ARTICLE I: On Causes Which Suspend the Obligation of Restoring

Besides invincible ignorance, which as long as it perseveres excuses from restitution, three other causes are numbered, namely: 1. the inability of the debtor; - 2. damage of the creditor or of a third party; - 3. cession of goods.

Whether doubtful payment of a debt excuses, see the things said in n. 947.

There can be a twofold inability of restoring: a) physical or absolute, when the debtor does not have whence he may restore; b) moral, when indeed he absolutely has whence he may restore, but he cannot restore without great difficulty, whether because of present necessity of himself or of his own, that is, of children, father, mother, spouse, or because of damage going to follow from restitution.

1017. PRINCIPLES. I. Physical inability suspends the obligation of restoring. The reason is clear; for no one is held to the impossible (see nevertheless the things said in n. 926).

Physical inability, if it is perpetual, extinguishes the obligation of restoring. Extend this to a religious with perpetual vows, guilty of injustice; who nevertheless, according to some authors, must seek condonation from the Superior; otherwise such a religious would be of better condition than laymen obligated to restitution (Ami du Cl., 1913, p. 1032; 1914, p. 366).

II. Moral inability likewise suspends the same obligation: that is, no one is held to restore immediately if from restitution a notably greater detriment would come upon him than would be the advantage of the creditor. The reason is that, in such a case, the creditor prudently and reasonably ought to permit the suspension of his right, so that the order of charity may be preserved (III, 598). Cf. Ami du Cl., 1912, p. 634.

1018. Therefore the debtor, even from delict, is excused:

1. If he cannot restore without danger to the salvation of his own soul or of his own; for example, if there is danger lest the wife or daughters prostitute themselves, lest the sons give themselves to robberies.

2. If he cannot restore without danger of life or reputation, provided the loss of reputation is not least or lowest with respect to the great and notable damage which the creditor would undergo in goods (III, 698).

Thus, for example, a notary is not held to reveal a false instrument composed by himself, in order that with gravest detriment to his reputation and danger of prison he repair damage inflicted on others in goods of fortune. Yet he is held with even graver damage of fortune (cf. above n. 915).

3. If he cannot restore without damage of his own so great that by it twice the value of the thing is exceeded. Likewise more probably, if he cannot restore immediately without grave damage, provided the creditor does not undergo equal damage from the delay of restitution. - Nor indeed can the debtor defer payment because of mere loss of profit, except when from the delay no damage would come upon the creditor (III, 697; H. Ap., X, 117).

4. If by restoring he could not live according to the decency of his justly acquired state. Hence if a nobleman, for example, cannot pay immediately unless he deprive himself of servants, horses, arms, etc.; or a chief citizen, unless he takes up a mechanical art unaccustomed to himself; or a farmer, unless he sells the grain necessary for cultivating the fields; or a merchant, unless with great detriment he sells obligations of credit; or a mechanic, unless he sells his instruments by which he lives: he can defer and restore gradually without loss of his state (III, 698).

We said justly acquired; for if he had acquired his state unjustly, for example by thefts or frauds, he could not preserve it with damage to the creditor, as is commonly taught. And Doctors think the same must be said if the debtor culpably, for example by games, gluttony, has cast himself into the aforesaid necessity. "But, notwithstanding this," says St. Alphonsus (III, 702; ed. G., II, p. 170), "whenever a debtor, because he has played, etc., would fall from his justly acquired state, it seems hard to me and to other learned men to obligate him to full restitution. St. Antoninus and others rightly advert that, in such a case, the debtor is always held to lessen expenses so that he may restore at least what he can."

1019. Note. a) If the debtor, because of restitution, either alone or with his own, would be cast into extreme necessity, he is not held to restore, although the thing exists in species, and the owner is in the same necessity. The reason is that, in such a case, all things are common, according to the things said in n. 914. But otherwise, if the creditor himself also had been cast into extreme necessity precisely from that particular theft; because to take away from someone a thing necessary to him for life is the same as to kill him; hence, in that case, the condition of the owner possessing first ought to be better.

b) If it is a question only of grave necessity, one must distinguish: either the debtor alone, or the creditor alone, or both are in that necessity. If the first, restitution can be deferred, as is clear from the things said. If the second, the debtor must restore, although he be cast into equal necessity, because in equal necessity the condition of the creditor is better, as one having a right to a thing. If the third, it is probable that restitution can be deferred; because the debtor through restitution would expose himself to much greater damage, since from grave necessity he would be cast into quasi-extreme necessity. Except: if the thing exists in species; or if the creditor is found in equal necessity precisely because of the theft of that thing (cf. n. 1018, 3). See St. Alph., III, 701-703).

1020. PRINCIPLES. I. If the owner of the thing to be restored would abuse it for sinning, the debtor is not held to restoring. The reason is given by St. Thomas (2. 2, q. 62, a. 5 ad 1): "When the thing to be restored appears to be gravely harmful to him to whom restitution must be made, or to another, it ought not then to be restored to him, because restitution is ordered to the utility of him to whom it is restored. For all things which are possessed fall under the aspect of the useful. Yet he who thus detains another's thing ought not to appropriate it to himself, but either to reserve it so that he may restore it at a fitting time, or even to hand it over to another to be preserved more safely" (III, 697).

Hence, unless grave damage or inconvenience threatens you, you cannot restore: 1. money given to you as a loan to him who wishes to use it for sinning; 2. an altogether depraved book which can be of no utility; because, since you easily can impede the sin of another, by not impeding it you sin against charity (cf. n. 493).

II. If the owner of the thing is foreseen to be about to abuse it to the damage of a third party, the debtor is held to deny it when he can without his own graver or at least equal damage. The reason is clear from the cited words of the Angelic Doctor. - Indeed, in such a case, he would sin not only against charity, but also against justice, as Lugo and others commonly teach; because one's neighbor has a right that you not cooperate in his damage by handing something to another for his ruin (III, 697 and 753; H. Ap., X, 116). Recall the things said in n. 520, 3.

Hence, a debtor, even from delict, who defers restitution because of the true utility of the owner, is not held concerning the lesser damages consequent upon the delay, because he rightly managed the owner's matter (Lugo, disp. 21, n. 31; Croix, III, P. 2, n. 426).

1021. DEFINITION. Cession of goods is the abandonment of all goods which a debtor, unequal to paying, makes to his creditors in order to preserve his liberty.

DIVISION. Cession is either 1. voluntary, or freely accepted by all creditors; and then it has those effects concerning which the debtor and creditors agree; or 2. judicial, that is, declared through the sentence of a legitimate judge. This is a certain benefit conceded by the law itself to an unfortunate debtor of good faith, so that thus, notwithstanding any other stipulation to the contrary, he may be freed from the annoyances of creditors.

Let it be noted from modern Law: 1. Bankruptcy, the state of a debtor ceasing to pay, is either inculpable or culpable. In the former case, if the bankrupt exercises commerce, his whole matter is handled before the tribunal of commerce, where there exists faillite; otherwise, before the ordinary tribunal, deconfiture. - In the latter case, bankruptcy

is judged either as a delict (banqueroute simple) or as a crime (banqueroute frauduleuse), and thence is punished with proportionate penalties.⁰¹

2. Creditors cannot refuse a judicial cession, except in the cases excepted by law, namely if the debtor is a foreigner, a prodigal, fraudulently bankrupt, condemned for theft or usury, etc.

3. Judicial cession does not confer on creditors, by the fact itself, ownership of the goods of the bankrupt; but it confers a right by force of which those goods are administered in their name and then sold for their utility.

1022. PRINCIPLES. I. By a cession of goods carried out without fraud, the obligation of restoring is indeed suspended, but is not taken away. 1. It is suspended, both in the internal forum, on account of inability; and in the external forum, by the benefit of the creditors or of the law itself. 2. It is not taken away: because, unless the contrary is established somewhere, neither the law, at least in most European States,⁰² nor commonly the creditors intend to remit to the debtor that part of the debt which he has not yet been able to pay. Hence, if afterwards the debtor acquires a richer fortune, he is held to full payment; indeed he is held, as far as he can, to labor and to acquire goods, so that he may be able to satisfy full payment (III, 699).

It was said unless the contrary is established somewhere: namely either 1. by the law and its common interpretation; for this, as in prescription, can, with a view to the common good, transfer ownership. This is commonly held in England, according to Crolly (III, n. 1201), and in North America (Konings, n. 861); - or 2. by the creditors, if, for example, they have not sought payment for thirty years.

Indeed there are not lacking authors who probably assert that a composition of the debtor with the creditors is equated with a certain virtual remission. Cf. Aertnys, l. III, n. 365; Ami du Cl., 1910, p. 1069.

1023. II. By a cession of goods, nothing is taken away from the debtor's right to a suitable support of himself and of his own. For the cessor is not of a worse condition than other debtors, for whom grave necessity of family is a just cause of delaying restitution (cf. n. 1008, 2).

Hence, if the debts arise from contract, the cessor is held to pay them if he has acquired more than is required for the decency of his state. But if they arise from delict, for example from theft, usury, he can retain for himself only those things which are necessary for living (H. Ap., X, 117).

From these things you will resolve: 1. A wife and children lawfully receive food from a father burdened by debts, if they do not have support from elsewhere. Indeed, even though the wife could live on her own goods or on those of relatives, she can nevertheless receive food from her husband, even a usurer, who is unable to restore; because the husband is no less held to feed his wife than to pay debts (III, 695).

2. A servant lawfully receives wages from a master burdened by debts, if he is necessary to him, or if he labors for the utility of the creditors. But if he is not necessary, and he notices that by such service the master is rendered unable to satisfy debts, he is held to depart, lest he become the cause of damage to creditors. He can nevertheless lawfully retain what he has already received in good faith (III, 694; H. Ap., X, 115).

3. He who has accepted gifts from a man burdened by debts is held to restitution, if by this ill-timed liberality the faculty of satisfying his creditors is taken away from the debtor; for by such acceptance he becomes the positive cause why the creditors suffer damage (III, 722; H. Ap., X, 128). See nevertheless below n. 1065.

4. He who is burdened by debts cannot without injustice refuse an inheritance by which he can become equal to paying (Ami du Cl., 1910, p. 94).

N. B. Whether one burdened by debts can enter RELIGION, see n. 2139.