Case LXXI: Two Cases of Restitution

I. Cajus, a wealthy man, has three sons, one of whom, Titus, is leading a dissolute life, and has incurred debts to money lenders. Unable to pay them, he leaves the country. The creditors expect to be indemnified, upon the death of Cajus, from the share in the paternal fortune which must fall to Titus. But Cajus is determined to prevent that any part of his property should fall into the hands of these money lenders, and sells his entire property to the two other sons. He sends Titus his legal share in cash, which the latter soon squanders, so that there now remains no prospect for the money lenders of ever getting their money. 1. What obligations have Titus and Cajus? 2. Was Cajus right in acting thus, with the intention of doing the money lenders out of their due?

Answer.—1. Titus is evidently obliged to make restitution. He who incurs debts must pay them. There is only one chance of escape: if, namely, Titus is a minor, and if a positive law exists for the bonum commune—as is contained, for instance, in the jus Romanum—which prohibits to claim from minors the payment of debts incurred in an extravagant manner. In such case Titus may refuse payment, if he has committed no fraud. But if such law does not exist, or if Titus is not a minor, there remains for him the obligation to make restitution. Of course he who has nothing can not make restitution, and thus Titus would be released. Must the father in this matter assume responsibility for the son? In his capacity as father certainly not. Yet Cajus appears to be the cause for the loss to the money lenders, because in order that his property should not fall into their hands he sold it to his other sons. To this no objection can be made. This sale does not render it impossible for Titus to pay his debts. On the contrary Titus now receives his lawful share and may pay if he so wishes. The father foresaw of course that Titus would not pay, and he suffered the loss to fall upon the money lenders. In this way one may, under certain circumstances, sin against charity, but against justice only if he is vi muneris to prevent damage to a third party. Who, however, can assert that Cajus was bound vi muneris to prevent a loss to the money lenders? Cajus has, therefore, committed no wrong toward the money lenders and need not make restitution.

Answer.—2. This question demands a new presumption. Cajus intended not only to save his property but to do the money lenders out of their due. He sells his property therefore to his two sons, and pays Titus his share out of the price received. The latter, of course, squanders this money. The father calculated correctly and the lenders lose their money. Did the father thus wrong these people? At first glance the answer seems to depend upon whether an intention can make unjust an act of itself just, and whether there is incurred responsibility for the consequences. Yet this is only so apparently. For the question about the influence of the intention upon a just act presupposes, and must presuppose, that this act is causa damni; it must be ascertained whether through the intention the causa iusta became a causa iniusta. This necessary presumption is lacking in our case; for Cajus through paying Titus his share, even with the purpose of doing the money lenders out of their due, is not the causa, but only the occasio damni, consequently free from the duty of restitution. Thus the theory; but in actual life the circumstances are often deciding. It is hardly conceivable that Cajus, determined to outwit the money lenders, did not also in one or another way, through his counsel, influence his son’s unjust conduct. If this is the case—from the statement of the casus this is not evident— then Cajus must assume the consequences of his consilium iniustum, and make restitution; of course only in second place.

II. Frank lends to Anthony, who is financially embarrassed, the sum of one thousand dollars without note of hand or security. Subsequently Anthony gives his daughter in marriage to Caius, making over to him in the marriage contract everything he possesses, and saying nothing of the one thousand dollars which he owes to Frank. After the death of Frank his heirs demand of Caius, who is in good circumstances, the payment of the thousand dollars, because Anthony had transferred his entire property to him. Caius, however, knowing nothing of this debt, affirms in court, upon oath, that he did not make this loan, whereupon the court decides against the heirs of Frank. 1. Must Caius make restitution for the debt? 2. Must Caius pay the costs of the suit?

Answer.—1. We presume that Anthony at the time he made the settlement possessed nothing outside of his real estate; we suppose further that he not now possesses anything, that he is not even in a position to earn anything and thus pay the debt.

Under these suppositions we say: Caius must give up the thousand dollars. But why? To establish this obligation there are several ways of arguing; we prefer the following: Anthony borrowed money of Frank. A debtor does wrong if he does not pay his debts, and also if he voluntarily places himself in a position that makes it impossible for him to pay the debt. Anthony did the latter by transferring to his son-in-law everything that he possessed. Hence Anthony must make good this wrong, as far as possible. There remains nothing for him to do but to reclaim from Caius that portion of his property needed to cover his liability, presuming that he can reclaim it. This he has the right to do, for the donation was in that part unlawful. The part, namely, which Anthony needs to pay his debts, he could not lawfully give away, particularly not if he wished in this way to defraud Frank, or his heirs, of their due. So are unlawful, according to all moralists, donations made by a merchant. after declaring bankruptcy. The profane law expresses itself in the same sense, and tolerates no donation where the money is needed to pay debts. The donation therefore in that part was invalid, consequently Anthony is obliged to lay the matter before his son-in-law, and demand the return of the one thousand dollars. In regard to this obligation of Anthony, it is Caius’ duty that he believe his father-in-law, for he has no reason to doubt; and furthermore that he pay over the demanded amount, for that which Anthony could not lawfully give, Caius can not lawfully retain.

If it be too difficult for Caius to pay the sum all at once, he is to be allowed to pay the debt in partial payments. We must concede, even, that if Caius or rather his wife, for the time required by law, should have regarded the entire donation bona fide as her property, nothing seems to stand in the way of declaring lawfully that the claim is outlawed and that Caius may retain the one thousand dollars.

Answer.—2. Caius has never heard from a credible source, i. e., from his father-in-law, anything concerning the entire affair. He was not bound to credit the statement of the heirs and could rightly let suit be brought. Caius in conscience is therefore not answerable for the costs of the legal proceedings. Let us, however, suppose that Caius in the course of the suit, before taking oath, had been positively enlightened concerning the point at issue. He could then not have taken the oath, and was bound to pay over the one thousand dollars. If he did not do this, then he would also have to pay the costs for the continuation of the suit.

Franz Hilgers.