On the causes that take away the obligation of restitution

[Three causes are counted which take away the obligation of restitution altogether: namely, legitimate compensation, remission by the creditor, and public authority.

First cause. Legitimate compensation.

Compensation is twofold: legal and extra-legal. The former takes place when two persons who are debtors to each other each set off against payment the thing owed to the other. Thus, for example, I owe you one hundred for wheat, and you owe me one hundred for wine: both debts are extinguished by compensation. This compensation, which is manifestly licit, is called legal, because it is confirmed by law. ⁴⁴⁸ The latter takes place secretly, outside the conditions established by law, and is the recovery of one's own property through occupation of another's property. Of this alone we have to treat. ⁴⁴⁸ Cod. Gall., art. 1289; Ital., art. 1285.

I say: Secret compensation can sometimes be just and licit, if it lacks none of the required conditions.

It is proved, because, these conditions being posited, no injury is done to the debtor, nor does any disturbance of the order established by law follow, nor is any damage inflicted on the state. 1° No injury is done to the debtor; for it is supposed that you take only what is certainly yours, or what is owed to you by strict justice. — 2° No disturbance of the order established by law follows, since it is supposed either that the judge cannot be approached, at least without notable inconvenience, or that he cannot restore the right of the injured party, because juridical proofs are lacking. For what would be sought in vain is rightly said to be passed over. — 3° No damage is inflicted on the state; for it is sufficiently provided for by the safeguards which are enumerated among the required conditions. ^{449 449} Gury, n. 621 ; S. Lig., lib. IV, n. 521.

Furthermore, the required conditions are: 1° That the debt be certain, at least morally; « for in doubt the condition of the possessor is better. » If the doubt concerns only the manner of compensation, and no more is taken than is owed, the compensation is not unjust — indeed not even illicit, if it proceeds from a truly probable reason. 2° That the debt cannot otherwise be recovered, at least without grave inconvenience; for if the common ways were open, grave injury would be inflicted on the debtor and on the public order. 3° That the compensation be made in the same species, as far as possible. Otherwise the debtor's property would be unjustly exchanged while he was unreasonably unwilling. 4° That it not be made to the damage of the debtor, that is, taking care that he do not pay twice, should he happen to be going to restitute. ^{450 450} Gury, n. 622 ; S. Lig., Homo apost., X, 21.

You will ask 1° whether he who, forgetful of his debt, gave something gratuitously to the creditor has satisfied the obligation of restituting.

I answer. Although many deny it, we judge it must be affirmed as probable: « It is always, and certainly, presumed that the debtor, had he been mindful of his debt, would never have given it. The reason is that everyone, when giving his goods, is always understood to wish rather to satisfy an obligation of justice than his own will to give, or the obligation of a donation once made; which, since it was made through error or through oblivion of the debt — which error was the cause of the donation — remains rescindable by the same donor, who in conscience is not held to fulfill it ⁴⁵¹ » And this seems beyond doubt, if, the debt having first been paid in justice, the donation made had been notably burdensome; for few would wish to burden themselves so. ⁴⁵¹ S. Lig., Homo apost., X, 120 ; lib. IV, n. 700.

You will ask 2° whether servants, who consider their salary insufficient, may make use of secret compensation.

I answer: In the negative, generally speaking. It is certain 1° from the condemnation of the following proposition, n. 37, by Innocent XI: « Male and female domestic servants can steal secretly from their masters, to compensate their labor, which they judge greater than the salary they receive. » This proposition was reproved on account of its generality. 2° From reason. One must stand by the pacts and agreements entered into in good faith on both sides. Therefore servants can attribute to themselves nothing beyond the stipulated salary; or, if they were deceived by error or fraud, they may rescind the contract. 3° From the inconveniences. If such compensation were held licit in itself, the way would lie open to innumerable thefts; for servants could most easily persuade themselves that their wages are less than just, and thus no security would remain to masters. — Say the same of day laborers hired for a time and of all artisans or merchants. ^{452 452} Gury, n. 623.

I said, « generally speaking », because, if the servant has been deceived, if extraordinary and undue labors were imposed upon him, and the master denies him every corresponding recompense, it will be lawful for him to compensate himself, taking care not to exceed the just limits. ⁴⁵³ And this does not contradict the condemnation of the proposition related above, for it is evident that the Pontiff did not intend to bind the servant against justice. ⁴⁵⁴ But if the servant of his own accord increases the labors owed, he can steal nothing in compensation; because then he is understood to bestow his labor gratuitously, to win the favor of his master. ⁴⁵³ S. Lig., lib. IV, n. 522. ⁴⁵⁴ Id., ibid., n. 323.

You will ask 3° whether one condemned by a judge to pay a debt which he certainly did not contract, or certainly has already paid, may compensate himself secretly.

I answer: Affirmatively; because the sentence of the judge, even if juridically just, is formally unjust, being grounded on a false presumption of fact, and consequently does not bind the conscience. One must indeed always stand by the sentence of the judge if there is a presumption of law supported by proof, unless the injustice of the law be evident; but otherwise, if it is a simple and false presumption of fact, which being detected, the one who obtained the sentence ought to restitute the thing adjudged to him, because dominion was not validly transferred to him. So it is commonly held.

Second cause. Remission.

Remission, which takes away the obligation of restituting, is the free forgiveness of a debt made by a creditor able to forgive, that is, who holds dominion and administration of the thing owed to him. Many say that the remission must also be spontaneous. But it seems to us that it certainly suffices for it to be free; for, if the creditor is brought to forgive the debt by prayers and solicitations which leave his liberty intact, there is no doubt that he validly transfers the dominion of the thing to the debtor.

Express remission is not always required, but tacit suffices, or even presumed, provided it be morally certain. So it is commonly held. The reason is that, for accepting and keeping another's property without injustice, a positive will of the owner is not required, but it suffices that he not be positively unwilling. ⁴⁵⁵ If, however, the owner must be judged unwilling only as to the manner of acquiring, since his right is violated in some way, the fault cannot be excused from venial. ⁴⁵⁵ Id., ibid., quaer. 1°.

How remission is made in the external forum must be seen in the various Codes. ^{456 456} Cod. Gall., art. 1282-1284 ; Ital., art. 1280.

Third cause. The authority of public power.

The faculty of transferring dominion belongs both to the civil prince, with respect to the temporal public good, and to the supreme Pontiff, with respect to the spiritual public good. Hence it follows that the burden of restitution can, a just cause intervening, be taken away by either power.

To this head are referred what we said above more fully concerning the finding of a treasure, liberative prescription, and the fruits of another's property received in good faith. To these it helps to add some things here: 1° on the sentence of a judge; 2° on composition with the supreme Pontiff; 3° on the sanation of goods of the Church unjustly alienated.

I. The sentence of a judge, not grounded on a false presumption, but resting on truth, takes away the obligation of restituting. The reason is that such a sentence is upheld by the authority of laws, which, by reason of the common good, legitimately transfer dominion over things.

Hence you are not held to restitute: 1° if the judge, as punishment for some delict committed by your creditor, imposes this penalty, that you not restitute to him what you owe him; 2° if out of equity he adjudges to you something which otherwise, in the rigor of justice, would not be owed to you.

II. Composition with the supreme Pontiff is then had when the Roman Pontiff, by his supreme power, so treats that one part of the debt indeed is expended on pious causes, but the other is forgiven to the debtor, supplying out of the treasury of the Church the spiritual benefit which would accrue to the owner if the whole debt had been spent on alms. ^{457 457} S. Lig., Homo apost., X, 117, 2°.

For the composition to be legitimate, and to free the debtor in the forum of conscience, it is required: 1° That the owners be altogether uncertain; for if they are known in some degree, as in petty thefts, or merchants cheating in weight and measure, they cannot without injustice be directly despoiled without their consent. 2° That a just cause be present; for otherwise the composition would indeed be valid, but illicit, in ecclesiastical matters; in other matters, however, the cause failing, it would also be invalid, because in the first case the supreme Pontiff dispenses in his own law, but not so in the second. — If, however, the cause has been just, the composition once made is not revoked, although the owner appears, because dominion has already been legitimately transferred. So Lugo, against others, who wish the debtor in that case to be held to restitute to the owner that by which he has been enriched. ^{458 458} Id., lib. IV, n. 592 et 593 ; Homo apost., X, 68.

This composition is made through the bull of the Crusade, for those to whom it has been granted, for example, in Spain, in Sicily, etc. It can also be obtained from the Holy Penitentiary, to which, by the bull Pastor bonus, was granted the faculty of remitting part of what has been wickedly taken or retained, if the owner is uncertain, the case occult, and the offender poor. But the part which is not remitted must be given to the poor, or expended on pious works, and indeed, if possible, in those very places where the unjust acquisition of those goods was made.

As regards the bishops, the truer opinion holds that the faculty of composition does not belong to them, since it is an act of supreme power. ^{459 459} Id., lib. IV, n. 696.

III. Sanation concerning the goods of the Church unjustly alienated is then said to take place when the supreme Pontiff, as supreme administrator of the goods of the Church, validates alienations of this kind on account of a just and most grave cause. — Thus he validated the alienations made at the time of the French upheaval. — The following things can be set down here concerning it.

You will ask 1° what usurped goods of the Church can now be retained.

I answer: 1° Regard must be had, in the various regions, to when the sanation was made by the Holy See. Now it was made: 1° For England, after Henry VIII, by the faculty granted by Julius III to Cardinal Pole. — 2° For France and Belgium, on 15 Aug. 1801, by the bull Ecclesiam. — 3° For Piedmont and the duchy of Genoa, on 20 Dec. 1816, by the Brief Datis ad nos demum. — 4° For the kingdom of the Two Sicilies, on 7 March 1819, by the constitution In supremo. — 5° For Prussia, on 16 July 1821, by the constitution De salute animarum. — 6° For the whole kingdom of Sardinia, on 14 May 1828, by the bull Gravissime of Leo XII.

Moreover: 1° For France, Pius VII, on 20 Oct. 1821, addressed a Brief to the bishop of Poitiers, in which it is declared that the concession made can be applied to all ecclesiastical goods previously occupied by the government, that is, before the convention of the year 1801, whether or not it had already alienated them. — 2° For Belgium a similar declaration was made on 16 Sept. 1833, by the Brief Epistolam of Gregory XVI, so that anyone might buy the goods which at that time were still held by the government.

2° Regard must be had to the conditions attached. Indeed: 1° The Holy Penitentiary replied thus to the most illustrious Mr. Bouvier, 10 March 1818: « The Holy Penitentiary, by express Apostolic authority, declares to the asking orator that the ecclesiastical goods (occupied by the French government before the convention entered into in the year 1801)... are in the full ownership of the acquirers, so that they can retain them, enjoy them, and even alienate them safely and freely, in the forum both external and internal, provided nevertheless that the acquisition was made according to the laws then in force. It exhorts, however, these acquirers, out of their piety and religion, to satisfy the pious burdens of Masses, alms, and other similar things, which perhaps were once attached to those goods. ⁴⁶⁰ » 2° Similar rescripts appeared for Upper Italy, in the years 1845 and 1847. ⁴⁶⁰ Bouvier, de Contract., p. II, c. 2, art. 1, § 3, sect. 1.

You will ask 2° what ecclesiastical goods are still subject to restitution, and how.

I answer: 1° Subject to restitution are all those things which the Pontiff has not forgiven, namely: 1° goods which were never occupied by the government, but escaped its hands, because either they remained with private persons, for example, the tenants of those goods, or were usurped by those private persons themselves; 2° goods which were occupied by the government after the conventions with the Holy See had been entered into; 3° goods which, while the conventions were being entered into, the government promised it would hand over to the Church, yet afterwards were not handed over. All these things are evident of themselves.

2° The restitution of these goods must be made according to the rules ⁴⁶¹ to which possessors of good or bad faith are subject, namely according as the usurpers, or their heirs, act in good or bad faith. ⁴⁶¹ Cfr. Analecta iuris pont., series V, col. 122.

Note. The remission made by the supreme Pontiff does not of itself free from the ecclesiastical censures which the usurpers incurred. Nevertheless Leo XII, by the bull Gravissime, absolved all of the kingdom of Piedmont, whether laymen or ecclesiastics, from whatever censures and penalties incurred on this account.

You will ask 3° whether the faculty of buying usurped and not yet forgiven goods of the Church can be obtained, for example, goods usurped in Italy since the year 1860?

I answer: « Today this faculty is not so easily granted by the Church, unless extraordinary circumstances are present, or the matter concerns persons conspicuous for probity of morals and zeal for religion, who are judged, by prudent judgment, to have been moved toward the said purchase chiefly by the greater utility of the Church and of the persons to whom those goods belong of right; who moreover must provide, either by testament or in some other way, that those goods after death pass to those who will keep the prescription of the Church. ⁴⁶² » ⁴⁶² Del Vecchio, I, n. 587.

Furthermore, that such a faculty may be obtained, recourse must be had to the Holy Penitentiary, with the name and surname of the petitioner withheld, and the commendation of his proper bishop obtained. The faculty, once granted, is usually sent to the Ordinary of the diocese, who uses it under the following conditions, to be accepted and subscribed by the same persons, and carefully kept in the episcopal chancery, namely: « 1° To retain the same goods at the nod of the Church, and to obey its commands forthwith. — 2° To preserve the same goods, and to conduct a profitable administration in them. — 3° To satisfy the pious burdens, if any be attached to the said goods, and out of their fruits to aid the persons and churches to which the same goods respectively belong of right. » (In other Rescripts is read: « And to expend the revenues of those goods, which, proportion being made, exceed the price paid, either in favor of the persons or places pious to which the said goods belong of right, or in satisfaction of the price paid in the purchase, insofar as the buyer wishes to restore it, and with the counsel of the Ordinary. ») 4° To inform the heirs and successors of obligations of this kind by written instrument, so that they too may know to what they are bound. »

These likewise are accustomed to be the conditions when the faculty is granted to the Ordinary, either of himself or through well-approved confessors, to indulge buyers so that they may retain the goods; the license of purchase coming after absolution from the ecclesiastical censures and penalties, with a salutary penance.

« As regards fulfilling the burdens attached to the goods, and aiding out of the fruits, etc., what is already paid by the government to the despoiled persons and churches can be computed. » Holy Penitentiary, 23 March 1873.