§ 1. On Exempting Causes

241. Five exempting causes can be enumerated: remission, compensation, prescription, composition, and extreme necessity.

The express, tacit, or even presumed remission of the creditor exempts from restitution. It is required, however, that express remission be: a) altogether free, i.e., immune from every error, fraud, force, and fear; b) made by him who has the power of remitting according to both natural and positive law. Hence, e.g., remission is invalid if the creditor is deceived concerning the quantity of the debt, thinking it to be much less than it really is; likewise, if the debtor falsely pretends to be miserable and exceedingly poor in order to arouse the creditor's mercy; likewise, if a wife remits restitution to be made from her husband's goods, etc. - Sometimes a confessor can prudently seek express remission from the creditor in the name of the penitent if it is truly exceedingly hard for the penitent to make restitution. Nevertheless, let the confessor be very cautious lest the seal of confession be violated and lest great inconveniences arise for himself from such a request.

Tacit or presumed remission is regarded as present when it can prudently be judged that the creditor, if asked in a fitting manner by the debtor or by the confessor in the name of the debtor, would willingly remit the debt; e.g., in thefts committed by children of a family, at least if the thing taken away no longer exists; for parents ordinarily are not so unwilling on account of the thing itself taken away as on account of the furtive manner of its taking. Likewise, the husband's remission can sometimes be presumed in thefts by the wife, provided they were committed for reasonable expenses. Likewise, in petty thefts committed by servants in food and other things committed to their care. Likewise, in petty thefts (which did not coalesce into grave matter within a short time) committed by workers, e.g., by carrying away small things such as wood, metal, cloth, etc., the owner is not greatly unwilling, because he does not suffer great damage. Therefore, after the deed, remission can be presumed. Nevertheless, workers are to be deterred from thefts of this kind, both because of the bad example with respect to their other companions and because of the danger of gradually arriving at grave matter.

Compensation is the reciprocal extinction of two debts and is had when a creditor has exacted, either from the debtor himself or from that debtor's debtors, those things to which he had a right. E.g., Peter owes Paul 100 francs; Andrew owes Peter 100 francs. Paul, who cannot obtain the sum of 100 francs from Peter, exacts it (with the authority of civil law) from Andrew and obtains it. Both debts are now extinguished. In practice the statutes of civil law concerning this matter are to be observed.

Prescription extinguishes, after the legitimate time, the debt of a possessor in good faith, as was said above in n. 213; but it can never free a possessor in bad faith from the obligation of restitution, because the necessary condition, namely, good faith, is lacking.

242. Composition, which is a remission of debt made by the Supreme Pontiff, can have place only: a) in ecclesiastical goods; and b) in goods which are owed to uncertain owners. Since the Supreme Pontiff has the high dominion of all ecclesiastical goods, he can for a just cause on account of the common good remit ecclesiastical goods usurped or acquired in another illegitimate manner both to civil governments and to individual persons.

Ecclesiastical goods usurped have many times been remitted to civil governments. Thus, e.g., all ecclesiastical goods occupied up to 15 July 1801 were remitted to the government of France. But the faithful who bought or acquired by another title these goods usurped up to that time, although this acquisition was made after 15 July 1801, can retain them rightfully and peacefully.¹¹⁶ This is also established from the letters of Pius VII directed to the Bishop of Poitiers in 1822. But ecclesiastical goods usurped in the latest French persecution have not yet been remitted. For Spain remission was made both by the Concordat on 16 March 1851 and by the additional convention on 25 August 1859. - For Belgium remission was made on 16 December 1833 with respect to all goods usurped by the government. - For the Kingdom of Prussia remission was made on 7 February 1894 concerning all goods which were secularized up to the end of the year 1824 and are at present possessed by private persons as their own or will be possessed in the future.¹¹⁷ - For Italy the faculty of making composition was granted to the bishops if the ecclesiastical goods occupied do not exceed the value of 30,000 francs.¹¹⁸

How one is to act with private persons who bought ecclesiastical goods usurped by the civil government or acquired them by another title cannot be determined by one general rule. The statutes enacted for the individual regions are to be consulted. But if some doubt remains, recourse is to be had to the Sacred Penitentiary.

If there is question not of ecclesiastical goods but of goods belonging to an uncertain owner and therefore to be distributed to the poor or to pious causes, theologians commonly teach that the Supreme Pontiff can for a just cause grant composition, because even the support of the poor in some manner belongs to the Church and is subject to the jurisdiction of the Supreme Pontiff, who can dispense in all things which are not directly contrary to natural or divine law. But no one will say that composition, when the legitimate owner cannot be found, is directly contrary to natural or divine law. The Supreme Pontiff ordinarily makes this composition in such a manner that he decrees that some part of the debt is to be applied to pious causes or to the poor, remits the remaining part, and finally from the treasury of the Church supplies the spiritual fruit which would have come to the unknown owner if he had given in alms or to pious causes all those goods taken away from him. To obtain this composition it is ordinarily necessary to have recourse to the Sacred Penitentiary, which grants it provided that: a) the owner is uncertain; b) the case is occult; c) the delinquent is poor. In Spain, Portugal, and other places where the Bull Cruciada is still in use, special faculties concerning this matter are had.¹¹⁹

But what is to be done if, by an unexpected event, after the debt to be restored has been distributed to the poor or to pious causes, the true owner appears? In that case: a) prescription can be employed, which, especially in movable things, does not require a long time according to modern laws. But if: b) the legally determined time has not yet elapsed, the debtor is nevertheless not held to restore that which he has already given in good faith to the poor or to pious causes,¹²⁰ and indeed, according to many theologians, not even that which the Supreme Pontiff remitted.¹²¹

Extreme or quasi-extreme necessity excuses, and indeed exempts from every obligation of restitution, when no hope appears of removing it. For then restitution is morally impossible. But no one is bound to the impossible.

¹¹⁶ Cf. the response of the Sacred Penitentiary, 20 March 1848.

¹¹⁷ Cf. Vogt, Kirchenvermögensrecht § 20.

¹¹⁸ Cf. Cardinal Gennari, Consultazioni morali canoniche-liturgiche, consultation I, pp. 17-54.

¹¹⁹ Acta Apostolicae Sedis VII (1915), pp. 553 and 562.

¹²⁰ Cf. Tanquerey, De iust. n. 610.

¹²¹ Cf. St. Alphonsus, Theol. mor. l. 3, n. 592.