for the use of solar photovoltaic systems at systems at Federal specific Federal installations; and this study shall— installations, (A) include an analysis of those sites that are currently study. cost-effective for solar photovoltaic energy systems, using life-cycle costing techniques, as well as those which would be cost-effective at expected future market prices; (B) identify potential sites and uses of solar photovoltaic energy systems at the following agencies as well as any others which the Secretary of Energy deems necessary: (i) the Department of Defense; (ii) the Department of Transportation (including the United States Coast Guard, the Federal Aviation Administration, and the Federal Highway Administration); (iii) the Department of Commerce; (iv) the Department of Agriculture; and (v) the Department of the Interior; • (C) provide a preliminary report to Congress within nine Preliminary report to months following the enactment of this Act; (D) include the presentation of a detailed plan for the Congress. implementation of solar photovoltaic energy systems for power generation at specific sites in Federal (jovernment agencies to Congress within twelve months following the enactment of this Act; (2) initiate and conduct a study of the options available to the Solar Federal Government to provide for the adequate growth of the photovoltaic solar photovoltaic industry and to include such possible incentives industry growth study, report to Congress.

39-194 O—80—pt. 1

9: QL3

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