§ 2. On Causes Excusing for a Time

243. The causes principally excusing from restitution for a time are temporary inability and cession of goods.

Temporary inability is either physical or moral. The former is present when the debtor has nothing from which he can make restitution; e.g., someone burned another's house and, on account of this crime, is cast into prison for ten years. Since he possesses no goods and cannot acquire new goods during the time of imprisonment, he is in a physical impossibility of making restitution, and consequently is excused, at least for a time.

Moral inability is present when grave damage would arise from restitution for the debtor or even for another person. But this damage which would arise must be much graver than that which arises for the creditor from the omission of restitution. This is evident of itself, because the creditor reasonably demands his goods, which he cannot lack without grave damage. Nevertheless, if the debtor by making restitution would fall into extreme necessity, he is not bound to restitution, even if the creditor, through the omission of restitution, should be in grave necessity.

Corollaries. An inability to make restitution is present:

1. If the debtor, by making restitution, would fall from his justly acquired state, e.g., from the state of a merchant to that of a servant, he can defer restitution; nevertheless, he must labor more diligently and diminish his expenses, so that he may be able to make restitution as soon as possible.

2. If the debtor, by making restitution at once, would suffer notable damage which would probably be avoided through delayed restitution, he is excused for a time; e.g., a merchant bound to restitution is not held now to sell his merchandise at a lower price in order to have money for making restitution, if there is hope that the price of the merchandise will soon be increased. Likewise, a workman is not held to sell the instruments necessary for working in order to pay his debts.

3. If restitution cannot be made without damage in goods of a higher order, e.g., without danger to reputation and honor, as if an adulterous wife cannot repair the damage caused without great infamy to herself. - On this occasion it is asked whether one burdened with debt can enter religion before he has made restitution. The answer is to be given with several distinctions: a) If within a short time he can satisfy the obligation of restitution, he is altogether bound to defer entrance into religion until after restitution has been made. b) If there is no founded hope that restitution can be made within several years, it must be seen whether the creditor is known and whether he knows or probably will come to know the debtor. In this case the debtor cannot enter religion, both because ecclesiastical law¹²² gravely prohibits those who are burdened with debt from being received into religion, and because, on account of civil laws, the greatest inconveniences and scandals for religion and for the Catholic Church can easily arise. But if the creditor is unknown and there is no danger that the debtor will afterwards be discovered, then entrance into religion seems lawful.¹²³ The reason is that otherwise this man would suffer great spiritual damage through omitted entrance into religion, and moreover even after several years he will be incapable of making restitution. But the creditor, as being wholly unknown, suffers no damage if restitution is omitted. Finally, as is supposed, inconveniences and scandals for religion cannot arise. - But if someone having an obligation of restitution has deceitfully entered and been professed in religion, the profession is indeed valid, but the religious institute is not bound to pay the debts contracted by its subject. The religious, however, is obliged to satisfy the creditors in the best manner he can.

4. If it is foreseen that the owner will abuse the thing to be restored for sin or for the unjust damage of a third party.¹²⁴

¹²² Clement VIII, Constitution In suprema, 2 April 1602; and the Code of Canon Law, c. 542, n. 2, establishes: "Those burdened with debt who are not able to pay are illicitly, but validly, admitted to the novitiate."

¹²³ Cf. S. theol. 2, 2, q. 189, a. 6 ad 3.

¹²⁴ Ibid., q. 62, a. 5 ad 1.

244. Cession of goods is said to be that act by which a debtor, unable to pay in full, cedes his goods, so that the creditors may receive at least according to some proportion the money owed to them.

1. A twofold cession of goods is distinguished: judicial and extrajudicial. Judicial cession is had when either the debtor himself (judicial cession strictly so called) or one of his creditors (necessary cession) denounces to the judge the debtor's inability to pay. Extrajudicial cession, however, is a cession of goods offered by an insolvent debtor and freely accepted by the creditors. This extrajudicial cession is wont to have place when the debtor, without any fault and from mere misfortune, has been reduced to straits in paying and gives hope that he will pay later; or also in a case in which, through judicial cession, the creditors would suffer even greater damage.

2. Cession, both judicial and extrajudicial, can on the part of the debtor be either culpable or fraudulent, or inculpable.

245. Principle 1. The statutes of civil laws in the judicial cession of goods ordinarily seem to oblige in conscience, so that their violation easily induces an obligation of restitution.

Thus the common opinion. The reason is that those statutes are just determinations of natural law, preserving in the best manner they can the rights of the individual creditors and avoiding excessive harshness toward the debtor. Therefore, it is not lawful for the debtor secretly to withdraw goods, nor to enter contracts, make donations, etc., prohibited by civil law.

246. Principle 2. A debtor ceding his goods can, by both natural and positive law, retain for himself those goods which are altogether necessary for decent and humble support, and indeed also those goods which are necessary means for beginning a new small business. The same holds for the debtor's wife and children.

The reason is that everyone has a right to fitting support, since no one is held to beg.¹²⁵

¹²⁵ Cf. Billuart, De iure et iust. diss. 8, a. 20.

247. Principle 3. Every cession of goods of itself does not extinguish the obligation of restitution in conscience, but only suspends it for a time.

The reason is that the creditors consent only under compulsion to receiving merely a part of the goods owed to them. Consequently, if the debtor afterwards is again able to make restitution, he is ordinarily bound to indemnify all the creditors.¹²⁶ I say, however: he is ordinarily bound. For if the civil laws of some region not only exclude the creditors' judicial action, but also render the debtor altogether immune from every future obligation of making restitution and paying, the creditors are considered to consent to these laws and to renounce their rights. Crolly contends that the laws of England are of this kind.¹²⁷ Civil laws, however, seem truly able to extinguish every obligation of paying debts, since this is sometimes very useful for the employment of diligence in commerce. But all theologians teach that the obligation of restitution always remains when the cession of goods was made fraudulently or with grave fault through negligence in administering the goods.

¹²⁶ Cf. Billuart, De iure et iust. diss. 8, a. 20.

¹²⁷ De iure et iust. III, n. 1232; cf. Stephen, Commentaries on the Laws of England II, 183 (ed. 11).