§ 2. ORDER OF COMMON CREDITORS FROM NATURAL LAW

From the law of nature few things are certain, and therefore several are controverted.

1004. PRINCIPLES. I. Another's thing, existing with the debtor, must be returned to the owner, nor can it be given in payment to others. The reason is that the thing cries out for the owner, and debts must be paid from one's own things, not from another's. Therefore the owner of the thing must always be preferred, unless positive law intervenes, as we said in n. 936. Cf. Lugo, disp. 20, S. 2.

II. Debts from an onerous title, whether they have arisen from contract or from delict, must be paid before those which rest only on a gratuitous title. The reason is that in a gratuitous pact the condition is always understood: that it can be done without damage to a third party; or: unless the state of things is notably changed. For the axiom urges: "No one is liberal unless liberated."

Hence the debts of the deceased must be paid before all vows and legacies, even pious ones (III, 684-689).

1005. Less certain, yet probable, are the following:

1. Certain creditors are probably to be placed before uncertain or unknown creditors. The reason is that uncertain or unknown creditors are presumed to consent to this: both so that the debtor may be freed from certain creditors pressing him, and so that they themselves may preserve their right intact, in the case in which afterward, circumstances having changed, they may be able to recover it. Thus commonly.

But the opposite opinion also is probable, which says that then the poor are equal in their right with certain creditors: "For such is presumed to be the will of creditors, that what cannot be restored to them be restored to the poor for their souls" (III, 687).

2. Poor creditors can probably be preferred to the rich. The reason of St. Thomas (Opusc. 73, c. 18, v. fin.) is that the poor person suffers greater damage.

But others more probably say that restitution must be made pro rata to both the rich and the poor, because commutative justice attends only to right, not to persons.

Except the case in which other creditors would be held, from the precise obligation of alms, to assist such a poor creditor (III, 691; H. Ap., X, 113).

3. Creditors prior in time can be placed before later ones, according to the more probable and more common opinion. For Rule 45 in the Sext, "He who is prior in time is stronger in right," although it is assigned by civil law only for hypothecary creditors, is nevertheless assigned by canon Law for all, and is founded in the law of nature itself.

But the denying opinion also is probable, because goods are not obligated to chirographary or common creditors, but the person of the debtor himself; and this equally for all, without priority (H. Ap., X, 112).

4. If one of the creditors first seeks payment in court, the whole debt can be paid to him, even if he is later in time than the others; because the sentence of the judge confers privilege upon him. And the same must more probably be said if he seeks outside court; because laws favor the watchful and confer on them a species of privilege (III, 692; H. Ap., X, 114).

Except if the cession of goods has already been publicly declared; because then the debtor already exists stripped of the administration of his goods, and juridic cession confers on all common creditors a right to the rate of each one's part (cf. n. 1021).

1006. From these things you will gather: a) The debtor can wholly satisfy a creditor having a probable right of precedence, but he is not held. But the creditor, when payment of this kind has been made, can retain it. Thus, namely, from the principles of equiprobabilism (cf. n. 74).

b) A debtor unequal to paying all cannot wholly satisfy a creditor having neither a certain nor a probable right of precedence, but only pro rata, just like the other creditors of equal degree. Wherefore, according to the truer opinion, if the creditor has accepted full payment offered to him voluntarily, he cannot retain it, but from it he must restore to the other creditors their due part. "Nor does it profit the creditor that he accepted in good faith; for although by accepting he did not do injury to the other creditors, nevertheless by retaining with their damage he does so, since they had at least an equal right to the goods of the debtor" (III, 693).

Nevertheless, if a creditor who in good faith accepted full payment cannot easily be brought to believe that he is held to restitution, especially when he is not constrained to it by positive Law, restitution does not seem to be urged. - Besides, because we are dealing in a matter of strict right, the unjust acceptance must be altogether established. There are not lacking authors who with Lugo say that the creditor concerning whom there is speech is not held to restitution. Cf. Lehmkuhl, I, n. 1221.