Article I: On Causes Excusing for a Time

336. The causes excusing for a time, on account of which restitution can licitly be deferred, are:

1. Inculpable ignorance, whether it is of fact, as if you are ignorant that the thing is another's, or of law, as if you do not know that the debt, even with the creditor deceased, is to be restored to the heirs; ignorance does not excuse from material sin, but only from formal sin.

2. Inability strictly so called or absolute, which is placed in this, that the debtor has nothing from which he may restore, or not without being reduced to extreme necessity, for example, one who burns a house and is detained in prison: for no one is bound to the impossible, and in the case of extreme necessity everyone can take secretly and, a fortiori, preserve those things which are necessary for relieving that necessity; yet it is always necessary that there be present the will of restoring in the future, when inability ceases.

3. Moral inability, namely, grave damage to oneself, or grave necessity, unless the creditor would fall into the same necessity. Thus if restitution cannot be made: a) without grave danger to salvation, life, health, reputation, or liberty; b) without a change of an honest state justly acquired; c) without damage grave in one's own temporal goods and much greater than is the damage of the owner or creditor from the delayed restitution.

4. Grave imminent damage to another, either to the creditor himself or to a third party: for then the creditor is not judged reasonably unwilling, and from charity the debtor is bound to defer restitution if this can conveniently be done, for example, if it is foreseen that the owner will soon abuse his thing for indulging drunkenness or lust; indeed sometimes from justice he must defer, if it can be done without graver inconvenience, when the owner by means of the restored thing would soon commit injustice, for example, if with a sword returned he would kill, because then the one restoring would be accounted as proximately cooperating toward inflicting damage on another. Yet it is necessary that delay in the case be an efficacious remedy: for if in no way it could prevent the evil effect, because the creditor would easily use other means for sinning or harming, there is now no reason for deferring restitution.

337. Corollaries. - Hence the debtor is excused from restitution to be made immediately:

1. if he is in grave temporal necessity, unless the creditor were in the same necessity; but if the debtor, by restoring, would fall into extreme or quasi-extreme necessity, while the creditor is only in grave necessity, restitution can be deferred, yet not if the creditor has previously come into extreme necessity, because then the unjust possessor could not appropriate the thing to himself;

2. if he ought to undergo damage of a higher order, whether of body or of soul, for example, if he himself or someone of his own would have to suffer loss of life, health, liberty, and a fortiori if he would be exposed to the danger of sinning, say if he would fall into despair, or a spouse or daughters would prostitute themselves, or sons would give themselves to robberies;

3. if he ought to undergo grave damage in reputation, at least regularly, because the good of reputation is of a higher order than the good of fortune; whence an adulteress ought not to reveal her crime lest legitimate children be injured in the division of goods;

4. if he ought to fall away from his own state justly acquired, even if by his own fault, gambling, drunkenness, he has incurred this necessity, for example, if a merchant or magistrate would lose his business or office or be reduced to servitude.

Nevertheless a) then there is incumbent on him the obligation of diminishing expenses and living sparingly and laboring diligently, so that he can restore as soon as possible; whence those are not to be absolved who change nothing in their state; b) he cannot use the aforesaid privilege who, in public estimation, acquired his state unjustly, as by robbery, fraud, usury, a supposititious testament, etc., because by restoring he does not fall away from a state but rather is reduced to a just state.

5. if he would suffer great damage in goods justly acquired, which notably (at least by double) exceeds the damage which the creditor suffers from the delay, for example, if the owner or merchant would have to sell his possessions or wares at a much lower price than they are worth, or a worker would have to deprive himself of an instrument necessary for working; yet the mere privation of gain does not suffice.

338. Cession of goods. - One unable to pay all debts can make a cession of goods (goederenafstand). It is the abandonment of all goods which a debtor unequal to paying makes to his creditors for preserving his liberty.¹ One kind is voluntary, which is offered spontaneously and accepted by the creditors; another is judicial, which is imposed by a judge even when the creditors are unwilling. Moreover, each can be culpable or inculpable, according as the debtor has become unequal to paying debts from his own fault or fraud, or from mere misfortune. Now in the case:

¹ C. C., a. 1265-1270; Belgian C. Com., a. 535.

1. The debtor must hand over all goods and cannot retain for himself except those which are necessary for the honest support of himself and his own, yet living sparingly according to condition: for he can licitly defer restitution lest he fall down from his state. Thus from natural law; otherwise the tribunal itself is accustomed to provide for this necessity, and then the debtor is now bound sincerely to hand over all things.

2. Whence he sins gravely against justice who, besides goods necessary for himself and his own, conceals others and withdraws them from creditors, whether after or before cession (verduistering): whether by placing them elsewhere, or by selling them and placing the money obtained therefrom in safety, or by fictitiously selling so that he may afterward enjoy them, or by all other frauds. - Unless perhaps there were question of things of the family which, because of memory of parents or friends, are very dear to the debtor, but are held by others as of lesser price.

3. The debtor himself acting unjustly in this way, and the cooperators or participants in this defrauding, provided they are conscious of the injustice, are bound to restitution for the damage inflicted on the creditors.

4. Some have judged that the debtor is not guilty of injustice who would reserve for himself a few means by which he could afterward begin some small business. But this can be permitted only if the creditors are judged to consent to it, so that there may be greater hope afterward of obtaining integral payment; for the law is not accustomed to grant this.

339. Observation. - Is a debtor who has deferred restitution on account of a just cause bound to compensate the ceasing gain or emergent damage which the creditor has suffered therefrom?

R. 1) A debtor of good faith is not bound, if he has not been in culpable delay, because he is not the unjust and culpable cause of this damage; yet as soon as he knows the thing to be another's, he can no longer perceive the fruits of the thing, but from this moment he is bound to pay them to the owner;

2. a debtor from delict, or a possessor of bad faith or unjust damager, is bound to compensate all things, because the damage is unjust, since it proceeds from an unjust and culpable cause, as was already said above in n. 333, 3.