Question VII: When restitution is to be made, and the causes excusing from it

IT IS the common and certain opinion of all that he who unjustly detains a thing against the owner's will is under a continual actual obligation of restitution. So D. Bonavent. in speculo, cap. 8. in calce D. Thom. art. 8. Caietanus ibid, Sotus lib. 4. de Iust. quaest. 7. art. 4. Valentia quaest. 6. puncto 7. and the rest. But things acquired by contract do not oblige to restitution except at the appointed time, as the holy Doctor observes, whom all follow. See Tannerum disput. 4. quaest. 6. disp. 14. num. 44.

ALTHOUGH matters stand thus, nevertheless D. Bonavent. above, D. Thom. and others acknowledge certain causes which excuse from restitution, either always, or at least for a time, as long as they last.

Now these causes either hold on the side of the debtor, or on the side of the creditor, or on the side of the thing itself, or by reason of public authority.

On the side of the debtor, the first excusing cause is probable ignorance; yet not crass ignorance; whether it be of law or of fact, Caietanus verbo Restitutio, cap. 6. Nauar. in manuali, cap. 17. num. 82. Valentia loco cit. adduce it as excusing. But if it is crass or supine, it does not excuse. Such would be that of one buying a silver chalice from a soldier. See Fagundez Lib. 7. cap. 25.

THE second cause is doubt; for in doubt the condition of the possessor is the better, as the rule of Law has it.

THE third cause is poverty. So D. Bonavent., whom all follow.

THE fourth cause is necessity, when he indeed has wherewithal to restore, but he himself needs it, whether he labors under extreme necessity, in which nearly all concur; or even if it be a grave necessity, so that he may preserve the decent condition of his state honestly, as D. Antonin. part. 2. tit. 2. cap. 8. Nauar. in man. cap. 17. num. 63. Sotus Lib. 4. de Iust. quaest. 7. art. 4. Couar. relect. in regulam Peccatum, part. 1. art. 2. Valentia quaest. 6. puncto 7. Aragon quaest. 62. art. 8. and commonly others hold, as appears in Fagundez Lib. 7. cap. 27. and Tannerum disput. 4. quaest. 6. dub. 15. num. 429. Bassaeum V. Restitutio 5. num. 4. Bonac. disp. 5. quaest. ult. punct. 1.

THERE indeed arises a doubt: whether, if the Creditor also is in extreme need, the Debitor is bound to the extreme necessity of the Creditor rather than to his own.

SCOTUS 4. dist. 15. quaest. 2. Sylvest. V. Restit. quaest. 2. Azor tract. 3. lib. 4. cap. 39. and the cited Bassaeus say that he is bound to restore.

THE second opinion denies that he is bound. So it seems to D. Thom. 2. 2. quaest. 62. art. 5. ad 4. It is expressly defended by Valentia disp. 5. quaest. 6. puncto 7. Lessius Lib. 2. cap. 16. dub. 1. Malder. tract. 4. cap. 7. dub. 1., Sotus Lib. 4. quaest. 7. art. 1. Azor tract. 2. lib. 12. cap. 8. quaestio 6. Tolet. lib 5. cap. 24. Sayrus Lib. 10. tract. 5. cap 6. Fagundez Lib. 7. cap. 25. num. 14. Tanner. loco cit. adding: unless however the creditor has been reduced to extremity by his own withholding.

THE FOUNDATION is that in extreme necessity the Ius gentium ceases, by which the division of things was made, and the natural law is restored in its entirety, in which all things are common and come to be by way of the occupant's seizure, at least as to use, as the holy Doctor argues in Apol. paupert. cap. 1. quartae responsionis.

ON this foundation Malderus, Lessius, Sayrus, Fagundez above consequently infer that the debtor's parents also are to be preferred, if they lie in extreme necessity.

IT IS DOUBTED secondly: when creditor and debtor are both alike in grave necessity, is the latter bound to restore, falling from his station, so that, if he was a noble, he be compelled to become a craftsman?

SOME excuse him, and say he is not bound. So many hold, as appears in Fagundez Lib. 7. cap. 27. which opinion Malderus tract. 4. cap. 7. dub. 1. Tanner. num. 430. judges probable, together with Carbone quaest. 77.

YET commonly they say he is bound to restore: Azor tract. 3. Lib. 4. cap. 39. Petrus Nauar. Lib. 4. de restit. cap. 4. disp. 9. num. 53. Less. Tom. 1. de Iust. Lib. 2. cap. 26. dub. 1. Tolet. Lib. 5. cap. 24. Fagundez, Bassaeus loco cit.

THE REASON is that in grave necessity the Ius gentium remains in force.

THE fifth cause is grave loss in one's own goods, which the debtor would incur through restitution; as Caietanus loco cit. Ioan. Medina quaest. 3. de rebus restit. causa 4. Sotus Lib. 4. de Iust. quaest. 7. art. 4. Nauar. man. cap. 17. num. 56. Couar. loco cit. note; and the holy Doctor adduces this when he adds the condition: provided however the possibility of paying be present; for not only is he judged unable to pay who can in no way, but also he who cannot do so conveniently without, to be sure, grave loss, as appears ex Lege Nepos Proculo, ff. de verborum significatione, et cap. faciat, 22. quaest. 2. as Valentia notes loco cit. causa 5. Tanner. num 433.

HENCE one is not bound to restore at the peril of one's own good name. Wherefore they excuse the woman who does not reveal the bastard son she had from adultery. So admonish nearly all the Doctors, as appears in Valentia in the place lately cited. Which Fagundez in octavum Praeceptum decalogi, et in 7. Lib. 7. cap. 28. confirms with several arguments, especially from the declaration of Innocentius III. de poenitent. as Medina, Nauar. Couar. Valentia and others observe.

THE REASON is taken from D. Bonavent. locis allatis, quaest. 5. subquaest. 1. dub. 3. because the goods of a higher order are not to be restored for the goods of a lower order; but reputation is an order higher than riches: Therefore. The Major is certain; for restitution is arithmetic equality. The Minor is certain from Proverb. 22: A good name is better than great riches, and Ecclesiastici 41: Have care of a good name: for this will abide with you more than a thousand precious and great treasures, and Aristoteles 4. Eth. cap. 3. says: Honor is the greatest of external goods.

GREGORIUS de Valentia however, with Soto Lib. 1. de Iust. art. 3. ad 4. and Molina Tom. 4. disp. 702. hold that if the restitution be most grave and the loss of reputation be small, either because the woman was previously suspected or the like, the woman is bound to disclose herself, lest she squander an enormous inheritance from the legitimate heirs; for although (they say) reputation is by genus nobler than the goods of riches, yet it can be so small as to be inferior to them, in the way in which gold indeed is more precious than silver; nevertheless a tiny crumb of gold can be surpassed by a great mass of silver; Tannerus subscribes numero 434.

BUT Fagundez strongly protests num. 9. cap. 28. cum Petro Nauarro Lib. 2. de restit. cap. 2. part. 2. dub. 9. Corduba Lib. 1. quaest. 31. Vasquez opusc. de testam. cap. 5. disput. 10. Less. Lib. 2. cap. 10. dub. 7. num. 50. Malder. tract. 7. cap. 4. dub. 10. Turriano 2. 2. disp. 17. dub. 1. num. 10. et aliis.

NOR do the adversaries satisfy the argument of the Seraphic Doctor: For if they so diminish reputation as to reduce it to light matter, I do not refuse that one is bound to restore a great debt, even if it must be divulged, since one is not so prudent as to manage domestic affairs perfectly; But truly if we stand at the parity of grave reputation and money, the former is always of higher order, even if it be the reputation of a plebeian man; and in this case the similitude taken from the crumb of gold and the mass of silver is beside the point; For even in quantity, not to say in natural preciousness, gold is of greater worth; so too is grave reputation; as Fagundez num. 9. rightly noted with D. Bonavent. in speculo, cap. 1. where, citing that passage Proverb. 22. he admonishes that as light theft is venial, so is light detraction of reputation, which yields to the grave obligation of Restitution.

IT MUST ALSO BE EXPLAINED what sort of grave detriment in domestic fortune is sufficient to excuse from Restitution in the meantime; for the detriment considered as the expenditure of a large sum of money does not suffice, nor as the cessation of the profit due from that money; for this gain is not a detriment in one's own goods, but it is required that it be in the debtor's goods, either because he would fall from his station, or because he is compelled to sell his goods at a ruinous and pernicious price; for then the creditor is bound to wait, as Fagundez, Molina, Lessius, Valentia cited above note; and this is what D. Bonavent. cap. 2. speculi says, that one is bound to Restitution, provided however the possibility and opportunity be present. For such a time would be most gravely inopportune, and the creditor would exact unjustly at such a time.

THE sixth cause excusing from Restitution is the customary occupation of human life; for it is not necessary that one rise from bed at midnight, or rise from table at dinner, in order to pay, as Caietanus, Sotus, Valentia, and others commonly noted with D. Bonavent. cited above; but restitution can be deferred to a suitable time.

THE seventh cause is compensation made to the creditor in other temporal goods, either by conferring on him a burdensome temporal office, as Nauar. et Valentia say (I said temporal; for to give a spiritual one would be Simony), or by remitting to the creditor another equivalent debt, as Medina quaest. 3. et Valentia above, Tanner. num. 439. note.

THE eighth is compensation made by paying some legitimate creditor of his. So Medina, Valentia, and others.

THE ninth cause is the legitimate prescription of the thing, that is, such as it ought to be according to the canons, as Nauar. num. 85. et Valentia noted in the place cited.