Article — Koch–Preuss
Article 4: Causes Which Excuse From Restitution
The obligation of making restitution ceases absolutely and for ever the moment it has been certainly and completely fulfilled. When it is doubtful whether or not restitution has actually been made, it may be presumed in cases where the debtor is in the habit of meeting his obligations promptly and can adduce in his favor reasons which render it very probable that he has made the required compensation.
Though the duty of making restitution for goods unjustly acquired, or damage unjustly inflicted, is a most important one, yet there may be reasons (causae) which excuse one from complying with it, for, as the theologians say, “Restitution is not necessary as a means of salvation.”1 These causes either excuse the debtor from making restitution for ever (omnino sive in perpetuum), in which case there is an excusatio plena, which completely extinguishes the obligation; or they excuse him only for a time (ad tempus), in which case the obligation is merely suspended. Causes of the latter kind are known as suspendentes.2
1 “Restitutio non est necessaria ad salutem necessitate medii.”
2 Cfr. Elbel-Bierbaum, Theol. Mor., Vol. II, 3rd ed., p. 6, n. 324, where ten such causes are given.—Lehmkuhl (Theol. Mor., Vol. I, pp. 705 sqq.), following Reuter (Theol. Mor., P. III, n. 351 sqq.), enumerates fourteen (cfr. Reuter-Lehmkuhl, Neo-Confessarius, n. 233).
- The chief causes which excuse from restitution for ever are: (a) Remission or condonation on the part of the rightful owner of the property involved; (b) legal prescription; (c) compensation; (d) entry of the debtor into an approved religious institute, and (e) a papal dispensation.
a) Remission or condonation (remissio sive condonatio) supposes that the rightful owner is able and willing to give up his claim to restitution, i. e., that he has power and dominion over the property involved and has not been forced to relinquish his claim by fear or violence. Children, wards, administrators, and religious, cannot validly remit or condone a claim to restitution without the consent of their parents, guardians, or superiors, respectively.
Equivalent to free remission or condonation, according to the common teaching of theologians, is the certain presumption that the owner does not insist on restitution nor expects it to be made (certo praesumpta voluntas domini), even though he has not expressly said so.3 This presumption (which must be based on solid grounds) may be reasonably invoked in favor of minors, husbands and wives, brothers and sisters, and other relations, and also in favor of servants, when the amount involved is small; for in all these cases it is reasonable to assume that the owner, if requested, would readily grant the desired condonation.4
3 Scavini-Del Vecchio, Theologia Mor. Univ., Vol. II, 5th ed., n. 298 (p. 211): “Tacit remission also has force, for according to the rule of law, ‘tacit and express consent have nearly the same force and condition.’ Indeed, even a certainly presumed remission has force, as theologians quite commonly teach with the Angelic Doctor: For what fraud does he commit who thinks that the owner would have consented? Hence an owner dismissing a servant for petty thefts is deemed to remit to him the whole obligation, because he asks nothing.”—Cfr. St. Alphonsus, Theol. Mor., l. III, n. 700 (ed. Gaudé, II, 164).
4 Noldin, Summa Theol. Mor., Vol. II, pp. 534 sq.
b) Legal prescription (praescriptio) or usucapio, that is, continued exercise of the right of ownership for a certain definite time, also excuses from restitution, under the usual conditions, but may be claimed only by those who are in good faith, not by those who possess property in bad faith or doubtfully.5
5 “Possessor malae fidei ullo tempore non praescribit.”—(Reg. Iur. in VI° Decr. Bonif. VIII, n. 2).
c) Occult compensation (compensatio occulta) consists in covertly taking one’s own from another, who unjustly holds it, or in inflicting upon that other an injury equal to the value of the object claimed.6 Occult compensation is allowable in conscience on four conditions:
6 V. supra, pp. 366 sq.
α) The debt must be morally certain. If I have only a probable right, I may have recourse to the law to have the question decided, but with nothing more than probability on my side, I must not deprive another of what he possesses with a probable right on his side. In such a case, “melior est conditio possidentis.”
β) There must be a difficulty in vindicating my right by the ordinary legal process. Public order and peace require that I should not take the law into my own hands. Even though there be no fear of a breach of peace from occult compensation, yet no man is a safe judge in his own case.
γ) I must not secretly take what belongs to me when there is likelihood that I may be paid in the long run; for by so doing I should wrong my debtor.
Of these conditions the first is the most important; but all should be loyally and conscientiously observed in those special cases where recourse is had to occult compensation.
The fact of occult compensation being established, no further restitution need be made.
d) Profession in an approved order or congregation (professio religiosa), which implies a renunciation of all property rights, excuses from restitution only if the creditors are not injured, or the debtor is absolutely insolvent, so that his creditors expect nothing from him. If he can make restitution by postponing his entrance into religion, the more reasonable and safe course will be to satisfy his creditors before he bids adieu to the world. The Code of Canon Law prescribes that those who “are burdened with debts which they are unable to discharge” may not licitly be admitted as novices in any religious order or congregation.8 This holds even though the order or congregation is willing to pay his debts. For, as Fr. Augustine observes, “such an offer would imply alienation of the goods of the order, which is not permitted.”9
8 C. I. C., can. 542, 2°.
9 Charles Augustine, O. S. B., A Commentary on the New Code of Canon Law, Vol. III, p. 213. Cfr. Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 190 sqq.; Elbel-Bierbaum, Theol. Mor., Vol. II, 3rd ed., p. 6, n. 335, 342 sqq.; Lehmkuhl, Theol. Mor., Vol. I, p. 705.
e) A papal dispensation (compositio pontificia) can be applied only to cases where restitution may be made ad pias causas, hence only to uncertain obligations when the owner cannot be ascertained, and to restitution which has to be made to the Church in obedience to ecclesiastical laws; also to ecclesiastical goods and revenues, for instance, where a cleric has to make compensation for having unjustly held a benefice or having neglected to say his Breviary. In all these cases it must be shown (a) that the injustice was not committed in view of the dispensation to be obtained, and (b) that full restitution is impossible. Whenever the rightful owner is known, the Pope cannot remit the duty of making restitution to him because he has no direct dominion over the property of others.10
10 J. E. Pruner, Lehre vom Recht, Vol. II, p. 79; Idem, Kath. Moraltheologie, Vol. II, 3rd ed., p. 221; cfr. Lehmkuhl, Casus Consc., Vol. I, 3rd ed., 783 sqq.; Göpfert, Moraltheol., Vol. I, 6th ed., pp. 296 sqq.
- A temporary postponement is justified by physical and moral inability to make restitution and by bankruptcy.
a) Physical (impotentia physica vel absoluta)11 as well as moral inability to make restitution constitute a valid excuse as long as they last, for no one can be held to do what is beyond his power.12 Moral incapacity (impotentia moralis) exists when a man cannot make restitution without impairing goods of a higher order, such as life, health, honor or good name, or without exposing himself and those dependent upon him to severe want or to destroy his entire honestly acquired fortune.13 It is assumed, of course, that the rightful owner is not exposed to the same danger if restitution is not made, for “melior est conditio innocentis quam nocentis.” When there is real incapacity to make restitution, a third person (for instance, the confessor) may intercede with the creditor to obtain a remission or postponement. Whoever is incapable of making restitution must be willing to do so in case he becomes able, make every reasonable effort and actually do his duty as soon as he can.
11 Cfr. Gury, Comp. Theol. Mor., Vol. I, n. 687: “Physical impotence, or impossibility of every kind, which is present in extreme necessity, and indeed even in very grave necessity, whether of the debtor himself or of his own, that is, of his wife and nearest blood relatives.”—Cfr. Noldin, II, pp. 535 sq.
12 Reg. Iur. in VI° Decr. Bonifat. VIII, n. 6: “No one can be obliged to the impossible.”—C. 5, X de usuris, V, 19: “Those who do not have the means from which they could restore usury must not be punished by any penalty, since the mark of poverty excuses them.”—Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 8, ad 2: “When some one cannot restore at once, the impotence itself absolves him from making restitution immediately, just as he is also absolved entirely from restitution if he is wholly impotent; nevertheless he ought to seek remission or delay from him to whom he owes, either by himself or through another.”
13 Gury, Comp. Theol. Mor., Vol. I, n. 687: “Moral impotence, or a grave difficulty of restoring, that is, if restitution cannot be made without grave inconvenience to the debtor, e. g., if by restoring he would have to fall notably from his justly acquired station or fall into grave necessity, etc. The reason is that then there is a true impossibility of restoring; for in morals that is called impossible which is very difficult and which cannot be done fittingly and honorably.”—Cfr. Elbel-Bierbaum, Theol. Mor., Vol. II, 3rd ed., P. VI, n. 197 sq., 336 sqq.; Lehmkuhl, Casus Consc., Vol. I, 3rd ed., n. 769 sq.
b) Bankruptcy (concursus creditorum) is a judicial proceeding by which a person, who has been legally ascertained to be insolvent, is adjudged to be discharged from his indebtedness upon surrender of his property (cessio bonorum) for pro rata distribution among his creditors.
Bankruptcy may be voluntary or forced. It is voluntary (cessio bonorum voluntaria) if freely accepted by the creditors of the bankrupt man or firm; it is forced if they are compelled to accept it by a decree of court. Voluntary bankruptcy14 is really nothing more than a sort of mutual agreement between debtor and creditors.
14 In the U. S. a corporation, a minor, or an insane person cannot become a voluntary bankrupt under the Federal Bankruptcy Act of 1898, which superseded the various State insolvency laws till then in force.
If the debtor is incapable of meeting the demands of his creditors, he may either cede to them his property voluntarily for the satisfaction of their claims, or wait till he is compelled to do so by the courts, but in either case he remains bound in conscience to make good the deficiency as soon as his financial condition permits, unless the creditors release him from this obligation.
He who gives up his property to satisfy his creditors, may retain as much of it as he needs to support himself and his family in accordance with their station in life. The fraudulent concealment or removal of valuable objects, or any notable preference shown to particular creditors is punishable under the civil law and a mortal sin.
If a bankruptcy is fraudulent, it entails the duty of complete restitution. If it is the result of culpable carelessness, the debtor is bound to make restitution to his creditors to the best of his ability. If there is no guilt involved, this obligation does not bind unless and until the debtor again becomes prosperous and has an income exceeding the requirements of his station in life.
When one is in doubt whether or not he has paid his debts, he is obliged to pay. For a certain demand of justice cannot be satisfied by an uncertain payment, because commutative justice demands equality (aequalitas rei ad rem). Most authors declare the debtor to be free from all obligation, provided the uncertainty is not the result of his own negligence. The assertion that the aequalitas rei ad rem demands that to a certain debt there must correspond a certain payment, proves nothing because the equality would again be destroyed by the fact that the debtor might run the risk of paying the debt twice. It is equally false to argue that under such conditions a man is bound to pay the debt twice, because the doubt in his mind is the result of his own carelessness.15
15 Lehmkuhl, Casus Consc., Vol. I, 3rd ed., n. 754–759, 775–778.—Göpfert, Moraltheologie, Vol. II, 7th ed., p. 300.—The American bankruptcy legislation and practice are well summarized by Dr. Albert Sidney Bolles in Putnam’s Handy Law Book for the Layman, New York, 1921, pp. 31–38, to which we refer the student. A general assignment for the benefit of creditors is an act of bankruptcy. A petition for the appointment of a receiver is not. The U. S. district courts in the several States are courts of bankruptcy and have power to adjudge bankrupt those who have their principal place of business, residence, and domicile within their respective districts, and they have power also over those who have property within their jurisdiction.
Is a bankrupt who has obtained his discharge after paying his debts in part only, bound to pay in full if he subsequently becomes able to do so? If the creditors have expressly released him from all further obligations, it is evident that he need not pay the balance of his indebtedness. But if they have not so released him, the question is plainly reduced to one of fact, namely, what is the civil law on the point, and what is its effect? In this country several theologians have held that a discharge in bankruptcy does not in conscience free the debtor from liability to pay his debtors in full, if he subsequently becomes able to do so, whereas others (Marc, Kenrick) regard the contrary as a probable opinion. Fr. Slater thinks that “in the United States one who cannot pay his creditors in full must make up the deficiency afterwards if he can, whether he makes a composition with his creditors or goes into the bankruptcy court.”16 Sabetti-Barrett say that, in view of the clause in the Federal Bankruptcy Act of 1898, that “a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as are due to a tax levied by the United States,” and since there is nothing in the wording of the act itself to prove that the discharge should be limited to a mere denial of legal action for the balance of the debt, it is safe to hold, with Father Martin, S.J.,17 that there is no obligation to pay the residue of the debt, and even if the confessor should hold the opposite opinion as probable, he has no right to impose it upon his bankrupt penitent, but is rather bound to allow him the benefit of the probability.18 All of which, of course, supposes that the bankruptcy was not fraudulent.
16 T. Slater, S. J., Questions of Moral Theology, p. 190.
17 In his American notes to Slater’s Manual of Moral Theol., Vol. I, pp. 438–451.
18 Sabetti-Barrett, Comp. Theol. Mor., 27th ed., p. 408.—Cfr. J. O’Mahony, “The Bankruptcy Laws and Conscience,” Irish Theol. Quarterly, Vol. II (1907), No. 7.
Readings.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 177 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 696–706 (ed. Gaudé, II, 161 sqq.).—A. Lehmkuhl, S. J., Theol. Mor., Vol. I, pp. 705–712.—H. Noldin, Summa Theol. Mor., Vol. II, pp. 533–541; 452–455.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 253–258.—J. B. Ferreres, Comp. Theol. Mor., Vol. I, pp. 560–564.—T. Slater, A Manual of Moral Theol., Vol. I, pp. 437–452.