Chapter IV. On Causes Excusing from Restitution

Of these causes, some excuse in perpetuity and others for a time. The first are remission or condonation of the debt freely made by the creditor himself, compensation performed by the same by private authority, and prescription legitimately acquired by the debtor. But the others are reduced to impotence, whether physical or moral.

I say. Impotence, whether physical or moral, excuses here and now from making restitution, or rather suspends the obligation. The reason for the first is that no one is held to the impossible; and the reason for the second, that in morals that is called impossible which is very difficult and which cannot be done decently and honorably. Moreover, the creditor is not judged reasonably unwilling toward this temporary excuse. - Cf. St. Alphonsus, Hom. Ap., n. 117.

You Will Resolve. - 1st. A nobleman who cannot restore unless he deprives himself of servants, horses, arms, and thus withdraws from his state; or a principal citizen unless he undertake a mechanical art unaccustomed to him; or a craftsman unless he sell the instruments of his art or undergo great damage, can defer restitution and pay debts gradually. Nor does the exception which some posit, namely, unless a debtor of this sort culpably, for example, by games and drinking-bouts, cast himself into such necessity, seem necessary to St. Alphonsus. Nevertheless it is necessary that the state from which the debtor is not held to withdraw was justly acquired. - Cf. St. Alphonsus, Hom. Ap., n. 118.

2nd. Probably he is excused from restitution who, forgetful of the debt, gratuitously gave something to his creditor which is equivalent to the debt; because each one is judged to wish to satisfy an obligation of justice before mere liberality. - Cf. St. Alphonsus, n. 700; and Hom. Ap., n. 120.

3rd. If both the creditor and the debtor are now in grave necessity, but the debtor by restoring would fall into extreme necessity, probably he is excused from restitution, whatever the origin of the debt may be. Nevertheless, except if the thing itself still exists in species. But if the creditor alone is found in grave necessity, and the debtor by restoring would fall into that necessity, he must restore according to all.

Question 1. Whether cession of goods excuses in perpetuity from making restitution?

Resp. 1st. Negatively, whether that cession is voluntary or judicial; and the reason is that debts legitimately and certainly contracted must certainly be paid. - Nor should you say, 1st, that creditors do not wish any longer to exact the whole by this very fact, that they receive a part; for it is answered that they therefore settle with debtors concerning only a certain part to be paid, because they cannot have more, nor on that account do they renounce the right which they have to full payment. - Nor should you say, 2nd, that the law, in the case of judicial cession, exempts the debtor in perpetuity; for it is answered that that cession is a mere benefit which the law grants to a good-faith and unfortunate debtor, so that one ceding goods may preserve liberty and become immune from coercion in the external forum. For on the one hand that future immunity which is granted in perpetuity by law ("forever discharged from all debts and claims") cannot reach the internal forum; and on the other hand, restricted to the external forum, it favors also creditors, insofar as the unfortunate debtor will thus be able more easily to gather new wealth. - Wherefore Kent says: "It was stated by the Chief Justice, in giving the opinion of the Supreme Court of the United States, in Sturgess v. Crowninshield, 4, Wheaton, 122, that the insolvent laws of most of the States only discharge the person of the debtor, and leave his obligation to pay out of his future acquisitions in full force." - Nevertheless, if sometimes from the adjuncts of things it appears that creditors wish to condone all things, or if somewhere commerce is so carried on that among merchants account is had of a probable future cession of goods, then it does not seem why an obligation should be imposed in perpetuity. - Cf. St. Alphonsus, n. 669. - Billuart, dissert. 8, art. 20. - Kenrick, n. 211. - Kent, Comment., vol. 2, nn. 394 and 395. - Wells, Every Man, etc., p. 598. - Konings, n. 861.

Resp. 2nd. The affirmative opinion is probable. For the law now in force and passed July 1, 1898, for all our States and Territories plainly admits this interpretation: "A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as are due to a tax levied by the United States, etc." Nothing is found in the law which proves the contrary opinion. Where the law does not distinguish, neither ought we to distinguish. Certainly the mind of the legislator was to add an incentive to these unfortunate men, that they might begin life anew without impediment, with all their powers directed to this, that they might provide for their own and for themselves; and this perhaps would be difficult if they were still held to pay debts in conscience. - Cf. Slater, Moral Theology, v. 1, n. 438; note of the American commentator, the distinguished Fr. Martin, where this opinion is splendidly defended. - Bouvier, Law Dictionary, § Bankrupt, § Insolvency. - Cf. "United States Bankruptcy Law," July 1, 1898, June 5, 1910, Senate Document No. 10.

Question 2. Whether one burdened with debts can enter religion, and whether he is freed from debts if he has entered?

Resp. to the 1st: Negatively, if within a short time he can have that from which he may pay; otherwise, more probably in itself, if he must wait through a notable time. - St. Alphonsus, n. 74. - Nevertheless, if the debts are of great moment, such an entry, although valid, is prohibited by canon law as illicit.

Resp. to the 2nd: 1st. The religious order is not held to pay these debts from its own goods, as is clear. 2nd. The religious is held to pay from the goods which he had before profession, or which come to him by legacy, if he has emitted simple vows only; otherwise, however, if he has been solemnly professed. Thus commonly. Nevertheless, according to others, certain goods come to the religious by inheritance, legacy, or donation, and are acquired by the monastery, so that they pass to it with all the burdens which they would have if the religious himself were capable. Therefore from these goods the religious order itself must pay those debts. - Cf. Lugo, disp. 21, n. 79.

Question 3. Whether he is freed from restitution who pays a debt to the creditor of his creditor; for example, I owe you $100, but you owe $100 to Titius; shall I satisfy by paying $100 to Titius?

Resp. Affirmatively, in itself, to the apex of the law. The reason is that I, by paying to your creditor that which you owe him, acquire the right which he had of demanding his debt from you; whence the right which I have against you is equivalent to the right which you have against me, and compensation occurs. For your creditor can transfer to me his right, or I can buy it, just like anyone else who owes you nothing. St. Alphonsus, n. 700. - Billuart, diss. 8, art. 14, par. 1. - Vogler, n. 541, and others commonly.

I said, 1st, in itself, because I am not freed if perhaps you are still compelled to pay, or if you have privileged or mortgage creditors.

I said, 2nd, to the apex of the law, because such payment, if it is made without cause, will be illicit because of various inconveniences to which it is liable. But there is a sufficient reason if your creditor cannot recover his debt. - Billuart, ibid.

Question 4. Whether a debtor is freed in doubt or probability of payment?

Resp. 1st. No, in mere doubt, as is clear. For an obligation once contracted must be fulfilled, unless a solid reason persuades that payment has been made. The same is to be held where presumption is adverse to the debtor, which more often is accustomed to happen, especially when his doubt must be attributed to negligence.

Resp. 2nd. In true probability, there is controversy. The first opinion, the more common, denies. The reason is: 1st, because he does not satisfy a certain obligation by a doubtful fulfillment; 2nd, because the burden belongs to the debtor of attending and keeping watch, so that he restore certainly; whence the doubt that has arisen must be imputed to his negligence, from which the creditor ought not suffer damage. - St. Alphonsus, n. 700, and lib. 1, n. 27 and following. - Lugo, disp. 18, n. 12. - Lacroix, n. 571, although he holds the opposite, as Lugo himself also, when treating of another obligation and of justice; and many others.

The second opinion says that restitution must be made according to the proportion of the doubt, at least if both parties doubt; because, since the creditor has no right unless probable, it is not equitable that as much be paid to him as would be paid if he had a certain right. - Tamburini; Laymann; Diana; Reuter says this is probable, n. 449, although he holds the opposite as more probable.

The third opinion frees the debtor from every obligation, because an obligation is not to be imposed unless it is certain concerning it. And indeed why the debtor ought to be held to the safer side rather than the creditor is difficult to discern. - Cf. Bossius, Tanner, Viva, etc., apud Lacroix, and Reuter.

Question 5. Whether reasonably presumed condonation excuses from restitution?

Resp. Affirmatively, at least more probably, because retention of another's thing, or omission of restitution, is not unjust unless it is done against the unwilling owner. But it is not done against an unwilling owner or creditor if it is done from his presumed will. Therefore. - Lacroix, n. 462. - Lugo, disp. 21, n. 54. - St. Alphonsus, n. 700. - And hence domestics who steal foodstuffs and similar things from their masters while unwilling as to the manner of secretly stealing, but not as to the substance of the thing, can indeed sometimes be excused from mortal sin; and besides, the master can be unwilling as to the end for which the thing is taken without being unwilling because of the thing in itself, as, for instance, a father with respect to a son who steals a thing for gaming or illicit pleasures; therefore regularly no obligation of restoring arises. Whence Lugo deduces a general rule from these words: "for excusing many penitents from restitution, namely when they think that, if by themselves or by others they were to manifest their debt to the master, he himself would liberally condone it, or would be unwilling to oblige to restitution, for there is already given a sufficiently presumed will of the master, so that retention is not against the unwilling master as to the substance of the thing." - Lugo, ib. 55. But in these cases the confessor has need of great prudence.

For theft it is required that the owner be unwilling positively, that is, that he have a will of retaining his right against me; and thus it is not theft when I receive that which I know the owner would give me if I were to ask; for the owner is not unwilling, although he does not have the will of giving.