Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ II. On the Order of Restitution as Regards Creditors
- Here one must treat only of the case in which the debtor is unequal to satisfying all his creditors; for otherwise no order is necessarily to be kept in paying debts.
But creditors are: 1. some privileged, who from the privilege of positive law have the right of seeking their debt before others; 2. others hypothecary, who from the title of hypothec or security founded in the goods of debtors have the right of obtaining payment immediately after privileged creditors; 3. others common, who enjoy no benefit of privilege or hypothec.
- Principles. - I. Before all things privileged debts must be paid. Thus from Roman and French Law. But privileged debts are, for example, the expenses which are called of justice, and also funeral expenses, stipends of physicians and servants for the current and preceding year, debts for food from the last six months. - C. C. 2101. 1.
1 The Author mentions these few, as those which are preferred likewise to the other privileged ones. But there are other privileged credits both in the movable and immovable goods of the debtor, concerning which each one ought to consult the codes of his own country, also so that he may know to what point privileges of this kind extend. For what, for example, the Author hints according to the French code concerning the credit of servants for the current and preceding year, or for food from the last six months, is not observed everywhere.
II. In the second place satisfaction must be made to hypothecary creditors, the order of time having been kept, according to Rule of Law 54 in the Sext: He who is prior in time is stronger in right.
III. Finally, in the third place common debts must be paid, since they have no right of preference.
From Roman Law another's thing existing with the debtor, for example, in deposit, lease, etc., must be restored to its owner before all debts, however privileged; for that thing existing in species cries out for the owner. Likewise a thing bought on credit, the price not having been paid, if it still exists in its species 2. - But from French Law a thing sold with the price not paid can be reclaimed only within eight days from delivery, but its price is always privileged. - C. C. 2102. 3.
2 A contract of sale by Roman or common law, although the thing has been handed over while the price has not yet been paid, admits a twofold hypothesis: namely, dominion sometimes transferred to the buyer, sometimes not transferred. But there is no controversy when the dominion of the thing has not been transferred; for certainly the thing must be restored to its owner, namely the seller. But if transfer of dominion has been made, and the laws proper to each place define nothing concerning this case, or the sentence of a judge has decreed nothing, the Confessor can neither forbid the seller to vindicate his own thing to himself, nor in turn command others to cede the thing to the seller. The reason is that probable reasons prevail for each opinion, and it does not belong to the Confessor to compel someone to follow either opinion. See St. Alphonsus, Lib. 5, n. 685.
3 The French Code in this place decrees only concerning movable goods.
- Questions. - Q. 1. Whether debts from delict must be paid before debts from contract?
Resp. More probably negatively, but all must equally be paid pro rata, because it is established by no law that the former must be preferred to the latter. - St. Lig., n. 688.
Q. 2. Whether debts from onerous title must be paid before debts from gratuitous title?
Resp. Affirmatively, because he who promises gratuitously always apposes the tacit condition: if I can conveniently perform it; nor can he expend goods gratis with prejudice to a creditor from delict or from contract. - St. Lig., n. 689. - Lugo. - Lessius. - Billuart.
Q. 3. Whether poor creditors must necessarily be preferred to the rich?
Q. 4. Whether creditors prior in time are to be preferred to later ones?
Resp. More probably negatively, because the law assigns no preference among these credits; but from natural law all creditors are equal, since each has right only in the person of the debtor, which alone is equally obligated to each, but not in his goods. For if the goods of the debtor were obligated, the creditors would already have dominion of them, nor could the debtor sell them, which is false. - Vogler, n. 439. - Lessius. - Carrière, de Contr., n. 391. 4.
4 Carrière said that most theologians today think so. But who these present-day theologians are, in deference to whom we should hold this first opinion as the more probable, we plainly do not know. However that may be, he nevertheless concedes that the second opinion also is probable, just as St. Alphonsus, who judges the second the more probable, concedes that the first is probable. Hence, whether the later creditor has received something pro rata and so has been made equal to the earlier, or the earlier has received his whole debt in such a way that the later cannot be paid pro rata, neither can be compelled by the Confessor to restitution.
Yet several affirm, because, they say, one prior in time ought also to be stronger in right. - Thus Lugo, Salmant.; and St. Lig., n. 690, says this is more probable, although he holds the prior sentence as probable.
- Q. 5. Whether certain creditors are to be placed before uncertain or unknown creditors by the debtor?
Resp. More probably affirmatively, if the uncertain creditor cannot be found. The reason is that that uncertain creditor is not judged reasonably unwilling, since he cannot recover his debt. On the other hand, it would be hard to deny the debtor the faculty of freeing himself from a creditor by whom he would often be pursued, so that he restore to the poor he meets, representing the unknown creditor. At least certain creditors can licitly be placed before uncertain ones. - Thus commonly. - Lugo, D. 20, n. 2. - Antoine. - Vogler, against Billuart.
Q. 6. Whether it is licit to pay first the one asking first, even if he is later in time?
Resp. 1. Affirmatively, if he asks juridically, because the legitimate sentence of a judge confers the force of privilege upon the creditor. - Thus all. - St. Lig., n. 692. - Vogler, n. 444.
Resp. 2. More probably affirmatively even if he asks outside court, because he has a personal action against the debtor, and by asking for the whole debt he pursues his right. - St. Lig., n. 692, as more probable. - Billuart. - Lessius. - Salmant., etc., against Lugo. - Carrière.
Q. 7. Whether a debtor, knowing his state to be unstable, can satisfy integrally even one not asking?
Resp. Negatively, because since all creditors are equal in right, and no one among them pursues his right, and therefore by diligence no one becomes stronger in asking, natural equity demands that integral restitution not be made to someone with prejudice to the others. - St. Lig., n. 692. - Lessius, and others commonly.
Q. 8. Whether a creditor who in this case accepted payment is held to restitution toward the other creditors?
Resp. It is controverted. The first sentence affirms, because he has no right that he be paid integrally with the detriment of others. - St. Lig., ibid. - Salmant., etc.
The second sentence denies, because from what has been said probably a creditor having a personal right does injury to no one by urging payment of the debt even outside court; therefore neither by accepting it, since he has the right of exacting it 5. - Lessius and others apud Lacroix. Nevertheless except the cases in which such payment is declared invalid by law.
5 The civil laws support this sentence, because what has been paid is not revoked. See St. Alph., Lib. 3, n. 693, and Lugo, De Iust., Disp. 20, n. 179.