Chapter VI. Causes Which Excuse from Making Restitution

ONE who is per se bound to make restitution may sometimes be excused from doing so for special reasons, either entirely or at any rate for a time. It is plain that if the owner does not expect or wish restitution to be made, although he was unwilling to be injured, the obligation will cease. A rich father may be unwilling that his son should take from him a sum of money without his permission, but after it has been done he may not care to exact restitution. Similarly, a wealthy man would be very angry if a neighbour took one of his horses out of the stable and used it for a day’s work; he might demand an apology, but he probably would not take any money compensation; he does not keep livery stables.

Physical or moral incapacity to make restitution will be a valid excuse as long as it lasts. If a man has no means, or if he cannot make restitution without reducing himself to beggary, it will be sufficient if he have the wish and intention to restore when he is able to do so. Sometimes it may be possible for one who has stolen a large sum which he cannot at once repay to lay by a little at a time and thus by degrees save the amount required. If this can reasonably be done, it will be of obligation. It would be unreasonable to expect a man to make restitution when it could not be done without costing a great deal more than the object restored was worth, or when restitution of a sum of money would lead to loss of reputation, position, and future prospects. If in such cases means exist for making secret restitution, they should of course be adopted.

When a man becomes bankrupt all his property, with the exception of the tools of his trade and the necessary wearing apparel and bedding for himself, wife, and children, to the value of £20, will vest in the official receiver and trustee.

These officials will also be able to claim for the benefit of the creditors future acquisitions of property until the bankrupt has obtained his discharge. The question arises whether after a bankrupt has obtained an absolute discharge he is still liable in conscience to pay any residue that remains of his debts, or whether he is free in conscience as he is in law. There can scarcely be a doubt that the civil authority can release a bankrupt from all future liability if it choose to do so. Especially in trading communities it may be for the public good that an honest but unfortunate trader should be able to begin again, without being weighted with a heavy load of past debts. If the law releases a bankrupt debtor from all future liability, the rate of interest will soon accommodate itself to the circumstance. So that it is merely a question of fact as to what is the effect of any particular bankruptcy law. In most countries, as in America, it seems that the law only grants the bankrupt legal exemption from future molestation on the part of his creditors; it does not free him from the moral obligation to pay his debts in full if ever he becomes able to do so.

In England, on the other hand, by an absolute discharge “the debt is extinguished,” “‘ the bankrupt becomes a clear man again,” in the words of lawyers who discuss the effect of English bankruptcy law. A composition or scheme of arrangement with one’s creditors has the same effect as an absolute discharge when it has been approved by the Court.