Chapter — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Chapter IV. On the Causes Excusing from Restitution
- I. The following excuse for a time: 1. physical impotence, or every kind of impossibility, which is had in extreme necessity; indeed also in very grave necessity either of the debtor himself or of his own, that is, of his wife and nearest blood-relatives; 2. moral impotence, or grave difficulty of restoring, namely when restitution cannot be made without grave inconvenience of the debtor, for example, if by restoring he would have to fall notably from his state justly acquired, or fall into grave necessity, etc. The reason is that then there is true impossibility of restoring; for in morals that is called impossible which is very difficult, and which cannot be done decently and honorably. - Hence if a nobleman cannot restore unless he deprives himself of servants, horses, arms; or a leading citizen, unless he undertakes a mechanical art unaccustomed to him; or a craftsman, unless he sells the instruments of his art, or undergoes great damage, he can defer restitution, and pay his debts gradually. - St. Lig., Hom. apost., n. 117.
Several except the case in which the debtor has culpably cast himself into such necessity, for example, by games, banquets, and debauches. - Thus Laymann, Lacroix, Busemb., with others. But St. Lig., Hom. apost., n. 118, says: This notwithstanding, if the debtor would fall from his state justly acquired, to me and to other learned men it seems hard to oblige him to integral restitution. Moreover St. Anton., Sporer, Elbel rightly advert that in such a case the debtor is always held to diminish expenses, so that he may restore at least what he can.
- II. The following excuse in perpetuity: 1. remission, or condonation of the debt on the part of the creditor; but it is required that the creditor be able to condone, and that he have dominion and administration of the thing owed to him; likewise that the remission not be made by force or fraud, but altogether freely and spontaneously; 2. compensation, that is, when the creditor by his own authority vindicates an equivalent for himself, or retains the same debt for himself; 3. prescription clothed with the due conditions. But prescription for debts is not regularly completed except through thirty years; nor commonly can it have place as regards the debtor himself who contracted the debt, because good faith cannot be found in him. - St. Lig., n. 700, etc. Recall what was said concerning prescription, n. 580 and following.
- Questions. - Q. 1. Whether a debtor is held to restore if he is situated in the same necessity, whether grave or extreme, with the creditor?
Resp. 1. If the creditor is already found in grave necessity, and the debtor by restoring falls into it, he must restore according to all.
- If each is already found in grave necessity, and the debtor by restoring would fall into extreme necessity, it is disputed. More probably he is excused from restitution which is not owed from delict. Indeed probably even if it is owed from delict; because the debtor then by restoring would subject himself to damage indeed graver. Except if the thing itself still exists in species. - Thus commonly.
- If each is in extreme necessity, more probably restitution can be omitted; because then all things become common. - Bonac. - St. Lig., n. 701, Hom. apost., n. 119. Lugo, however, with others, holds the opposite no less probably.
- Q. 2. Whether he who accepted and consumed another's thing in extreme necessity is held to restore?
Resp. 1. If he has his own things elsewhere, affirmatively; the reason is that even at the time of necessity he is not truly unable. - St. Lig., n. 520, and others commonly.
- The same must be said if indeed he actually has nothing, but has it in probable hope; because provision is sufficiently made for one suffering necessity of this kind through borrowed money without interest. - St. Lig., n. 520.
- If no hope actually shines forth, he is not held; because then he made the thing his own. - Thus the theologians more commonly. - St. Lig., ibid.
Q. 3. Whether he who, forgetful of a debt, gratuitously gave something to his creditor, is excused from restitution?
Resp. A twofold sentence is given:
First Sentence denies. The reason is that what is gratuitously given cannot be held as payment of a debt. - Thus Sanchez. - Vogler.
Second Sentence affirms, with Lacroix, n. 452, Tamb., etc. The reason is that each person is judged to wish to satisfy first the obligation of justice rather than mere liberality. The first sentence is more common and very probable; but the second does not lack its own probability, says St. Lig., n. 700; and he calls it sufficiently probable, Hom. apost., n. 120.
Q. 4. Whether one burdened with debts can enter Religion, and whether he is freed from debts if he has entered?
Resp. to the first. Negatively, if within a short time he can have the means from which he may pay; otherwise more probably of itself, if he must wait for a notable time. - St. Lig., n. 71, de Statibus; Vogler, etc. Nevertheless, if the debts are of great moment, such an entrance, although valid, is prohibited by Canon Law as illicit.
Resp. to the second. 1. Religion is not held to pay these debts from its own goods, as is plain; 2. The Religious is held to pay from the goods which he had before profession, or which come to him by legacy, if he has emitted only simple vows; but otherwise, if he has solemnly professed. - Thus commonly.
- Q. 5. Whether cession of goods, whether judicial or voluntary, excuses from restitution in perpetuity?
Resp. 1. Altogether negatively as regards judicial cession, because that cession is a mere benefit which the law grants to a debtor of good faith and unfortunate, so that, ceding his goods, he may preserve liberty and become immune from compulsion in the external forum. This is clear from the express terms of both Roman and French Law.
Resp. 2. Indeed negatively also as regards voluntary cession, apart from an agreement either express or at least implicit. The reason is that, although the creditors then compound with the debtor concerning only a certain part to be paid, nevertheless they act thus because they cannot have more, and therefore they do not renounce the right which they have to integral payment, if the debtor should at some time be able to pay. - St. Lig., n. 669. - Billuart, diss. 8, art. 20.
I said, apart from an agreement; because if the creditors expressly liberate, or clearly seem to liberate, the debtor totally, he is held to nothing further.
- Q. 6. Whether he is freed from restitution who pays the debt to the creditor of his creditor; for example, I owe you 100 francs, but you owe 100 to Titius: do I satisfy by paying 100 to Titius?
Resp. Affirmatively, of itself, according to the apex 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; whence the right which I have in you is equivalent to the right which you have in me, and compensation occurs. For your creditor can transfer his right to me, or I can buy it, just as any other person who owes you nothing can. - St. Lig., n. 700. - Billuart, diss. 8, art. 14, § 1. - Vogler, n. 541, and others commonly.
I said 1. of itself, because I am not freed if perhaps you are still compelled to pay, or if you have privileged or hypothecary creditors.
I said 2. according to the apex of law, because such a payment, if made without cause, will be illicit on account of the various inconveniences to which it is liable. But there is a sufficient reason if your creditor cannot recover his debt. - Billuart, ibid.
- Q. 7. Whether a debtor is freed in doubt, or in probability, of payment?
Resp. 1. Negatively in mere doubt, as is plain. For an obligation once contracted must be fulfilled, unless a solid reason persuades that payment has been made. - The same must be held where presumption is adverse to the debtor; which is often accustomed to happen, especially when the doubt is to be attributed to his negligence.
Resp. 2. In true probability, it is controverted.
First Sentence, the more common, denies. The reason is: 1. because satisfaction is not made for a certain obligation through doubtful fulfillment; 2. because the burden lies upon the debtor of attending and watching that he certainly restore; whence the doubt that has arisen must be imputed to his negligence, from which the creditor ought not to suffer damage. - St. Lig., n. 700, and l. 1, n. 27 and following. - Lugo, D. 18, n. 12. - Lacroix, n. 571, although he holds the opposite, as Lugo himself also does, where another obligation than that of justice is being treated, and many others. Second Sentence says that restitution must be made pro rata of the doubt, at least if each doubts; because since the creditor does not have a right except probable, it is not equitable that as much be paid to him as would be paid if he had a certain right. - Tambur., Laymann. - Diana. Reuter says this is probable, n. 449, although he holds the opposite as more probable.
Third Sentence frees the debtor from every obligation, because an obligation is not to be imposed unless it is certain concerning it. Thus Bossius. - Tannerus. - Viva, etc., apud Lacroix and Reuter. Although this third sentence can speculatively enjoy its own probability, nevertheless in practice generally it does not seem to be followed, because the debtor commonly ought to impute the doubt to his own negligence.
Nevertheless, if the greater probability favors the debtor, and he is upright and diligent in paying debts, he should not be disturbed; for then the greater presumption would be had in favor of payment having been made. A fortiori you will not urge restitution if the debtor says that he certainly has satisfied, although the creditor still complains.
- Q. 8. Whether condonation reasonably presumed excuses from restitution?
Resp. Affirmatively, at least more probably, because retention of another's thing, or omission of restitution, is not unjust unless it is done against the owner's will. But it is not done against the owner or creditor if it is done from his reasonably presumed will. Therefore, etc. Thus sons of families can more easily be excused, if they have stolen a sufficiently small sum of money from their parents. Likewise servants who consumed common foods. But abuse in this matter must be avoided as much as possible, lest thus a door be opened to innumerable injustices. - Lacroix, n. 462. - Lugo, D. 21, n. 54. - St. Lig., n. 700. - Vogler, etc. - See Casus, n. 714 and following.