XXX. In What Order Restitution is to be Made

How manyfold is the order of restitution? - The order of restitution is twofold: the first on the part of those who ought to restore, when several have cooperated in the same damage; the second on the part of those to whom restitution ought to be made. L. 579.

What order is to be observed as regards cooperators? Cooperators in the damage of another are either held to restitution for a proportional part, or are held to restitution in solidum, namely each one to restoring the whole. If the first, no order necessarily has to be observed among them. If the second, order among them necessarily has to be observed. For then the obligation of restoring in solidum is an obligation by which one is held to restore or repair the whole damage inflicted by several, when several concurred together to inflict the whole damage. Therefore it is altogether necessary that order be observed. For he who has suffered damage has a right only to one integral restitution or reparation of the damage. Therefore several damagers cannot be obliged in solidum absolutely, but only conditionally, namely if others who are held prior do not pay; or if others who are held at once together do not pay. L. 579.; St. Thomas, 2. 2, q. 62, a. 6 ad 3.; a. 7 ad 2.

What order is to be observed as regards cooperators obliged in solidum? - If cooperators concur by a diverse species or grade of cooperation, then in the first place the principal causes of the damage are held; so that there is held: 1. The possessor of the thing, in individual form or in its equivalent, indeed even if he unjustly destroyed the thing without becoming richer from it. 2. The one commanding; yet if the one commanding was the principal cause both of the taking away of the thing and of its destruction, or only of its destruction, then he is held in the first place, as the principal damager. 3. The executor, namely the mere executor of the damage inflicted, as an instrumental cause.

But in the second place secondary causes are held; so that there are held 1. the remaining positive cooperators; 2. negative cooperators. The reason is that each one is held to restitution according as he influences the damage of another. Positive, secondary causes, such as one counseling, consenting, praising, participating, since some are not subordinated to others, are held equally, in the same place, yet more or less according to greater or lesser influence, if there is question of restitution for a proportional part. Among negative causes those are held first which influenced the damage more immediately and more. And so the guard is held first concerning the fire of a forest, then the steward. L. 560, 580.; St. Thomas, 2. 2, q. 62, a. 7.; C. A. 1301, 1302, 1304, 1312.

Resolutions: Secondary causes are held to nothing if the principal cause has restored or has obtained remission of the debt. For secondary causes are held only in the defect of the principal cause. But when the principal ceases, the accessory ceases. Hence, if one of the secondary causes restores, the principal cause is held to make it harmless; likewise, if a secondary cause is freed by the creditor, the principal cause is not therefore freed. For the obligation of the latter is independent of the obligation of the former. St. Thomas, 2. 2, q. 62, a. 6 ad 2, a. 7 ad 2.

What order is to be observed as regards several equal cooperators? - If cooperators concur in the damage of another by the same species of cooperation, or by the same grade of cooperation, then each equally ought to restore in solidum, yet conditionally, without any determined order; for none of them, as more influencing the damage of another, took upon himself a greater burden of reparation. But it is said conditionally, namely if the other cooperators do not restore, or no one pays in solidum. But all are held absolutely to satisfy for a proportional part, since all equally concur in another's damage.

Resolutions: If one of the causes equally obliged has restored the whole debt, the others are held to pay back to him the part which he also gave for them, and each is held for his own part. For in regard to him the reason for restitution in solidum does not press; since each one is not the cause why he first restored the whole and the others do not restore. But if several from causes of this kind equally obliged were to restore, and one could not or would not restore his part, the others would have to divide it among themselves. If the creditor remits his debt to one of the debtors equally obliged, he is judged to remit to the others that one's part; for if he exacted the whole from the others, they would compel him to restitution, and so the remission would be frustrated. L. 581. But the others are still held to restoring their own part, unless the condonation was altogether full, or is deservedly presumed to be such. - From C. I. 1281.; C. G. 1285., remission made to one solidary co-debtor frees all the others entirely, unless the creditor expressly reserves to himself rights against them. Likewise from C. I. 1195, 1196.; C. G. 1210, 1211., a creditor who consents to the division of a debt for one of his debtors preserves against the others a solidary action, with that part of the debtor whom he freed from solidarity deducted, according to C. G.; and without it being deducted, according to C. I., since the matter was done among others. Moreover, a creditor who receives from one the portion offered by him without any protest tacitly remits to him the solidary obligation. And if for ten continuous years he receives this portion, he will no longer be able to act for the solidary obligation.

Whether the executor is held prior to one counseling for making restitution? - Resp. "If the counsel is useful to the one furnishing it, he himself is held first; otherwise, if it is useful to the executor alone. But if it is useful to each, each is held pro rata; and I think the same if no utility came to either from the damage inflicted. But in the defect of the other, that one is held in solidum." L. 560.

Yet it must be noted that although the unlearned are held in solidum, it is rarely expedient to oblige them to the whole, since they will with difficulty persuade themselves that they are held to restoring the part taken away by their associates. Indeed it can be sufficiently presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them, since otherwise there is great reason to fear that they would restore nothing if they were obliged to the whole." L. 579, 580.; Gousset 977.

What order is to be observed in restitution as regards creditors? - The order, as regards creditors, of restitution does not have place unless there are several creditors. In such a case, if the debtor can satisfy all, he can restore in whatever order, because the precedence of one inflicts no damage on another. But if the debtor cannot restore to all, the due order in restitution is to be observed, on account of the opposite reason, namely because the precedence of one inflicts damage on another. Moreover this order is determined by justice itself. For restitution is the reparation of an injured right. Therefore the preference of right determines the precedence of restitution. Now this injured right is the right of property. Therefore a more perfect right of property in creditors demands that they be preferred to others. L. 684.; C. L. 878. Wherefore, first, creditors who are still truly owners of the thing are to be preferred to all others, since they preserve in their own thing not only a right to the thing, but also a right in the thing, while the others have only a right to the thing. And so before all other debts stolen things, deposited things, leased or lent things are to be restored. Secondly, privileged creditors are to be preferred to the rest. For restitution is to be made by natural right, and on account of the private good of persons, which commutative justice directly regards. Therefore, if positive right is added to natural right, prescribing for the common good the preference of some creditors in particular, these indeed by reason of the privilege of the law are to be preferred to the rest, as privileged. And this law obliges in conscience according to the common opinion of theologians, since it is a legitimate law of a superior, passed for the common good. C. G. 2095.; C. I. 1945. Some privileged debts have a privilege over the generality of movables, others over determined movables, others over immovables. If there are several privileged creditors, their preference is determined by the law itself according to the quality of the privilege. And, if several enjoy the same privilege, they obtain payment of the credit pro rata. C. G. 2096, 2097.; C. I. 1953, 1954. Privileged debts over all movables, and subsidiarily over immovables, are in this order: expenses which are called those of justice, funeral expenses, expenses made for illness from the last six months, expenses for support from the last six months, wages of servants also from the last six months, and credits of the State for direct taxes.

C. I. 1956, 1959, 1963. Cf. C. G. 2101, 2105.; C. H. 1924.; C. L. 880 seqq. - C. I. 1952 seqq.; C. G. 2092 seqq.; L. 14 § 1, L. 45 de Relig. et sumpt. etc. Privileges over determined movables are: certain determined credits of the State; of the emphyteutic canon; of leases of urban and rustic estates; of expenses for cultivation of fields; of the pledge creditor; of expenses for the conservation of the movables themselves; of innkeepers; of transportation and taxes; of indemnity to be furnished by public officials; of sums to be paid by public administrators. C. I. 1958 seqq. Cf. C. G. 2102.; C. H. 1922.; C. L. 880 seqq. Privileges over immovables are: credits for expenses of expropriation of immovables; of the State for land taxes, for rights of registration, for any other indirect tax. C. I. 1961, 1962. Cf. C. G. 2103.; C. H. 1923, 1927.; C. L. 887. Privileges over immovables do not have effect unless they have been legitimately inscribed in the conservatory registers of mortgages. C. G. 2106. Cf. Tropolong in h. a. Thirdly, mortgage creditors are to be preferred to the rest, for these have bound to themselves not only the person, but also the very goods of the debtor. Where there are several mortgage creditors, they have the order constituted by the law itself, either from the day of inscription in the conservatory registers of mortgages, or from the very day of the constitution of the mortgage, according to Reg. 54 of Canon Law in the Sixth: He who is prior in time is stronger in right. L. 690.; Laymann de Restit. c. 11, n. 3 seqq.; C. I. 1964 seqq.; C. G. 2114 seqq.; C. H. 1928, 1929. Fourthly, finally, the remaining creditors, who are called common or chirographary, are to be made harmless. But whether among these some order is also to be established from circumstances of time, persons, contract, delict, and of the things themselves, is a question; and some generally deny it, because commutative justice regards only equality of thing to thing, which is altogether independent of conditions of times, persons, contracts, and the things themselves; others on the contrary generally affirm, because restitution is for repairing an injured right and for making good the damage inflicted; but from various circumstances of time, persons, contracts, things, the right is various, and the damage is less; therefore according to those circumstances an order is to be established in restitution even of common creditors. But chiefly those circumstances are the ones about which the following particular questions are raised. L. 689, 694, 695. From C. I. 1948-1950, 2092.; C. G. 2092-2094.; C. H. 1911., whoever has obligated himself personally is held to satisfy his obligation from all his goods, whether movable or immovable, present or future. Therefore the goods of the debtor are like a common pledge of his creditors, and they are equal in the right of exacting what is theirs, unless legitimate causes of preference exist among them. But the legitimate causes are privileges and mortgages. Wherefore all the others are esteemed equally, and all concur pro rata, if the debtor cannot satisfy all. - C. H. 1921 seqq.

Whether another's thing existing with the debtor must always be restored to its owner before all debts, however privileged? Resp. Affirmatively, if the thing is held by title of deposit, lease, etc. For that thing, existing in individual form, cries out for its owner. L. 684. If the thing is held by title of purchase, the price not having been paid, or at least not secured by pledge, surety, or given faith, it certainly must be restored to the seller according to Roman Law; for the seller still retains dominion of the thing. But when the seller has handed over the thing, and has received only credit concerning the price, it is controverted. "The first opinion says that then the seller is to be preferred....

The reason is both because natural equity demands this, and because the dominion of the thing, although in that case it has been transferred, nevertheless has been transferred under the condition of paying the price; hence such a thing remains mortgaged for the payment of the price. But the second and more probable opinion... holds that no preference is owed to the seller. The reason is that since dominion has already been transferred, there remains to the seller only a personal credit toward the buyer; and it is held by no right that the thing remains mortgaged to the seller until the price is paid to him."

L. 685. From C. I. 1512, 1513.; C. G. 2102, 2103., a thing sold, the price not having been paid, remains bound to the seller as regards the payment of the price against all other creditors, yet after the owner of the house or estate for the price of the lease, if the thing is movable. Indeed the seller can reclaim this, if no day for paying has been appointed, within 15 days from C. I., within 8 days from C. G., from the handing over of the thing; and from the same C. G. its price is always privileged, if the thing is movable. If the thing is held by theft and has been mixed with one's own things, satisfaction must be made to the owner of the thing before all other creditors, because the whole heap is specially bound to the owner of the thing taken away. L. 686. Cf. 907.

Whether debts whose creditors are known are to be restored before other debts to the poor or to pious causes, because their owners are unknown? - It is controverted. The first opinion, probable and common, affirms; because the owner is not judged reasonably unwilling, both by reason of the debtor, who would often have to be pursued by another creditor, and by reason of the other creditor, who is made harmless, since he himself cannot be. Moreover, because certainly from justice it is owed to the former, and probably from canon law to the latter. The second opinion, also probable, says that restitution can then be made pro rata to the poor. For the preference of a known owner is demonstrated neither by positive right nor by natural right. For by natural right the poor or pious causes succeed to the unknown owner, that what is his may profit him; namely, that what cannot be restored to him may profit his soul. But probably restitution must first be made to uncertain creditors rather than to unknown ones; because first those must be made harmless who probably have suffered damage, rather than those who certainly have suffered no damage. - L. 687.

Whether debts from delict are to be paid before debts from onerous contract? It is controverted. The first probable opinion affirms, because to retain a thing injuriously taken away is a graver injury than not to pay a thing owed from contract. The second, more common and more probable opinion denies it, but says they are to be paid pro rata; because from positive law no such preference is had; but from natural law the obligation which arises from commutative justice is the same in contract as in delict; and delict is blotted out by repentance, not by restitution. - L. 688.

Note: It is certain that debts from a gratuitous title, even pious ones, are to be paid in the last place, because these always include the tacit condition: unless something prevents. - L. 688, 689.

Whether common creditors, prior in time, are to be preferred to later ones? It is controverted. "The first opinion holds that satisfaction must be made to all these pro rata.... The reason is that not the goods of the debtor, but the person, is bound to these, and he is equally subject to all." But positive right establishes no preference among them. Indeed Roman Law establishes: "it is licit for someone, by adding a creditor to himself, to make the condition of his creditor worse." The second opinion "teaches that the earlier ones are to be preferred from Reg. 54 of Law in the Sixth: He who is prior in time is stronger in right. For although civil law speaks thus only of mortgage creditors, nevertheless canon law speaks of all, and is founded on natural right; for an earlier personal creditor, although he directly has the person of the debtor bound, nevertheless indirectly also has his goods bound, in which he ought not to be prejudiced by a supervening creditor. Each is probable, but the second more probable." L. 690.

Whether poor creditors ought to be preferred to the rich, or to those not in need? It is controverted. The first probable opinion denies it, because such preference is had neither by positive right nor by natural right; for commutative justice does not attend to persons. The second probable opinion affirms, "because the obligation of restitution is given for repairing the damage of neighbor; but a poor man suffers more damage if restitution is not made to him than one not in need." L. 691.

Whether it is licit to pay first the one first asking, even if he is later in time? Resp. Negatively, if the creditor prior in time is privileged or mortgage-holding; and therefore one acting otherwise is held for the damage. If the creditor prior in time is common, and he asks for payment in court, affirmatively. Thus commonly, "because the laws give preference also in conscience to the matter, to him who first obtained sentence, and after it also the debtor must pay him in conscience." L. 692.; C. I. 1970.; C. G. 2123. But if he asks outside court, it is controverted. The first opinion denies it, because prejudice is done to earlier creditors, to whom preference belongs. The second opinion more probably affirms, because a personal creditor has action against the debtor, and, by asking for the whole debt, pursues his right. L. 692.

Whether a debtor knowing his state to be tottering can satisfy integrally even one not asking? - Resp. Negatively. For since all are equal in right, and no one becomes stronger by diligence in asking, from natural equity restitution cannot be made to one with detriment to the others. Wherefore, speaking of itself, a debtor sins gravely against charity and justice by secretly admonishing one of the creditors about his tottering state, or in that case by offering integral payment to only one. Yet there are not lacking those who permit the debtor to admonish a creditor, because it is licit for him to advise what it is licit for the creditor to do. But it can be urged in reply that it is not licit for him to advise what he himself cannot do, and the adversaries themselves admit this. L. 692.; Lugo d. 20, n. 174.

Whether a creditor who, in this last case, accepted payment is held to restitution toward the other creditors? - It is controverted. The first probable opinion affirms; because he has no right that payment be made to himself integrally with detriment to the others. The second probable opinion denies it, because he received his own; and since he has the right of exacting even outside court, he violates the right of no one by accepting payment. Except, however, the cases in which such payment is declared invalid by law. L. 692, 693. From C. I. 1237.; C. G. 1235.; repetition of what has been paid is not admitted as regards natural obligations which someone has voluntarily satisfied. Yet from the same C. I. 1235.; C. G. 1167., creditors have the right of impugning all acts which the debtor performed in fraud of them. From C. H. 1291, 1292, 1297, 1298., payment of this kind, as also generally such debtor's contracts, whether gratuitous or onerous, are rescindible. One receiving anything in bad faith in fraud of creditors is held to restitution and to reparation of damages. - C. L. 1030-1045.