CHAPTER IV: ON THE CAUSES EXCUSING FROM RESTITUTION

798. • I. They excuse for a time: 1° physical impotence, namely when the debtor has nothing whence he may restore; 2° moral impotence, or grave difficulty of restoring, whether on account of present necessity or on account of damage that would follow from restitution. And this indeed excuses as often as the one restoring would have to undergo damage much graver than the advantage which the creditor would perceive from restitution; for the order of charity demands that the creditor then consent to a delay of restitution. Therefore this impotence would be present to him who could not restore a) without danger either of his own soul or of his own, for example of prostitution, or of life or reputation, provided the loss of reputation outweighs the damage of the creditor; b) without damage exceeding double the value of the thing to be restored, provided nevertheless that the creditor is not going to undergo equal damage from the delay of restitution (but profit ceasing to the debtor from restitution does not excuse, unless the damage to the creditor from delay would be light); c) without notably falling from his justly acquired state, as if an honorable citizen could not restore unless he had to live in the manner of workers.⁴

Several except if the debtor culpably, for example by games and revels, has thrown himself into such necessity. - Thus Laymann, Lacroix, Busemb. with others. But S. Alph.¹ says: "Notwithstanding this, whenever a debtor would fall from his justly acquired state, to me and to other learned men it seems hard to oblige him to integral restitution. Moreover, S. Anton., Sporer, Elbel rightly note that in such a case the debtor is always bound to diminish expenses, so that he may be able to restore at least what he can."

The debtor can also regularly, even if the state was unjustly acquired, restore gradually when otherwise he would lose a good of a higher order, for example reputation, provided nevertheless that the loss of reputation is not very slight with respect to the damage of the creditor.²

799. • II. They 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 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, either improper or proper or legal. The former is either hidden or manifest (n. 708 sq.). Therefore you are freed from restitution if, for example, you procure for your creditor an equivalent advantage, suppose through gratuitous service furnished by a physician, etc. - Legal compensation is that by which a creditor, in order to recover a debt from someone, retains for himself a thing of the same price owed by himself to the same person; which will be licit if it is a question of a sum of money or a fungible thing (for example wheat) of the same kind, demandable on each side at the same time. Example: on the 1st of the month I owe you 100 for wine sold to me by you, and you on the same day owe me one hundred for buildings leased by me to you. 3° Prescription (n. 668). 4° Destruction of the thing, but only in the cases in which the thing perishes for the owner (n. 722. 734. 955. 3° etc.).³

800. Questions. - Query 1° Is a debtor bound 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 would fall into that necessity, he must restore according to all.

2° If each is already found in grave necessity, it is disputed. More probably he is excused from restitution which is not owed from delict (n. 797. 4°); indeed probably also if from delict, because the debtor then by restoring would subject himself to much graver damage, since from grave necessity he would have to slip into quasi-extreme. Except if the thing itself still exists in species, or if the creditor precisely through that taking away was thrown into grave necessity. - Thus commonly.

3° If each is in extreme necessity, more probably restitution can be omitted; because then all things become common. - Except, as immediately above 2°, if precisely on account of that withdrawal (for example of a plank in shipwreck), the owner (in the case posited, he who first occupied the plank) was thrown into extreme necessity, because to take from someone a thing necessary to himself for life is the same as to kill him.

801. • Query 2° Is he bound to restore who accepted and consumed another's thing in extreme necessity?

Resp. 1° If he has his own things elsewhere, affirmatively; the reason is that even in the time of necessity he is not truly impotent.¹

2° The same must be said if, in act indeed, he has nothing, but he has in probable hope; because one suffering necessity of this kind is sufficiently provided for through borrowed money without interest.²

3° If no hope shines in act, he is not bound; because then he made the thing his own. - Thus the more common theologians. - Except if he did not need absolutely that particular thing, or if only the use of his thing was necessary to him, for example of a horse for fleeing a murderer.

Query 3° Is he excused from restitution of a debt who, unmindful of the debt, gave something gratuitously to his creditor?

Resp. A twofold opinion is given:

The 1st Opinion denies it. The reason is that what is given gratuitously cannot be held as payment of a debt. - Thus Sanchez, Vogler.

The 2nd Opinion affirms, with Lacroix,⁴ Tamb., etc. The reason is that each one is judged to wish first to satisfy the obligation of justice rather than mere liberality. The first opinion is more common and very probable; but the second is not without its probability, says S. Alph.,⁵ and he says it is sufficiently probable whenever, as must be presumed, the debtor, if he had been mindful of the debt, would by no means have given.⁶

Query 4° Can one burdened with debts enter religion, and is he freed from debts if he has entered?

Resp. to the 1st. Negatively, if in a short time, that is, within two years, he can have whence he may pay;¹ otherwise, more probably of itself, if he must wait for a notable time, or even if from a brief stay in the world there threatens a probable danger of falling into sins or of losing vocation. But on account of uncertain debts no one is bound to defer entrance, not even for a short time, since nothing is so pious as to dedicate oneself and all one's things to God.² ... Yet if the debts are of great moment, such an entrance, although valid, is prohibited as illicit by Canon Law. This disposition of Law, however, does not comprehend nuns, who in odious matters do not come under the name of religious, nor those burdened with uncertain debts, nor those who without grave fault have been made impotent for restitution, nor debtors by reason of donation.³ Moreover, Superiors would imprudently receive debtors against whom creditors can have a civil action.

Resp. to the 2nd. 1° Religion is not bound to pay these debts from its own goods, as is clear; nor to give the religious permission to work so that he may satisfy them, except, while nothing stands in the way, from charity.⁴ But the goods which the debtor, having entered Religion, handed over to it are subject to restitution, because Religion succeeded into them with the burden attached to the same. Thus Varceno. 2° The religious is bound to pay them from goods which he had before profession, or which come to him by legacy, if he emitted only simple vows; otherwise, however, if he was solemnly professed. - Thus commonly.

802. • Query 5° Is he freed from restitution who pays the debt to the creditor of his creditor; for example, I owe $100 to you, but you owe 100 to Titius; do I satisfy by paying 100 to Titius?

Resp. Affirmatively, of itself and with attention to commutative justice alone; for I, by paying to your creditor that which you owe to him, acquire the right which he had of demanding his debt from you. Hence the right which I have in you is equivalent to the right which you have in me, and compensation is made. For your creditor can transfer his right to me, or I can buy it, just as anyone else who owes you nothing. - S. Alph.,¹ Billuart,² 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° with attention, etc.; because such payment, if it is made without cause, will be illicit on account of the order of right which it is necessary to observe. But there is a sufficient cause if the creditor can in no other way recover his debt.

803. • Query 6° Is a debtor freed in doubt or probability of payment?

Resp. Negatively, in negative doubt, as is clear. But affirmatively, if payment is either uniquely probable or far more probable. Again negatively, according to S. Alph.,³ in strict positive doubt, since the debt is in possession, which therefore will have to be paid integrally or in part, according to the doubt. But if the creditor himself also doubts, payment must be made according to the proportion of the doubt, because then neither certainly possesses (n. 60. II. under 3°). "Yet Layman adds that he would not dare to condemn the creditor if he exacted the whole."⁴

804. • Query 7° Does reasonably presumed condonation excuse from restitution?

Resp. Affirmatively, at least more probably, because retention of another's thing is not unjust unless it is done while the owner is unwilling. But it is not done while the owner or creditor is unwilling, if it is done from his reasonably presumed will. Thus children are often excused who have stolen from parents a sum not great for the condition of the parents; servants who have consumed common edible things or otherwise taken things of this kind of small price; wives sometimes from furnishing damage inflicted upon common dominion. But abuse in this matter must be guarded against as much as possible, lest thus a door be opened to innumerable injustices, and condonation, as odious, must be interpreted strictly. Hence in doubt it must be presumed that the owner does not consent to be despoiled of his thing.⁵

Here it must be treated concerning restitution on account of damage inflicted upon the neighbor in the goods 1° of the soul, 2° of the body, 3° of fortune in certain cases.