ARTICLE II: On Causes Which Take Away the Obligation of Restitution

Three causes are numbered: 1. legitimate compensation; - 2. condonation of the creditor; - 3. authority of public power. On transaction, which is usually joined to these causes, see n. 1160.

1024. Compensation is one thing improper, or extralegal, by which the creditor satisfies himself, by taking a thing of the debtor equivalent to the debt. It is another thing proper, or legal, and is had when two persons are mutually debtors to each other: for example, I owe you one hundred for grain, and you owe me one hundred for wine. In Law this is called "the contribution of debt and credit with each other."⁰³

Each compensation extinguishes the obligation of restoring, because it removes inequality (cf. n. 924).

1025. • IT IS ASKED. Whether he is freed from restitution who pays a debt to the CREDITOR of his own creditor?

Resp. Affirmatively of itself and in the rigor of Law. Thus, for example, I owe you one hundred francs, but you owe one hundred to Titius: I satisfy you by paying your creditor Titius; for by paying to him that which you owe him, I acquire the right which he had of requiring his debt from you; and from this there arises the contribution of debt and credit with each other, or legal compensation. We 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; - 2. in the rigor of Law; because such payment, if it is made without cause, will be illicit on account of the various inconveniences to which it is liable. But there would be a sufficient reason if the creditor of the creditor could not otherwise recover his debt (III, 699, 700). But in the external forum such payment can be impugned.⁰⁴

NOTION. Condonation, in the matter of justice, is the remission of a debt freely made by a creditor capable of condoning.

1026. PRINCIPLE. To take away the obligation of restitution, express condonation is not always required, but tacit, or even presumed, condonation suffices, provided it is morally certain. The reason is that, for accepting or retaining another's thing without injustice, the positive will of the owner is not required; but it is enough that he not be positively unwilling; namely, this excuses you from fault, at least mortal fault. But if the owner is rightly supposed to be unwilling with respect to the mode, for example the mode of taking secretly, the one omitting restitution indeed does not sin mortally, yet he cannot be excused from venial sin.

Hence: 1. A master who expels a servant, a worker, on account of light thefts, tacitly remits to him every obligation, because he asks nothing. Yet from this it does not follow that condonation is present with respect to gifts which the servant perhaps made to strangers. - Similarly, a master is presumed to remit every obligation if he has caught a servant in manifest grave theft, and expels him or only rebukes him, without demanding restitution. 2. Parents are rightly presumed to remit to their children the obligation of repairing thefts even grave ones, if the things have already been consumed and the coheirs are not gravely harmed.⁰⁵ See also n. 907. - 3. With respect to the poor, who have stolen small things from different persons, condonation on the part of the owners is presumed. If they have committed little thefts to the damage of one person, partial condonation can be presumed.

Note. How, in the external forum, condonation or remission of a debt is proved or presumed, see in the various Codes.⁰⁶

1027. Prelim. The faculty of transferring ownership belongs both to the civil prince, in order to the temporal public good, and to the Supreme Pontiff, in order to the spiritual public good (cf. n. 841 and 873, note). Thence it follows that the burden of restitution can, when a just cause intervenes, be taken away by either power.

To this are referred the things which above we said at length concerning the finding of treasure, concerning liberative prescription, concerning the fruits of another's thing perceived in good faith. It is useful to add a few things here: 1. concerning the sentence of a judge; - 2. concerning composition with the Supreme Pontiff; - 3. concerning sanation upon goods of the Church unjustly alienated.

1028. I. On the sentence of a judge. Among all it is admitted that the sentence of a judge, relying on truth, takes away the obligation of restitution. For it is supported by the authority of laws, which, by reason of the common good, legitimately transfer ownership of things.

Hence, you are not held to restore: 1. if the judge, as a penalty for some delict committed by your creditor, imposes this fine, that you do not restore to him what you owe him; - 2. if from equity he adjudges to you something which otherwise, in the rigor of justice, would not be owed to you (Viva, de Rest., q. 5, a. 4, III).

1029. II. On composition with the Supreme Pontiff. Composition with the Supreme Pontiff is had when the Roman Pontiff, from his supreme power, transacts in such a way that one part of the debt indeed is expended on pious causes, while the other part is condoned to the debtor, while nevertheless supplying from the treasury of the Church the spiritual utility which would come to the owner if the whole debt had been given in alms (cf. H. Ap., X, 117, 2; Lugo, disp. 21, n. 91).

There is no controversy that a legitimate composition frees the debtor in the forum of conscience. The reason is that the Supreme Pontiff orders all things in this way on account of the common good. Nor are the rights of the legitimate owner altogether ignored, since compensation accrues from spiritual goods.

We said: 1. Legitimate compensation. For it is required: a) that the goods be altogether uncertain; for if the owners are known in some way, as in the small thefts of merchants defrauding in weight and measure, they cannot, without injury, directly and without their consent, be despoiled; b) that there be a just cause; otherwise the composition would indeed be valid, but illicit in ecclesiastical things; but in other things, when cause is lacking, it would also be invalid, because, in the first case, the Supreme Pontiff dispenses in his own law, but not so in the second. - 2. It frees the debtor; for a composition once made is not revoked, although the owner appears; because ownership has already been legitimately transferred. Thus Lugo against others, who will that the debtor in that case is held to restore to the owner that in which he has been made richer (III, 592, 593).

Note. a) A priest who is anxious on account of Masses celebrated with doubtful matter can be admonished to obtain a composition. Cf. n. 1620. - b) A composition with respect to uncertain goods is made through the Bull of the CRUSADE, for those to whom it has been granted. It can also be obtained from the SACRED PENITENTIARY, which has power, from the Bull Pastor bonus, to remit part of ill-taken or retained goods, if the owner is uncertain, the case occult, and the delinquent poor. But the part which is not remitted is to be expended on the poor or on pious works, and indeed, if it can be done, in those very places where the unjust acquisition of those goods was made (cf. n. 999). c) As concerns Bishops, the truer opinion holds that the faculty of composition does not belong to them, since it is an act of supreme power (III, 696, 2).

1030. • III. On sanation. Sanation upon goods of the Church unjustly alienated is said to be done when the Supreme Pontiff, as supreme administrator of the goods of the Church, on account of a just and most grave cause, convalidates alienations of this kind. Thus he convalidated the alienations which were made in the time of the French disturbance. For Austria, with respect to the tithes taken away, sanation was given through the Concordat, 18 Aug. 1855.

1031. • Points to be noted. 1. A GENERAL SANATION, for a whole kingdom, has often been granted by the Holy See. Such a sanation was made: a) For ENGLAND, after Henry VIII, from the faculty granted by Julius III to Cardinal Pole. b) For FRANCE and BELGIUM, on 15 August 1801 through the Bull Ecclesiae Christi.⁰⁷ c) For the kingdom of the TWO SICILIES, on 7 March 1818 through the Constitution In supremo. d) For PIEDMONT and the duchy of GENOA, on 20 Dec. 1816 through the Brief Datis ad nos demum. e) For PRUSSIA, on 16 July 1821 through the Constitution De salute animarum.⁰⁸ - f) For the whole kingdom of Sardinia, on 14 May 1828 through the Bull Gravissimae of Leo XII. g) For SPAIN, a twofold sanation was made: the first through the concordat of 16 March 1851, the second through the additional convention of 25 August 1859 (cf. Gury-Ferreres, I, n. 750; for Latin America see his Appendix to n. 558).

By force of these sanations, as the Sacred Penitentiary declared on 10 March 1818, ecclesiastical goods already exist in the full ownership of the acquirers, so that they may safely and freely retain them, enjoy them, and even alienate them, both in the external and internal forum, provided nevertheless that the acquisition was made according to the laws then in force. Yet the Holy See exhorts those acquirers that, according to their piety and religion, they be willing to satisfy the pious burdens of Masses, alms, and other similar things, which perhaps formerly were fixed to those goods.⁰⁹ Similar rescripts came forth for upper Italy in the years 1845 and 1847.¹⁰

From these things you will gather which ecclesiastical goods are still SUBJECT TO RESTITUTION: a) namely those which were never occupied by the Government, but escaped its hands, because they either remained with private persons, for example the tenants of those goods, or were usurped by private persons themselves by force; b) goods which, after conventions had already been entered upon with the Holy See, for example in France after the concordat, were occupied by the Government; c) goods which, while conventions were being entered upon, were promised by the Government as to be handed over to the Church, and yet afterwards were not handed over. All these things are evident of themselves.

Restitution of these goods is to be made according to the rules to which possessors of good or bad faith are subject, namely as the usurpers, or their heirs, are situated in good or bad faith.¹¹

2. NO GENERAL SANATION has been promulgated after the recent unjust spoliation of the Religious Orders or of the Church in France. Only composition is admitted, which is, as the Sacred Penitentiary says, at once equitable and benign. See the decisions of the Secretariat of State, 21 Sept. 1907, and of the Sacred Penitentiary, 16 Jan. 1909.¹² This same thing had already previously been established with respect to goods of the Church usurped and not yet condoned, for example goods usurped in Italy from the year 1860.

Bishops have obtained peculiar faculties by force of which acquirers of ecclesiastical goods can, under certain conditions, be admitted to composition. The faculties are granted for a year according to the norm given by the Sacred Penitentiary, on 15 April 1892.¹³