Doubt III: On the causes excusing from restitution on the part of the creditor

The first among the causes is judged to be free remission, made by the Creditor, which must be made neither by force nor by fraud, as Caiet. distinguishes, here, art. 6. and in sum. v. Restitutio, cap. 6. Ioan. Medina quaest. 3. de rebus restit. cap. 2. Navar. in man. cap. 17. num. 73. Valentia disp. 5. quaest. 6. pun. 6. puncto 7. Caspensis disp. 1. num. 163. Graffius Lib. 2. decis. cap. 131. Sylvest. V. Iudex, 1. quaest. 8. Turtecremata in cap. si res 14. quaest. 6. Fagundez Lib. 7. cap. 30. Tanner. disp. 4. quaest. 6. dub. 15. num. 438. who add that care must be taken lest the remission be impeded by law and invalidated; for it can be invalidated for the common good, rendering the debtor unfit for such a benefit of remission, and in fact Canon Law invalidated it, cap. statum, de rescripc. in 6. when an Ecclesiastical Judge receives something beyond victuals; for in that chapter he is bound to restitution, and there the remission of that obligation is invalidated; Likewise if a Bishop, or Archbishop, visiting the Churches, receive anything beyond what is necessary for food, according to cap. 5. and 6. de censibus, and extract. in 6. Si iudex delegatus let him receive anything from the parties against cap. statutum, de rescripc. in 6.

The second cause is spiritual or bodily harm, which the creditor would incur if restitution were made at such a time, or in such a place, as D. Thom. teaches, art. 5. ad primum, and commonly. Hence a sword is not to be returned to a madman, lest he kill with it; nor money, which he might spend to the ruin of the Republic, or of others. Ambrose also taught this, Lib. de officiis, last chapter, and many others as gathered by Fagundez Lib. 7. capite 30. num. 32. Bassaeum V. Restitut. §. 1.

But they ask: Whether the debtor is excused from Restitution, if the creditor is an excommunicatus vitandus.

It is answered negatively, with the Maior 4. dist. 15. quaest. 4. Sylvestre V. Excommunicatio, 5. quaest. 12. Ioan. Medina quaest. 3. de rebus restit. cap. 9. Couar. in regula Peccatum, part. 1. num. 10. Valenria quaest. 6. puncto 7. Lessius Lib. 2. cap. 16. dub. 9. Tolet. Lib. 4. de restit. cap. 4. disp. 15. num. 24. Suarez de censuris, disp. 15. sect. 8. Maldet. tract 4. cap. 7. dub. 6. Fagundez L. 7. cap. 30. num. 29. Tanner. 445. and others commonly, against Panormitanus cap. veritatis, de dolo.

It is proved, because in the sentence of excommunication he is not held to be deprived of his right concerning his own goods, nor is necessary communication prohibited, as all confess.

You will say: cap. Nos sanctorum; and cap. Iuratos, 16. quaest. 5. and cap. ult. de Haeret. subjects are absolved from the oath of fidelity owed to a lord who afterwards fell into excommunication.

It is answered: not on that account is he deprived of the right to his goods, nor are the odia to be extended, but restricted.