Question X: In what order restitution is to be made

Human Laws are given prescribing order in restitution, and they bind in conscience, as Azor teaches, tract. 3. lib. 4. cap. 36. quaestio 7. Turrianus 2. 2. disput. 19. dub. 4. num. 5. cap. 10. Vasquez de restit. cap. 11. dub. 2. num. 50. Fagundez Lib. 7. cap. 35. num. 17. Valentia disp. 5. quaest. 6. puncto 10. The reason is, because the law could give the creditor a right before another, whether it be a municipal Law, or the civil law for the public good. But they observe, if the debtor is able to pay all, no order is necessary.

Therefore, first, by the law of nature certain debts are to be paid before uncertain ones, as they commonly admonish, gathered by Valentia loco citato, Sylvestrum V. Restitutio, Fagundez Lib. 7. cap. 35. num. 19. Tanner. disput. 4. quaest. 6. num. 412. Bassaeum V. Restit. 4. § 6.

Second, among certain debts, those are to be restored first by the law of nature, if they exist, whose dominion always remained with the creditor, and which therefore were to be restored the same in specie, as the cited Doctors admonish, as deposits, pledges, or things lent for use: And this is the common opinion in Tanner, num. 412. Leg. si curator, ff. de iure fisci.

Third, among certain debts of things which do not exist, and are not to be paid the same in specie, those at least by civil law are to be paid first which are specially called real debts, because the goods of the debtor are determined to their payment by an express hypothecation, or pledge, or because the price of the thing had not yet been paid by the debtor, and therefore the thing remained specially liable to payment, although it passed into the dominion of the debtor. So Medina quaest. 2. dub. 5. Caietanus, Nauar. Valentia, Tanner. num. 414. and others agreeably Lege 2. ff. Quibus causis, pignor. vel hypothec. tacite contrahuntur. For such debts are of a stricter obligation than mere personal debts, to whose payment no particular thing is assigned; and this order seems to be of the law of nature. Hypothecary creditors outrank personal creditors,² Leg. 2. 4. 5. Cod. qui potior in pignore. ² Editor's note: the print reads 'Hypothecarios sue edunt creditores personales', ungrammatical as printed; rendered per sense required by Cod. 'qui potior in pignore' — hypothecary creditors are preferred to personal creditors (iure antecedunt).

Fourth, Therefore, among certain debts not real but personal, those seem by the law of nature to be paid first which were contracted from a just contract, rather than those from a delict, as Nauarrus, Caietanus, and Valentia think. Yet they limit it, lest it be understood also of one convicted, through whom he who owes from a delict (as a usurer) has been made poorer.^{1 1} Editor's note: the print/OCR reads 'fieri[t] factus pauperior' — both the scan transcription and the OCR dump agree on this garbled wording; rendered as 'has been made poorer' as the most plausible sense.

In truth, those things are to be paid first which are held from a delict; say Medina supra, Salon. 2. 2. quaest. 62. art. 8. Emanuel Rodriguez part. 2. cap. 46. and others.

To me it is more probable that they are equal, as very many teach, gathered by Fagundez Lib. 7.; except the case in which someone sold a thing, and it remains the same in specie, and the seller has not received the price. I shall refer the Doctors casu 8. So also Tanner. num. 421. with Sylvestro, V. Restitutio, Aragon. quaest. 62. art. 5. Petrus Nauar. Lib. 4. cap. 4. Less. cap. 15. dubio 7. Bass. 4. num. 39. according to L. 6. Cod. de bonis authoritate Iudicis.

Fifth, among personal debts, apart from delict, those are to be paid first by civil law which are called privileged, as the Dowry of a wife, and what is owed to the Fisc. So Sylvest. V. Restitutio, quaest. 5. Nauar. supra n. 50. Valentia loco citato, and others. For these are preferred to others not having express hypothecations Leg. assiduis, Cod. Qui potest in pignor. hab. et Lib. Quamvis de Privil fisc. See Sylvestrum.

Sixth, among personal debts not privileged, those tacitly hypothecated are first to be paid; then, those contracted under the title of deposit (since the deposited thing no longer exists, or is not to be returned the same in specie), unless it were rather a Mutuum than a Depositum.

Seventh, in each genus of all the aforesaid debts of the same reason, those are to be paid first which are older, as is had in the Law: Prior in time, stronger in right. For the longer the creditor has lacked his own; the more strictly is it owed to him. So Sylvester, Medina, Valentia, Salon. loco cit. which Malderus, tract. 4. cap. 6. says is the more probable opinion.

I judge, however, that in conscience they are to be divided pro rata, computing the greater loss of the older creditor. So Malder. supra, Bassaeus V. Restitutio, §. 4. num. 26. Bonacina de Restit. disp. 1. quaest. 8. punct. 2. num. 19. Lessius Lib. 2. cap. 15. dub. 6. D. Anton. 2. part. tit. 2. cap. 7. §. 3. Molina Tom. 2. disp. 536. Vasquez opusc. de restit. cap. 11. disp. 2. a num. 48. Caspensis disp. 1. sect. 12. Fagundez Lib. 7. cap. 34. nor is a rule of law given except for real debts with a hypothecation, or the like, from Leg. 1. ff. de separationibus. EIGHTH, as to debts from delict, those are to be paid first which were contracted with greater guilt, Valentia and Medina hold.

Yet the OPPOSED opinion is more probable, that no order is given among these, for instance between stolen goods and goods seized by rapine, unless some offense has been added in these, which must first be made good. So Toletanus L. 4. de restit. cap. 6. dub. 8. num. 43. Azorius tract. 3. Lib. 4. cap. 36. quaestio 2. Sayrus L. 10. tract. 5. cap. 20. dub. 6. Lessius L. 2. cap. 15. dub. 3. Turrianus 2. 2. disp. 19. dub. 2. Vasquez opusc. de restitut. cap. 11. dub. 2. Nauar. summa, cap. 17. a num. 88. Fagundez Lib. 7. cap. 33. num. 7. who admit neither an order between debt from contract and from delict; nor any order among debts from delict. Caspensis says nearly the same, disp. 1. sect. 12.

The RATION is, because the injury, abstracted from the thing taken away, does not have its Commutative compensation in the thing itself, but in another order, as the cited authors note.

Restitution for each of the individual debts of Commutative and Distributive Justice is to be treated in the following disputations.

AMONG those cooperating in harm, the principal is he who commanded efficaciously, who had the authority of sending, as a Judge over a subject, a lord over a slave.

After him follows the executor of the harm: After him one who counsels, or commands; then the receiver: Likewise one who does not impede, when he was bound by his office. But among these the first place is held by him who has the thing formally, or in equivalent, in his possession. See D. Bonavent. cit. quaest. 3. D. Thom. quaest. 62. art. 7. Vasquez de restitut. cap. 9. num. 52. et 56. §. 1. Petrus Nauar. lib. 4. cap. 4. num. 75. Sayrum lib. 10. tract. 5. cap. 12. Sylvium loco cit. D. Thom. Bassaeum num. 27.

If the creditor remitted the principal, the others are freed; not so if less than the principal; But if an equal amount, the others are still bound in solid, the remitted part deducted. See Valentiam quaest. 6. puncto 3. Medin. quaest. 8. Vasquez cit. cap. 9. disput. 3. §. 1. Bonac. quaest. 8. punct. 1. Bassaeum num. 28.

IF however the prior Creditor is wealthy, and the later one poor and needy, restitution is to be made to him first, says Azorius part. 3. lib. 4. quaestio 4. The Ratio of D. Thom. and Medina loco citato, is, because one must first depart from the greater injury; but a greater injury is done in retaining the goods of the poorer than of the richer: But this Ratio is not approved by Azorius; who assigns another, supposing the poor Creditor to labor in such indigence as to be an object of mercy; and then he says restitution is owed to him; because, with this twofold precept of Justice and of mercy concurring, obedience is to be rendered to both rather than to Justice alone; and the richer creditor is bound to consent.

BUT the prior Ratio is indeed firm enough, nor would Azorius so easily have rejected it, if he had perceived that it coincided with his own; For therefore a greater injury is inflicted on the poor man, by subtracting his goods and not restoring them; because beyond Justice, since the burden of the blow falls above both creditors, the unjust appropriator was bound rather to relieve the poverty of the poor man, by giving to him of his own (if indeed he could), than to burden him further; wherefore the magnitude of the injury arises from the violation of mercy, which outweighs Justice in that case; and which the citizen is bound to restore; wherefore restitution to be made to the poor creditor does not then prevail from the concurrence of a twofold precept; but rather from mercy: For even if he were bound to restore by no debt of Justice; nevertheless by the law of Mercy he would owe to give to the needy, not to the rich creditor.

BUT if two Creditors are equal in right, but unequal in the Debtor's friendship, Medina says the whole debt cannot licitly be paid to the friendly Creditor; since by right it would have to be divided between both; yet if it has been paid to one before the other, he says he can be bound; which does not please Azorius; and indeed deservedly; For if the debt was to be divided with equal lot, so that both be satisfied; the part owed to one, and paid to the other, ought to be paid to the former; wherefore he says that he to whom it is paid unduly cannot retain it; since no friendship ought to harm Justice; likewise, if of two creditors, the later in time is the prior in receiving the debt, by whose payment the debtor becomes unable to pay the prior; then Azorius says, ad finem quaestio 7. that the later Creditor is bound to satisfy and restore to the prior, since he unduly received the latter's debt.