Chapter III — On those to whom restitution ought to be made; and on the order to be observed in restitution

I. QUESTION I. To whom ought a thing received from a possessor of good faith to be restored? ANSWER. The thing is to be restored to the lord, because it always cries out to its own lord. And if he to whom restitution is to be made be dead, the goods ought to be restored to the heirs, either by testament or ab intestato. If you have received goods from religious, they are to be restored to the monastery; if from a son of a family, to the parents; if from a wife, to the husband — unless it be established that alienations of this kind were made with the consent of the lords.

II. If the thing to be restored be pernicious to the lord, you ought not to restore it to him at the time at which it is harmful to him. Wherefore arms deposited with you you ought not to render to a madman, or to another who will make ill use of them. Similarly out of charity you ought not to restore money which you foresee will be squandered by the lord upon harlots or other crimes.

III. QUESTION II. To whom is restitution to be made when the lord is unknown? ANSWER. Of the restitution of things found it has been spoken above. Now the discourse is of things taken away by theft, or by another title, which are found with a possessor. First, all diligence is to be used that the lord be found. If it be doubted whether the thing is to be restored to Peter or to John, the restitution is to be divided in proportion to the doubt. If finally the lord can in no way be found, the goods are to be distributed among the poor. Similarly, that goods acquired by simony are to be laid out upon pious works, the more probable opinion teaches. Goods gathered by usury, if those from whom the usuries were extorted are known, ought to be restored to them; if they are unknown, they ought to be conferred upon the poor. When the buyers of some community have been injured by unjust sales, then the buyers of the same place ought to be compensated by sales at a cheaper price, when the injured buyers are unknown. In these cases the parish priest or the bishop is to be consulted.

IV. Authors dispute whether a payment made not to your creditor, but to another to whom your creditor owes just as much, is valid. Loyseau, Castropalao, Layman, and Bonacina affirm it, who cite Molina, Valentia, and others. This opinion is to me false. Since Peter your creditor has a right to exact from you your debt. But Paul, Peter's creditor, possesses no right of demanding anything from you. By what reason therefore can you pervert these rights? Who constituted you Peter's curator, that you should pay his debts? Can you filch goods from Peter, that you may pay his debts? Why therefore will you be able to pay the hundred which you owe him, and which are his, to his creditor?

V. QUESTION III. What order is to be observed in restitution? ANSWER. When a debtor is not solvent for all his creditors, the laws determine that some of these are to be preferred to others. For some are creditors who by natural law ought to be preferred to the rest. Others the positive laws decree to be preferred. These laws oblige in conscience, whatever Diana, Machado, Serra, and others say to the contrary; whose opinion the Salmanticenses undeservedly repute probable, or at least not improbable.

VI. Creditors whose goods subsist in kind with the debtors, and whose dominion has not been transferred — as are pledges, things lent for use, deposits — ought by natural law to be preferred to all creditors, as all confess. That certain debts, when they subsist in their proper kind, are to be preferred to uncertain debts, the more common opinion holds. What is safer I scarcely perceive. Wherefore the circumstances are to be regarded, and the case, which rarely occurs in practice, is to be resolved by the judgment of prudent men.

VII. QUESTION IV. Whether a seller ought to be preferred to privileged creditors, while the thing subsists in kind with the buyer? ANSWER. There are commonly excepted the goods of the Church, of minors, and of the treasury, whose dominion is not transferred to the buyer until the price be paid. It is disputed only concerning creditors who sell wares on credit to other buyers, namely whether these, when their wares subsist in kind with the buyers, the price not having been paid, ought to be preferred to other creditors. The more common opinion affirms it, which seems also more conformable to the usage of the external forum; and this seems more consonant with natural equity, that when the seller's thing subsists in its own kind, it be not applied to strangers, the lord or seller being unwilling.

VIII. QUESTION V. What order is to be observed among debts either from an onerous or from a gratuitous contract, or from a delict? ANSWER. Debts from an onerous contract — namely from sale, exchange, letting, and the like — ought altogether to be preferred to debts from a liberal promise even accepted, from a legacy, a testament, and so forth. And this holds true even if the debt were contracted on account of a promise of paying a daughter's dowry, or of giving a legacy to a church, to the poor, and the like. Since God does not accept sacrifices made from robberies.

IX. There is disagreement whether debts from a delict ought to be preferred to debts from an onerous contract. The first opinion defends that debts from a delict are to be preferred, when the other debts are not confirmed by hypothec, or when the thing does not subsist in kind. The second opinion defends the opposite, namely that debts from an onerous contract are to be paid first. The third opinion contends that no order at all is to be observed, but that payment is to be made to all in proportion. The Salmanticenses say that all those three opinions are probable. And yet one alone is true. What in a matter obscure and involved enough seems to me the more probable is that debts contracted earlier ought to be paid earlier, whether they be from a delict or from a contract. The reason is that, while the debtor contracted the earlier debts, he was, as is supposed, solvent, and the creditor acquired a certain right. Further, this lawful and certain right cannot be injured by later debts: because while the debtor contracts these later debts, he has not wherewith to pay, since his goods are already obligated to the earlier creditor.

X. QUESTION VI. How are hypothecary creditors to be preferred to others? ANSWER. A hypothec affords a right in the goods which are subjected to it. Wherefore creditors to whom the debtor's goods have been designated under hypothec, whether express and special or tacit and general, ought to be preferred to all other personal creditors, even privileged ones, as all teach: because these have a right not only against the person, but also in the goods hypothecated. But among hypothecary creditors, he who is prior in time is stronger in right.

XI. Those who confer moneys to be laid out upon the building of a house, upon the tilling of a field, upon the redeeming or buying of a fixed property, which goods are burdened with a hypothec for the security of the creditors, who expressly demand that these goods be obligated to them, are to be preferred to earlier creditors having only a general hypothec. But as regards this the customs of tribunals are various, according to which the debts are to be paid.

XII. Among simple or personal creditors, who have an action only against the person, those are preferred who give moneys for the cause of funerals. Under the name of funerals come also expenses in the curing of an illness. A betrothed woman handing over a dowry before marriage, the marriage not following, contracts a privileged credit to be preferred to other personal creditors who have neither an express nor a tacit hypothec. He who deposits moneys with a public depositary or banker, no usury being perceived, is preferred to all personal creditors of the same public depositary; but otherwise if he should perceive usury, because then he is not a depositor but a lender.

XIII. QUESTION VII. What order is to be observed among simple, non-privileged creditors? ANSWER. Preference among these is to be referred to the rules of natural law, since the laws determine nothing concerning them. One opinion defends that no preference is to be admitted among debtors of this kind, but that the goods are to be divided and distributed in proportion. The other opinion contends that those creditors are to be preferred who are prior in time. And the reason assigned above seems pressing enough: therefore this opinion is the more probable, whether the creditors be poor or rich. There are many laws which favour the first petitioners. Wherefore each ought to regard the laws of his own country.

XIV. QUESTION VIII. Can a debtor secretly admonish a friendly creditor to sue first, and pay him the whole debt to the detriment of the other creditors? ANSWER. There are not wanting those who affirm it, especially Fr. La Croix, who in Book III, part 2, no. 405, writes these things: According to the probable opinion that the first suitor is to be preferred, a debtor will be able to admonish a creditor friendly to him that he intends to pay him who sues first; and thus without doubt the other will be moved to sue. This opinion prepares the way for frauds and guiles, and betrays its own falsity. How far this and other like paradoxes are abhorrent from Christian equity and simplicity, everyone sees.