XXXIII. On Causes Excusing from Restitution

What things generally excuse from restitution? - All those things excuse for a time, or even exempt totally, which cause the creditor reasonably to have to be content, even if in fact he is not content. - L. 696, 700.

Whether remission, whether express or tacit, freely made by the creditor, indeed even reasonably presumed, excuses from restitution? - Resp. Affirmatively. The reason is that if the owner is not unwilling, the omission of restitution will not then be unjust. Hence you will more easily excuse sons of the household in things of lighter moment, servants in common things to be eaten and drunk, etc.

L. 700.; Lugo d. 21, n. 51.; Ferraris v. Restitutio a. 5, n. 34. As regards the usurpation of ecclesiastical goods, a very ample faculty of condonation was made by Julius III, Lett. 28 June 1554, after the schism of Henry VIII, for England, and by Clement XI, 10 Nov. 1712, for Saxony. But toward the end of the eighteenth century in France, after the Concordat of 15 July of the year 1801, those who had bought those usurped goods from the Government before the mentioned Convention, or bought them after that Convention when alienated, but usurped by the Government before that Convention, could retain them altogether as their own, dispose of them freely, and transfer them to others. Freely, without any attached obligation of fulfilling the burdens of Masses, alms, and other similar things, Concord. art. 13.; Pius VII, Bull 27 July 1817, Brief 20 Oct. 1821.; S. Poenit. 20 Mar. 1818.; Gousset 937. The same is valid in relation to occupations continued by the French Government up to the end of the year 1814 on the left bank of the Rhine; this was afterward extended to ecclesiastical goods which in the whole kingdom of Prussia were secularized up to the end of the year 1824, and at present are possessed by private persons as their own, or will be possessed in the future. From Concess. 27 Nov. 1891, 7 Feb. 1894. Likewise, those who in France at the time of the revolution toward the end of the eighteenth century acquired the goods called national, or the goods of emigrants, proscribed by the Government by decree 27 July 1792, are excused from all restitution, but for another reason. For the Government, by the law of 25 Apr. 1825, burdened itself with furnishing that indemnity, as a debt of the State itself. Gousset 938. For Belgium, to which the Concordat of the year 1801 was already extended, there is also the Brief Epistolam of Gregory XVI, 16 Sept. 1833, where first that Concordat or Convention is extended to any other goods whatsoever from those occupied, as above, which either were alienated by the Government after that Convention, or still remain with the Government itself. This extension perhaps was necessary for this reason, that not a few of those goods which were located in Belgium had been occupied after the Convention. Moreover, those who in Spain bought goods of the Church usurped by the Government before the year 1851 and 1859 possess the same goods with a safe conscience, and are bound by no obligation of pious burdens, on account of the Concordat of the aforesaid year 1851, and the Addition to the Concordat of the same year 1859. As regards the ancient dominion of Sardinia, for the County of Nice and the Duchy of Savoy, now united to France, there is the Concordat of the year 1801; for Piedmont and the Duchy of Genoa, the Brief Datis ad nos, 20 Dec. 1816.; and for the whole kingdom of Sardinia, the Bull Gravissimae of Leo XII, 14 May 1828, by which there is sanation of all ecclesiastical goods which had been occupied by the Government before the Conventions entered into and were alienated by the same before those Conventions or even after them, with likewise no obligation of fulfilling the pious burdens attached to those goods. Likewise, in the kingdom of the Two Sicilies, those who bought from the Government ecclesiastical goods usurped and alienated before the year 1818, on account of the Convention 17 Mar. 1819, art. 13, made them their own, so that thereafter they were altogether unchangeable in the possession of them and of others having cause from them. For a most full remission was made by the Supreme Pontiff for all ecclesiastical goods usurped in this way, and the pious burdens attached to them; this condonation is also had by force of the composition made as regards ecclesiastical goods usurped in more recent times after the year 1860 in Italy, namely as regards those who made the aforesaid composition. Likewise it is tolerated that parish priests receive a congrua from goods not of their own church, but of other moral bodies. A. S. S. v. 32, p. 505 seqq.; A. A. S. v. 2, p. 602 seqq. - Scavini v. 4, n. 219, ed. 12, Milan, 1874.; Gur. Baller. v. 1, n. 750 seqq., Barcelona, 1882.; M. E. v. 10, p. 2, p. 91. Composition is a certain partial remission of debt made by the Supreme Pontiff, as regards ecclesiastical things, and as regards profane things, when the owner is unknown or it is no longer probable that he will appear. - Bishops at present have from the Holy See a special faculty of admitting to composition the faithful who have unduly acquired ecclesiastical goods usurped by Governments, yet within the limits of the Indult granted.

Whether damage to be impeded excuses from restitution? "It is most probable that you are not held to restore a thing which the owner is going to abuse for sinning: indeed if he is foreseen to be going to abuse it to the damage of a third party, you would sin by restoring it, when you could deny it without your own graver or at least equally grave damage.... And then you would sin by restoring not only against charity, but also against justice. The reason is that neighbor has a right that you not hand over anything to another for his destruction." L. 697. Yet others more truly hold that then there is sin only against charity and not also against justice, because the cooperation is material and not proximate, which charity, not justice, forbids; since that action of restoring his own is not of itself illicit and unjust, but indifferent, which another abuses by his malice. - C. I. Poen. 63.; St. Thomas, 2. 2, q. 62, a. 5.

Whether impotence excuses from restitution? - Not only physical impotence, which is had in extreme or quasi-extreme necessity, excuses from restitution, but also moral impotence, or grave difficulty of restoring, e.g., if you cannot live according to the decency of your state justly acquired by you, otherwise if unjustly acquired; if you cannot restore without danger to life or notable detriment of goods or reputation; if restitution cannot be made without danger to your salvation or that of yours. The reason is 1. because otherwise you would sustain more damage than you inflicted in several of these cases, if not in all; 2. more generally, because what is very difficult, and what cannot be done decently and honorably, cannot reasonably be urged by the owner; since justice does not exclude charity and prudence. And this indeed is valid, as is clear, although the debtor culpably cast himself into such straits. L. 697, 698, 702.; St. Thomas, 2. 2, q. 62, a. 8 ad 2.; Ithur. Cas. 16, n. 10, 11.; C. B. 275.

Resolutions: "If a nobleman, e.g., cannot pay immediately unless he deprives himself of servants, horses, arms, etc.... or a craftsman unless he sells his tools, by which he lives, or undergoes great damage, he can defer and restore little by little without the loss of his state." L. 698. "Likewise you are excused from restitution... if there is danger lest wife or daughters prostitute themselves, lest sons give themselves to robberies, lest you yourself through impatience fall into despair." L. 648. "But you are held to restore even with your own damage if, restitution having been omitted, the owner is going to suffer equal damage." L. 697.

Whether the debtor is excused from restitution by reason of necessity if the creditor also is in necessity? - "If the debtor cannot provide for himself otherwise than by the goods which he ought to restore, then he is not held to restore them and cast himself into extreme necessity, even if the creditor is placed in the same necessity unless the debt is restored to him.... The reason is that then all things become common.... Except unless precisely because of that taking away the owner has been cast into extreme necessity, because the condition of the owner possessing first ought to be better." L. 701. "If the creditor is already suffering grave necessity, and the debtor is not then laboring under it, but will labor under it by restoring, certainly he is held to restore, into whatever grave necessity he is to be placed," because in equal necessity the condition of the innocent is better, if the debt is owed from delict; likewise the condition of the creditor and owner is better, if it is owed from contract. L. 697, 698.

If the debtor is already placed in grave necessity, whether he is held to restore when the creditor likewise labors under the same necessity is controverted. The first opinion affirms, because again the condition of the innocent, the creditor and owner, is better, and therefore he is to be preferred. The second opinion denies, because since the debtor "already labors under grave necessity, certainly he could not restore except with very grave inconvenience, so that he would seem to cast himself as it were into extreme necessity." L. 703. Except again unless precisely through that taking away the creditor has been cast into grave necessity. L. 703.; St. Thomas, 2. 2, q. 62, a. 5 ad 4.

Whether cession of goods made to creditors excuses from restitution if the debtor afterward becomes richer and can restore? Resp. Negatively. For if the cession is judicial, this is merely a benefit of law, so that one ceding goods may be immune from coercion in the external forum, as is clear from Roman, Italian, and French Law. But if it is voluntary, because the creditors compose the matter with the debtor since they can have no more, they do not therefore renounce their right as regards integral payment, if the debtor can at some time make it. Except if the creditors expressly or at least implicitly truly free the debtor from payment of this kind. L. 699.; C. G. 1265-1270.; C. I. Comm. 815, 830.; C. H. 1175, 1920.

Whether one ceding goods can secretly reserve something for himself? - Resp. Negatively, speaking of itself, if the thing is of great value, because he inflicts notable damage on the creditors. Affirmatively, if he reserves for himself only things necessary for the support of himself and his family. For as regards these the creditors cannot be reasonably unwilling. And this is admitted by C. I. Comm. 735, 752.; Gousset 772.; L. 699.; St. Antoninus 2 p., tit. 2, c. 8, § 3. Si tertio modo; Lugo d. 21, n. 41.; Ferraris v. Restitutio a. 5, n. 54, 55.

Whether he is excused from restitution who, forgetful of the debt, gave something gratuitously to his creditor? The first probable opinion denies it. "The reason is that since he is debtor both by title of justice and by title of an accepted donation, he cannot satisfy these two obligations arising from diverse titles by one payment." The second probable opinion affirms. The reason is that in every liberal prestation each one has a certain prior general will of satisfying obligations of justice, and a later actual will of donating. But "the first will prevails as the stronger and preceding." L. 700.

Whether entrance into religion excuses from debts to be paid? - If a religious gains something in religion, must he apply this to paying debts? - If a legacy comes to him, must he satisfy debts from it? - Resp. to the 1st: Entrance into religion does not directly free one, of itself, from debts to be paid, but indirectly; namely insofar as it licitly impedes the means by which debts can be paid. For, except in the cases prohibited by canon law, a debtor licitly enters religion, at least when he cannot easily and in a short time satisfy debts before entrance. Therefore by that very fact he is freed from the burden of restoring. For natural law no longer urges when the debtor cannot satisfy except with so great detriment of his freedom, and with danger of eternal salvation to be lost in the world. For the debtor is not held with so great an inconvenience to be deprived of the more perfect state of religion.

Resp. to the 2nd: Affirmatively, if he can easily labor, and the superior permits; for the state of religion does not of itself free from the obligation of restitution, but only licitly impedes it. Yet the superior is not at all held from justice to grant this permission, but only from charity, if no inconvenience opposes. Resp. to the 3rd: Negatively, if he has emitted solemn profession; because then he is incapable of dominion, and from canon law that legacy is acquired by the monastery. Affirmatively, if he has emitted only simple vows; because in that case the legacy is acquired by him. L. 1. 4, n. 71.; St. Thomas, 2. 2, q. 189, a. 6 ad 3.

Whether a debtor is excused from restitution in doubt of payment? Resp. Negatively in a merely negative doubt, because then no prudent reason of payment made is present. - In a positive doubt or probability it is controverted. The first probable opinion affirms; because an obligation is not to be imposed unless it is certainly established concerning it. Moreover, because, as St. Alphonsus says, l. 4, n. 107, "no legitimate possessor of his own is held to restitution who has for himself a probable opinion." The second probable opinion denies it, because a certain obligation is not satisfied by a doubtful fulfillment. The third probable opinion says restitution must be made pro rata of the doubt; because it is not equitable that as much be paid from a doubtful right as would be paid if the right were certain. The fourth opinion affirms in gratuitous contracts, denies in onerous ones. "Nevertheless," adds D'Annib. p. 2, n. 327, ed. 3, "if it seems probable that you or your author satisfied an obligation, even an onerous one, I judge that one can cease from payment, so long as the creditor, not ignorant of the obligation, does not ask." L. 1. 1, n. 82.; l. 3, n. 700.; l. 6, n. 477. Cf. here 1369, 1378.

Whether he is freed from restitution who pays the debt to the creditor of his creditor; e.g., I owe you 100 francs, but you owe 100 to Titius: do I satisfy by paying 100 to Titius? Resp. Affirmatively of itself, to the strict point of law. The reason is that I, by paying to your creditor that which you owe him, acquire the right which he had of requiring from you the debt owed to him; hence the right which I have against you is equivalent to the right which you have against me, and compensation is made. For your creditor can transfer his right to me, or I can buy it, just as any other who owes you nothing. Of itself; because I am not freed if perhaps you are still compelled to pay, or you have privileged or mortgage creditors. To the strict point of law; because such payment, if it is made without cause, will be illicit on account of the various inconveniences to which it is liable. But there is sufficient reason if your creditor cannot recover his debt.

L. 700.; Billuart diss. 8, a. 14, § 1.