Causes Extinguishing or Suspending the Obligation of Restitution

515. What condonation is and when it excuses. That condonation frees from restitution to be made either at once or simply is manifest: for the creditor can renounce his right.

1. Not only express and tacit condonation, but also presumed condonation excuses from making restitution.

a. Express condonation has place when the creditor, asked either by the debtor himself or by another in his name, remits the debt. The confessor can especially undertake this office of asking condonation in the name of the penitent when the dying man cannot furnish the restitution to be made to a rich person, so that, once condonation has been received, the debtor may die more tranquilly.

b. The creditor is considered tacitly to condone the debt if, for example, he tears up the note of debt or restores it to the debtor; but he is not considered to condone the debt if he restores the pledge.

c. Presumed condonation is had when it can prudently be judged that the creditor, if asked either by the debtor himself or by another, for example, by the confessor in his name, would liberally remit the debt.

d. To condonation is also referred the agreement by which the creditor concedes to the debtor that by restitution of a small part he be freed from the whole debt. Namely creditors who detect the unstable fortune of debtors are not unwillingly driven to making some composition, by which they may receive at least part of the goods which are owed to them. By this composition the debts are considered extinguished; wherefore a debtor who afterward comes to better fortune is bound to nothing further.

2. In order that condonation excuse from restitution: a. it must be made by the owner himself of the thing taken away or destroyed; for he who does not have ownership has no right of giving. Hence condonation concerning family goods made by wife or children is not valid of itself, since they do not have ownership in those goods. b. It must be free: for it is a donation, and it belongs to the nature of donation that it be free. Therefore condonation extorted by force, fraud, or grave fear, or made from error, is invalid.

Condonation is not undeservedly presumed:

a. In thefts even of greater moment which have been made at home by children under family power if the things taken away no longer exist: for parents ordinarily are not so unwilling because of the thing taken away as because of the mode (secretly) of taking it away, and because of the sin committed by the taking away; therefore they rarely urge restitution. The same holds for thefts of wives.

b. In thefts of lesser moment which are perpetrated by servants in foodstuffs or in other things committed to their custody, unless they are carried outside the house or sold. If thefts, whether of money or of other things, occur in grave matter, condonation can be presumed when the servant, once the matter has been detected, is corrected by the master or dismissed from service without the master demanding restitution; otherwise it cannot easily be presumed.

c. In small thefts which are committed by workers concerning the things of the master with whom they work; thus workers laboring in forests, vineyards, or factories sometimes carry away something with themselves which the owner does not greatly care about, and therefore is supposed not to urge its restitution.

d. In small thefts of the poor which are made from diverse owners. If thefts have been made from the same owner, it must be demanded that the poor too, if it can be done, restore at least some part. Once this restitution has been made, if they conceive the intention of stealing no more, condonation can more easily be supposed as to the remaining part.

518. Declarations. Cession of goods is said to be that act by which a debtor who is unable to pay all debts hands over his goods to creditors so that from them the debts may be paid to them.

1. A twofold cession of goods is distinguished: one voluntary, by which a cession offered by the debtor is spontaneously accepted by creditors; another judicial, which is made with a judge intervening, and indeed in two ways: either the debtor himself spontaneously yields his goods before a judge, or at the action of one of the creditors he is compelled to yield his goods.

Voluntary cession has those effects about which the debtor and creditors agree. In judicial cession, when the matter has been brought to a judge in whatever way, a concourse is proclaimed, namely the creditors come together to the judge and prove their rights, so that from the goods of the debtor (sold or auctioned) they may receive payment.

2. Cession on the part of the debtor can be culpable or inculpable, according as the debtor has become unable to pay by his own fault or without fault from mere misfortune.

519. Principles. 1. The juridical order of cession of goods, from the common opinion of theologians, obliges in conscience insofar as it is not opposed to natural law.

2. Once cession of goods has been juridically declared, the debtor is deprived by law of administration and free disposition of his goods; but creditors acquire the right of receiving payment from those goods.

a. Therefore it is not permitted to him who has yielded his goods to withdraw his goods or credits, that is, those things which are owed to him by others, from his creditors. Indeed, not even before cession is it permitted to do this, because the debtor thus directly intends to make himself unable to satisfy creditors. Wherefore he acts unjustly who, either before or after an intimated cession, to that end sells his goods to his children or takes care that his credits are transferred to his wife, unless a just cause renders this manner of acting licit, as if the wife belonged to the creditors, or if those things which are transferred to the wife were necessary for support.

b. Hence if a debtor, after cession of goods has been made, makes donations or remits debts, those actions are invalid; likewise debtors of the cessor must pay debts not to the one yielding but to his creditors.

3. The debtor who yields his goods can, by natural right, secretly retain for himself those things which are necessary for the honorable support of himself and his own, if he lives sparingly according to his state:¹ for the obligation of restitution, at least to be made at once, ceases if it cannot be made without grave inconvenience; therefore he is not bound to cast himself into grave necessity, nor to fall from his justly acquired state, in order that he may be able to restore.

a. Therefore he sins against justice who, besides these necessary things, conceals, sells, or in another way withdraws other goods from creditors, for example, more precious things, unless there is question of a thing which those yielding value very highly, for example, on account of memory of parents, but which others do not hold at a great price.

b. He is not to be condemned of injustice who reserves for himself the means by which he can begin another business from small beginnings: for the beginning of some business also pertains to necessary support.

c. When a husband encumbered with debts has died, his heirs, namely wife and children, can secretly withdraw from the goods of the deceased, before creditors receive them, as much as they judge necessary for honorable support.

4. Cession of goods of itself does not extinguish the obligation of paying fully, but only suspends it until that time when the debtor comes to a better condition, unless the creditors have explicitly or implicitly declared that they condone the remaining part of the debt.

a. For the cause excusing from restitution in this case of cession of goods is impotence; but impotence does not excuse altogether, but only as long as it lasts; wherefore when impotence ceases, the obligation of restoring urges again.

b. Among recent laws some expressly establish that the obligation of afterward restoring remains, while others free him who has yielded his goods, in the external forum, from restitution to be made afterward. Hence it happened that theologians began to ask whether he who yielded his goods would also be freed in conscience from the burden of restitution. All indeed concede that he who by his own fault has become unable to pay debts is not freed from the obligation of restoring; but some declare him immune from this obligation who inculpably became unable, unless creditors add the express condition that the obligation of afterward paying remains. Now it can be conceded that the cessor is immune from the obligation where the common persuasion has prevailed that the obligation of restoring itself ceases if civil law, because of cession of goods, denies creditors a judicial action against the debtor: for according to this persuasion creditors are considered to accept the cession unless they expressly declare otherwise.

¹ C.A. in this matter, agreeing with Roman law, does not permit the debtor to retain anything from his goods; yet it cannot take away the right which nature grants to necessary support.

I. Remission or condonation made by the creditor, provided, of course, those things required for valid condonation are present (St. Alphonsus, III, 700, 1°).

Presumed remission for the future suffices, that is, that the creditor would remit it if he were asked, provided he would not do this on account of the petition alone, but on account of, or also on account of, a good affection toward the debtor. The reason is that, in the hypothesis posited, the owner, morally speaking, is now not unwilling with respect to the omission of restitution. If, however, he is unwilling with respect to the mode, that is, with respect to the omission of restitution without express pardon, you are not excused from venial sin (St. Alphonsus, III, 700, question 1).

I. Juridical delay of payment consists in this: once it has been pronounced and while it endures, the debtor cannot be forced to pay debts; yet some of these are usually excepted by law. Now juridical delay of payment, as is clear from the nature of the matter, does not excuse from payment to be made afterward, if it can be made; nor from the obligation of applying means, if there are any, by which the debtor may be made capable of paying the debts. For the rest, one must stand by the dispositions of the law and of the judge.

II. Voluntary cession of goods consists in this: that the debtor, with the creditors consenting, cedes his goods so that the debts may be paid from them. It does not transfer ownership of the goods to the creditors, but gives them the right of selling them. For the rest, note:

1. The obligations of him who has made cession of goods are usually determined by the agreement itself.

2. To judge whether or not cession of goods frees from payment of the residue, the agreement should be inspected, and that agreement as ordered by law, and usage. If, after these have been inspected, it is sufficiently evident that the debtor is not freed, neither can condonation be presumed. If law, agreement, or usage does not settle the matter, let it be seen whether condonation by all or some of the creditors can be presumed. If doubt persists, the obligation of paying persists, because in doubt the condition of the creditor is better.

III. Cession in court consists in this: that the goods of the debtor are juridically seized, so that they may finally come to the creditors. For the rest, note:

1. The obligations of him who has made cession in court are determined by the judge in conformity with law.

2. To judge whether or not one who has made cession in court is freed from the residual debt, again the agreement should be inspected, if any has been entered into, and that agreement as it has been ordered by law, and usage. If, after these have been considered, it is sufficiently clear that the debtor is not freed, neither can condonation be presumed. If law, agreement, or usage does not settle the cause, again let it be seen whether condonation by all or by some can be presumed. If doubt persists, the obligation of paying persists.

Corollary I. He who foresees that he will be unable to satisfy his creditors sins against justice by squandering goods, by neglecting means of improving the state of his fortune, and by contracting new debts without necessity.

Corollary II. Likewise he injures justice who by fraud or by other unjust means induces creditors to a composition, or to one more favorable than just.

Corollary III. He who has made cession in court is held to stand by the dispositions of the law and of those who apply the law; and this from commutative justice, because the law justly determines the rights of creditors. Hence, for example, he sins who reserves for himself part of his goods besides those which are granted by the judge. If, however, he justly judges that the law does not sufficiently provide for him, namely so that he and his own may be able to live sparingly, he can secretly retain something for himself, and to the judge interrogating him he can respond that he has concealed nothing, understanding: nothing which it is illicit to conceal; indeed it is also lawful to confirm the assertion with an oath. But here one must proceed cautiously, because those who make cession of goods or cession in court easily exaggerate their necessities; for this reason others should not easily concur with them in concealing goods. Finally note canon 122, which establishes concerning clerics: for clerics who are forced to satisfy creditors, those things necessary for their honorable support, according to the prudent judgment of the ecclesiastical judge, are to be preserved, while nevertheless their obligation of satisfying creditors as soon as possible remains firm.

The Causes That Excuse Temporarily from Restitution.—These causes can be reduced to two, namely, physical and moral impossibility. (a) Physical impossibility exists when the debtor has not the means to pay and cannot secure them; and it excuses as long as it continues. One who is bankrupt is excused from restitution during the continuance of his insolvency; if he later becomes able to pay, it seems to some that the civil declaration of bankruptcy according to the law of the country releases him from further payment, unless his bankruptcy was fraudulent or due to culpable neglect. (b) Moral impossibility exists when the debtor has the means, but cannot pay immediately without incurring a loss of a higher order (e.g., if he pays the small sum of money, he will lose his own excellent reputation), or without suffering a greater loss in his own goods of the same order (e.g., if he pays the money, he will be reduced to starvation), or without surely bringing on a far greater evil than delay of restitution to the creditor or a third party (e.g., if a stolen weapon is returned to its owner, he will commit suicide or murder).

The Causes That Excuse Permanently from Restitution.—These causes can also be reduced to two general ones, namely, the cessation of the object and the termination of the obligation through the act of the creditor, or of the debtor, or of authority.

(a) Thus, the cessation of the object releases from the duty of restitution whenever the object perishes to its owner, as when it is lost by a possessor in good faith who has not been enriched by it, or even by a possessor in bad faith, if it would have been lost equally by the owner (see 1771, 1774).

(b) The termination of obligation through the act of the creditor occurs when the creditor freely and lawfully excused the debtor from payment. In some cases condonation may ordinarily be presumed, either on account of the affection of the creditor for the debtor (e.g., in case of debts owed by children to their parents) or on account of the familiar relationship between the parties and the smallness of the debt (e.g., in case of appropriation by servants or employees of some unimportant articles not kept under lock and key), or on account of the indigence of the debtor and the smallness of the damage (e.g., in case of trifling harm to goods of a wealthy person, if there was no great malice and the debtor is very poor).

(c) The termination of obligation is also effected by equivalent payment, which in certain cases is made by payment of the creditor’s creditor, or the cancellation of an equal debt owed the debtor by the creditor, and perhaps also by a gift made the creditor by the debtor and equal in value to the debt. Occult compensation by the creditor is the secret taking by him of what he is entitled to when the debtor will not give it of his own accord. This is lawful when the debt is certain, other means of recovery impossible, and the compensation not injurious; but it covers restitution, and hence the creditor cannot accept another payment from the debtor.

(d) The termination of obligation is also effected by the act of competent authority. Thus, judicial declaration frees from the duty of restitution a person who has lawfully and in good faith received certain goods as damages or award; prescription (see 1875) gives a clear title to property held by adverse possession over a certain number of years, and it frees from the duty of payment, at least in certain cases (though not in the United States); papal composition for good reasons exempts from their obligation those who owe restitution to pious causes or to church property injured by them.

Condonation of the domestic thefts of wives and children of the family cannot be presumed in all cases (see 1903).

(a) Thus, if the things stolen are articles of food and drink (or tobacco), and were consumed by the members of the family, there is no duty of restitution, since the father or husband is then unwilling, not so much that these things should be taken, as that they should be taken furtively.

(b) If the things taken do not fall under the class of eatables and are still in the possession of the thief, they should be restored. Hence, if a son steals money from his father in order to have the means for debauchery, he must give back that money.

(c) If the things taken were not eatables, but were of great value and have been consumed or alienated, it will depend on circumstances whether restitution is obligatory or not. Thus, if the father thinks much of the son who took the money and the family does not miss it much, condonation may perhaps be taken for granted; but if the son is not on good terms with his father, or if the theft is very harmful to the family, restitution may be due.

Excuse from Restitution on Account of Doubtfulness of Obligation.—(a) One who doubts positively and in good faith whether or not he did damage to another is excused from restitution if the doubt is about the fact of the damage (e.g., whether his competitor lost business) or about his own culpability (e.g., whether he circulated a calumny about his competitor); he is probably held to restitution pro rata of the doubt, if the doubt is about the responsibility of his culpable act for the damage that followed (e.g., whether his calumny or the poorness of the competitor’s wares caused the falling off in business); he is probably held to only his share, if the doubt is whether his culpable act was responsible for the whole or only a part of the damage (e.g., whether his calumny caused all the damage, in view of the fact that others were also spreading calumnies).

(b) One who doubts positively and in good faith whether the restitution owed by him has been paid (e.g., whether his fellows in calumny have paid their portions of restitution, whether he has paid a bill for goods or services received) is held to full payment by some, to part (pro rata) payment by others, to nothing by others. Some moralists think the presumption favors the creditor, others that it favors the debtor, others that it favors neither and that a compromise is the right solution.

1. A steward, who repeatedly stole many things, and indeed notably, from a rich master, since he cannot restore without inconvenience, is admonished by the confessor to seek condonation from the master. But the steward, hoping that the wife of the master would be kinder, approaches her and generally asks that if he has consumed anything from the things of the master for his own utility, she would be willing to condone it; and she willingly assents.

Q. 1. What are the causes excusing from restitution? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1459 seqq. — To the 2nd. Since the Case is instituted concerning a steward who, although he suffers inconvenience in making restitution, is nevertheless not unable, the whole reason which will be able to excuse him from the burden of restitution must be drawn from the validity of the condonation. But for this condonation to be valid, it is required that the person who condones the debt be of her own right, and have the faculty of giving, since the condonation of a debt is a certain species of donation, and so that she be owner of the thing which she intends to give. It is required besides that the remission be altogether free and voluntary, i.e., not violent, not extorted by fear and fraud; because fraud and fear, and whatever can bring some violence, removes the character of the free and voluntary.

Now in truth the first condition is lacking in the Case, because the steward stole many things, and indeed notably, from the master; but he did not obtain condonation from the master, but from his wife, who, not having ownership over those goods, did not have the right of condoning. The second condition also is lacking, because, if he did not extort this condonation by fraud and deceit, he nevertheless obtained it, although in good faith, from error and ignorance. For he did not manifest the true debt, but used that manner of speaking which would seem to insinuate that he was rather asking remission of those things which he could inadvertently have consumed with his family, than asking remission in the way fearful stewards are accustomed to ask. But this very thing ought to have been shown by the facility of the wife in remitting, which seemed to insinuate that she wished to exempt him rather from a scruple than from a grave debt. Cas. Consc. Bonon. Dioec. tom. 3, p. 116, year 1770, month of July, Case 3; I. M. 1460.

2. Petrus, a merchant, when his affairs were going badly, sought from his very rich brother Paulus as a loan the sum of 50,000 lire. Paulus, who loved his brother very much, willingly gave it; indeed, he sought no legal interest from it. Petrus trades with that money, and in the space of ten years recovers his whole patrimony. But Paulus, rejoicing over the prosperous affairs of his brother, never sought from him restitution of the money lent. Petrus dies first, and after a year Paulus dies. The son of Paulus, universal heir, then seeks from the sons of Petrus restitution of the said money; and, when he could obtain nothing, he has recourse to occult compensation.

Q. 1. What are the rights and obligations of heirs? — 2. What is occult compensation, and is it lawful? What is its distinction from legal compensation? — 3. What as to the Case?

R. To the 1st. As regards the rights of heirs, heirs succeed into the same rights of the testators. For they represent the person of the testator. But as regards obligations, as often as the testament was perfect and just, and not invalidated, the will of the deceased is most religiously to be guarded. That is to say, the wills of testators are like laws, from which it is lawful for the Prince alone to derogate for a just and necessary cause. Hence the heir is altogether held to fulfill legacies, whether pious or profane. Just; what if the work which the testator wished to be done is illicit? And if it is substantially illicit, e.g., for sustaining a Masonic sect, it will be as not written. But if it is illicit accidentally, e.g., for spectacles or public games which are prohibited in that city, it is unjust that this yield to the profit of the heirs, and therefore it must be converted to another work. — What if the will of the testator is irrational and useless? As an irrational and useless law is not to be observed, so also the irrational and useless will of the testator is not to be observed, e.g., if he ordered that he be buried in the most precious garments which he left. — Heirs are besides held to pay the debts of the deceased, namely those which really affect the inheritance accepted; and if there are several heirs, each one is held for that part by which he is heir, unless perhaps the testator, the legitimate portion of each being saved, ordered otherwise. Whence, if one afterward becomes unable to pay, the others are not burdened. But if the thing owed was some indivisible thing, say a watch, or if the obligation is hypothecary or solidary, then for these indeed he is held to the creditor who possesses the thing or things obligated as pledge, or whom the creditor chooses; but if he pays more than his own part, he reclaims from the co-heirs, and if one is not solvent, this yields to the damage of all. — D’Annib. p. 2. n. 348, 365, 396; I. M. 972, 978, 1052.

To the 2nd. Occult compensation is that by which a creditor, in order to recover that which is owed to him, subtracts something from his debtor, or does not return what he himself owes to him. No one doubts that it is lawful, provided that 1. it be done with justice preserved, and so it is necessary that something truly already be owed, and that this debt be altogether certain. 2. That it be done without anyone’s damage and injury, and so it must be done in the proper thing of the debtor, and one not liable to the right of another, and of the same kind, unless perhaps it cannot conveniently be done in a thing of this sort. For just as it is not lawful for the debtor to pay one thing for another, so also it is not lawful for the creditor to extort one thing for another. 3. That it be done from a just cause, namely if the creditor either cannot vindicate his thing in any way, or not except with grave inconvenience. But this, speaking per se, is slight, because only legal justice is inverted. — D’Annib. p. 2. n. 255; I. M. 1471 seqq.

Occult compensation is distinguished from legal compensation, which is the contribution of debt and credit with each other by the very power of law; and therefore by the law itself it removes or diminishes the debt, even if the creditor is unaware or unwilling, unless someone previously renounced compensation. But since this compensation is from the power of law, it has place only when the conditions of law have been verified. These are: 1. that each debt be of those things of which one can function in place of the other; 2. that each debt can equally be demanded; 3. that each debt is equally liquid, or can be liquidated immediately. — But compensation cannot be objected against one reclaiming a thing taken away from him by injury, or loaned for use, or deposited, or owed because of support, not liable to sequestration. — D’Annib. p. 2. n. 323; I. M. 966, 1471.

R. To the 3rd. The sons of Petrus seem to be held to nothing, and so the son of Paulus has recourse unjustly to occult compensation. For since the creditor, in the Case, was most closely joined by blood to the debtor, as a brother; since he first willingly gave the sum of money to his dearest brother placed in necessity, and sought no legal interest from it; nor did he ever desire it through very many years, even after the death of Petrus; and since, when Petrus had now recovered his own patrimony, when the occasion was very favorable for seeking back the money, Paulus expressed not a desire for his money, but only joy over the prosperity of his brother; it is altogether reasonably presumed either that Paulus in truth did not give that sum of money to Petrus as a loan, but simply gave it, or at least it is presumed that he remitted it. This is confirmed from L. Procula 26. de Probation. et Praesumption.: “Procula wished after the death of her brother to compensate, in an account with the heirs, a fideicommissum of a large quantity owed to her by her brother; but on the other side it was alleged that this had never been desired from the brother while he lived, since from various causes the account of Procula had often paid monies into the account of the brother. The Divine Commodus, when he took cognizance concerning that business, did not admit the compensation, as if the fideicommissum had tacitly been remitted to the brother.” — I. M. 1460.

3. Arnaldus several times and in vain sought from Marianus ten gold coins owed to him. Meanwhile the daughter of Arnaldus is received into the house of Marianus, that she may serve; and she, knowing the matter, approaches the confessor, asking whether she can satisfy the credit of her father by occult compensation from the goods of Marianus. The confessor responds that she can. — Does he respond rightly?

R. He would indeed have responded more rightly that she cannot. For the Doctors, permitting occult compensation, commonly speak of the creditor himself, not of another inserting himself into it. For the matter is full of danger, since the conditions for compensation are various, and the reasons of them depend very much upon the conscience of another. Casus Consc. Bonon. Dioec. tom. 4, p. 91, year 1779, month of December; I. M. 1473. But since there is question of the very daughter of Arnaldus, and of a case not very involved, as it is proposed, if the debt is truly certain, and its payment cannot otherwise be obtained, after the fact the confessor and the daughter of Arnaldus do not seem to be disturbed. For she did not usurp another’s thing, but that which will be proper to her father, which must be rendered to the father at once, lest perhaps the father himself compensate himself again. I. M. 1472, 1473.

4. Lucas, a servant, from mere inadvertence, and notwithstanding his habitual diligence, broke a precious crystal vessel. The master, knowing the matter, subtracted the stipend of the whole year from him. Lucas, able to effect nothing so that he might recover the stipend, compensates himself secretly. — By right?

R. Lucas does not seem to be disturbed. For on account of the broken crystal vessel he is held to nothing; and so he can compensate himself secretly, since he cannot do this in any other way. He is indeed not held to repairing that damage either from the sentence of a judge, or from the obligation of conscience. For the former was not present, and the latter is not present, all theological fault being lacking. I. M. 1358, 1472, 1473; G. 575.

How does the obligation of contracts cease? - The obligation of contracts ceases:

1. Through payment, or through the furnishing of any thing owed, or also through the execution of the object promised or otherwise owed. C. I. 1236 ff.; C. G. 1134 ff.; C. H. 1157 ff.; C. B. 362 ff., 372 ff. Payment is to be made by him who can alienate. C. I. 1240; C. G. 1238; and from C. A. 1421, although he is incapable of administering his own things. If there are several debts, the debtor can impute the payment to whichever he wishes. C. I. 1255 ff.; C. G. 1253 ff.; C. A. 1415 ff. - Cf. Vinnius on Inst. 1. 3. t. 30. nn. 1, 4. - But payment does not hold if the creditor is incapable of receiving, unless it is proved that the payment made yielded to his utility. C. I. 1143; C. H. 1163; C. G. 1241; C. A. 2414. But if the creditor unjustly refuses to receive payment, the debtor is freed by making a deposit of the thing owed in the modes prescribed by law. C. I. 1259 ff. "Nor does it matter who pays, whether he himself who owes, or another for him; for he is freed even when another pays, whether the payment is made with the debtor knowing, or ignorant, or unwilling." Inst. 1. 3. t. 30; C. I. 1238; C. G. 1236.

C. B. 244, 267, 268; C. A. 1423.

2. Through novation, or a new obligation, which is not presumed, but must be expressly established. It has place in three ways: 1. Through substitution of a new debt for an old debt, which is thus extinguished; for example, I promised to give you ten casks of wine each year; now I agree with you that I am no longer bound to give wine, but a thousand francs: the obligation of giving wine is then extinguished. Likewise, money is owed from purchase; it is agreed that it be retained as though from a loan for consumption. The effect of novation of this kind is that, once the prior obligation has been removed, its inconveniences also are taken away, and the advantages of the later obligation are received. 2. When a new debtor is substituted for the old, who is therefore freed by the creditor; namely if the debtor substitutes another debtor for himself, whom his creditor accepts, or if another freely promises that he will pay in place of the debtor. 3. When a new creditor is substituted for the old, toward whom the debtor no longer has any obligation. C. I. 1267 ff.; C. G. 1271 ff.; C. H. 1203 ff.; C. B. 364, 398 ff.; C. A. 1345, 1375 ff.; L. 1 Dig. de Novationibus; Inst. 1. 3. t. 30. § 3; Vinn. in this place.

3. Through condonation, or an act by which a creditor from full liberty remits a debt to his debtor. For each one can yield his own right in all those things which do not regard the public good, provided he was not incapable of contracting. It is had by presumption of law if the creditor has returned the security to his debtor, or ordered it to be returned; but by no means if the creditor has returned the pledge, or freed the surety. An acceptilation is called a condonation of this sort, because through it the creditor has as though accepted that which is owed to him. Hence it is said in Law that acceptilation is an imaginary payment. "But just as what is owed is rightly paid in part, so acceptilation can be made in part of the debt." Inst. 1. 3. t. 30. § 1. - C. I. 1279 ff.; C. G. 1282 ff.; C. H. 1187 ff.; C. B. 397.

4. Through compensation, or fictive and reciprocal payment, which has place by the law itself when persons are mutually debtors toward one another. C. I. 1285 ff.; C. G. 1289 ff.; C. H. 1195 ff.; C. A. 1433 ff. - From C. B. 388, a declaration of one party to the other party is needed. - This legal compensation is not had between that which is owed only naturally and that which is also owed civilly; likewise this compensation is not had as to those things which are subject to rescission or restitution in full. Cf. 1471.

5. Through confusion, which has place when the obligation of the debtor and the right of the creditor are joined together in the same person; for example, if the creditor becomes the heir of his debtor, or the debtor of his creditor, or the same person becomes heir of the creditor and debtor at the same time. C. I. 1296 ff.; C. G. 1300 ff.; C. H. 1192 ff.; C. A. 1445; L. Sicut acceptatio Dig. de Solutionibus etc. Cf. C. B. 889.

6. Through destruction or loss of the certain and determined thing owed, which at times frees the debtor from obligation, as in merely gratuitous contracts, and also in others where the fault of the debtor does not enter. But at times it does not free him, for example if it happened by fraud of the debtor, or he was in culpable delay, or he took the case upon himself. Certain and determined, for example such a horse; but something else must be said if the thing was uncertain and indeterminate; for genus and species do not perish. Therefore, if you promised a horse in general, not such a horse, not one of your horses, the obligation remains, even if all your horses perish; hence you must buy and hand over another. C. I. 1298 ff.; C. G. 1302 ff.; C. H. 1182 ff.; C. B. 275, 280; L. Si ex legati Dig. de Verbor. obligat.

7. Through rescission, or rescindability, which has place when a contract, consisting of essential conditions, is dissoluble because of some defects. That contract holds until it is rescinded. C. I. 1300 ff.; C. G. 1304 ff.; C. H. 1290 ff.; C. B. 346 ff.

8. Through prescription, concerning which it has been spoken above. C. I. 1236; C. G. 1234; C. H. 1930.

9. Through contrary will. For "those obligations which are contracted by consent are dissolved by contrary will. For, if Titius and Seius have agreed between themselves that Seius would have the Tusculan estate bought for one hundred gold pieces; then, the matter not yet having followed, that is, neither the price having been paid nor the estate having been handed over, it has pleased them that they withdraw from that purchase and sale, they are mutually freed." Inst. 1. 3. t. 30. § 4. Cf. n. 964.

716. • II. The following excuse in perpetuity: 1. remission, or condonation of the debt on the part of the creditor; but it is required that the creditor be able to condone, and that he have dominion and administration of the thing owed to him; likewise that the remission not be made by force or fraud, but altogether freely and spontaneously; 2. compensation, that is, when the creditor by his own authority vindicates an equivalent for himself, or retains the same debt for himself; 3. prescription clothed with the due conditions. But prescription for debts is not regularly completed except through thirty years; nor commonly can it have place as regards the debtor himself who contracted the debt, because good faith cannot be found in him. - St. Lig., n. 700, etc. Recall what was said concerning prescription, n. 580 and following.

719. • Q. 5. Whether cession of goods, whether judicial or voluntary, excuses from restitution in perpetuity?

Resp. 1. Altogether negatively as regards judicial cession, because that cession is a mere benefit which the law grants to a debtor of good faith and unfortunate, so that, ceding his goods, he may preserve liberty and become immune from compulsion in the external forum. This is clear from the express terms of both Roman and French Law.

Resp. 2. Indeed negatively also as regards voluntary cession, apart from an agreement either express or at least implicit. The reason is that, although the creditors then compound with the debtor concerning only a certain part to be paid, nevertheless they act thus because they cannot have more, and therefore they do not renounce the right which they have to integral payment, if the debtor should at some time be able to pay. - St. Lig., n. 669. - Billuart, diss. 8, art. 20.

I said, apart from an agreement; because if the creditors expressly liberate, or clearly seem to liberate, the debtor totally, he is held to nothing further.

600. 1. Principles. (A) Physical or absolute impossibility, - which consists in this, that the debtor has nothing from which he may restore without reducing himself to extreme necessity, - certainly excuses from restitution as long as it lasts; for no one is held to the impossible, and in a case of extreme necessity, each one can secretly take, and a fortiori keep, those things which are necessary for relieving this necessity; the owner, in this case, would not reasonably oppose the delay of restitution.

(B) Moral impossibility, - namely when someone cannot restore without grave damage either to himself or to his family, - excuses from restitution as long as it lasts, unless from the delay the owner suffers similar necessity. - For the law does not oblige with so great an inconvenience; moreover the owner is not reasonably unwilling when he wishes restitution to be made immediately which would bring so great a damage to the neighbor. - Yet, if both the owner and debtor are situated in the same grave necessity, the condition of the owner ought to be better, since he has a right to the use of the thing, while the debtor does not have such a right. - 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.

340. The causes definitively exempting from the obligation of restoring are:

1. The destruction of the thing owed in species without fault of the debtor of good faith, or, for a debtor of bad faith, if the thing would have perished at the same time from a natural cause with the owner: it exempts, namely, from restitution of the thing.

2. Condonation (total or partial) or remission of the debt made by the creditor, whether express, or implicit or tacit (for example, by deleting the chirograph), or legitimately presumed on account of a positive and solid foundation, as can exist for thefts of sons and sometimes for little thefts of servants, which can be conjectured from the love and liberality of the father or owner, the quantity and quality of the thing, and other circumstances (a. 1282-84).

Moreover, for legitimate condonation three conditions are required: a) that it be perfectly free, immune from error, fraud, fear, or force; whence it does not hold if it has been extorted by threat, or if the creditor errs, or is deceived concerning the quantity of the debt which he thinks much smaller, or the debtor feigns poverty; b) that it be made by him who has power, namely, who has actual dominion of the things and free administration, whence invalid is a condonation made by a wife concerning the goods of the husband or of the community; c) that the law not obstruct.

3. Compensation (a. 1289 sq.), by which a certain debt of justice is extinguished equally on each side, whether it has been made to the debtor himself if the creditor owes him as much, or made to the creditor through an equivalent donation, or made to the creditor's creditor, as if Paul owes 100 fr. to Peter, and John 100 to Paul, but Peter asks payment from John.

Yet this cannot be done except from a reasonable cause, if the creditor cannot obtain payment otherwise, or only with difficulty; because a personal right is injured and the order of law which the law orders to be observed is interrupted (a. 1239), which will not be licit except on account of a proportionate cause.

4. The legitimate authority of a superior, whether a) through prescription; or b) through the sentence of a judge, provided it has been obtained in good faith and without unjust means, in the case of juridical fault or doubtful matter: thus it happens that someone can retain what perhaps he owed, or another on account of juridical fault is bound to pay him; or c) through composition of the Supreme Pontiff, by which, with a just reason, the restitution to be made for ecclesiastical goods taken away, or for debts toward unknown persons, is partially or totally remitted: for the Supreme Pontiff is the natural administrator of ecclesiastical goods, indeed also of pious causes; but the part which is remitted can be supplied to the creditor in spiritual utility from the treasury of the Church.

But if afterward the owner appears, probably the debtor can judge himself liberated from every obligation.

341. Does not a cession of goods exempt from the obligation of paying debts integrally? - Resp.:

1. Cession of goods per se does not take away such an obligation but only excuses for a time, on account of the debtor's inability to pay all debts.

2. Whence, if someone culpably or fraudulently has become unable to pay, or makes a cession from bad faith, he is not exempted from the obligation of restoring the whole, because since he is an unjust damager, the creditors are not judged to condone, nor would the law establish this equally.

3. In the case in which someone from mere misfortune has become unequal to paying debts, a) if in the very contract of cession the creditors explicitly declare that the debtor either will be free or will remain obligated, that contract is to be observed. b) Likewise the law is to be observed, if it itself declares the obligation to remain, as happens in Belgian law (29 June 1887, a. 25; C. C., a. 1270; C. Com., a. 586) for compositions which merchants unequal to paying enter upon with creditors for preventing bankruptcy. c) But with the express disposition of creditors or of law excluded, the obligation of paying the remaining things is not extinguished but only suspended.

Nevertheless if somewhere a contrary persuasion commonly prevails, this can be admitted or tolerated: it is reported to be so in England, where businessmen are accustomed to receive a greater price on account of danger to capital from the foresight of such a loss, and therefore they more easily consent to it. But in many regions it is not so.

342. Observation. - He who enters religion is not on that account exempted from the obligation of restoring, nor yet does the religion contract that obligation, but he himself must restore as far as he can from goods if he has any, and afterward, with the consent of the superior, work and do other things fitting to his state, so that he can complete payment.

But by positive ecclesiastical law such a one is prohibited under grave obligation to enter (can. 542). But considering natural law alone:

a) if within a short time, for example, two years, he can satisfy the obligation of restoring at least for a great part, he is bound to defer entrance until restitution has been made;

b) but if there is no founded hope that he can restore within a short time, with a cession of goods having been made to the creditors, he can enter, especially if from a long delay a special danger of salvation threatens him: for because of money the person of a free man cannot be obligated, but only his thing (q. 189, a. 6, ad 3).

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.

The general rule on which all causes excusing from restitution to be made at once or absolutely are founded is this: « Whenever the owner ought reasonably to consent that restitution be deferred or omitted, it may be deferred or omitted, even though in fact he be unwilling; » because the detention of another's property is not unjust unless the owner is unreasonably unwilling.

From this general principle, known by the light of nature, the following causes are assigned which excuse from restitution made at once or absolutely.

First cause. Inability.

There is the inability of the debtor, whether physical, as if he has nothing at all with which to restitute (for no one is bound to the impossible); or moral, that is, great difficulty in restituting. For in moral matters that is called impossible which is very difficult and cannot be done decently and honorably; namely because then the creditor would unreasonably wish restitution to be made to him.

This cause, however, excuses from restitution as long as it lasts, so that the obligation is as it were lulled to sleep while the inability lasts, and revives when it ceases.

Furthermore, moral inability, or great difficulty in restituting, extends very widely. Hence

First. There is moral inability, speaking of itself and regularly, when one cannot restitute without grave detriment to the goods of the higher order: such are the goods of the soul, of the body, and of reputation or honor, compared with the lower goods.

The reason is that the owner would demand this unreasonably, since it is against the order of charity, nor would he wish himself to be so treated. Moreover, equality would not be preserved, since the debtor would suffer far greater detriment than is the detriment of the creditor.

I said, « of itself and regularly speaking; » because it can happen that the good of the higher order is so diminished and the good of the lower order so increased that, according to the prudent judgment of men, the latter is worth more than the former with respect to civil life. Thus many gold coins are esteemed more, by human judgment, than a slight illness, or the reputation of a most lowly person. And then restitution of the good of the lower order must be made even at the expense of the good of the higher order; otherwise the creditor would be unreasonably unwilling.

Secondly. There is moral inability to restitute not only in extreme but also in grave necessity of the debtor or of his own people; because the owner would act unreasonably who wished restitution made to him in such a case.

But there is difficulty whether, if the creditor is in equal necessity, the debtor is then held to restitute.

I answer: If extreme necessity is in question, the debtor is not held to restitute, unless by the very taking away of the other's property he cast the creditor into this extreme necessity; because in extreme necessity all things are common. Thus one who is placed in it possesses what he possesses as necessary for him as his own, and not as another's, and consequently is not held to give it up.

[Make an exception when the owner is cast into extreme necessity precisely because of the subtraction of the thing taken; for to take from someone a thing necessary for the preservation of life is the same as killing him. Therefore, in this case, the condition of the owner who first possessed must be judged the better. ⁴⁴⁰] ⁴⁴⁰ S. Lig., lib. IV, n. 701.

If, however, only grave necessity is in question, the debtor is held to restitute; because only in extreme necessity, not in grave necessity, are all things common. Hence then the condition of the creditor is better than that of the debtor. Natural equity also demands that, if anyone must suffer damage from the absence of the thing, that damage rather be borne by the one to whom the thing does not belong than by the one whose it is.

[It can happen that, both being in grave necessity, the restitution casts the debtor into extreme necessity. It is commonly held that restitution can then be deferred, if the restitution is owed for a just cause. But if the obligation arose from delict, it is probable that even then restitution need not be pressed; because the owner is bound by charity to consent to delay. The case is excepted, however, in which the thing still exists in its species and individually; because by giving back the thing, the thief is simply placed in the same state in which he was before the theft, and then it cannot be said that extreme necessity arises from the restitution.]

Thirdly. There is moral inability to restitute when the restitution cannot be made without the debtor falling from a legitimately acquired state; because then there is grave necessity, and moreover such a change cannot come about without grave disgrace to the debtor and his family.

[If, however, the debtor has fallen into such straits through his own fault, he must impute to himself that he can now no longer make satisfaction without losing his state; and if an equal loss threatens the creditor from the delay, since his condition is the better, the debtor ought to bear it. ⁴⁴¹] ⁴⁴¹ Id., ibid., n. 698.

Fourthly. There is moral inability to restitute when, by restituting, the debtor would suffer damage far greater in goods of the same order than the creditor suffers from the lack of his property or of his debt: as if, to pay a money debt, he were forced to sell a house or estate for far less than it is worth; or, as I said above, if to send back the thing he would have to incur expenses far greater than the thing itself is worth.

Second cause. Cession of goods.

The second cause suspending restitution is the cession of goods, or, as others call it, cessio fori, namely when the debtor, unable to pay all his debts, gives up to the creditors what goods remain to him.

Now the privilege of this cession, if it was made without malice, deceit, fraud, etc., but solely through adverse fortune by which the debtor became unable to pay, avails only in the external forum, so that the debtor can no longer be summoned before a judge for his debts, nor be handed over to prison, and if he has been handed over he must be released. But if after the cession he has acquired some modest amount necessary for the decency of his state, he cannot again be sued by his earlier creditors so that these few goods may be sold; otherwise if he has acquired much.

L. Is qui. L. Qui bonis. L. Si debitoris, ff. de Cess. bon., lib. 42.

As regards the forum of conscience, however, a cession of this kind no more excuses from restitution than necessity without cession would excuse it. Hence, if the debtor who ceded his goods later returns to better fortune, he is held to pay what he owes, even if perhaps he settled with them; because ordinarily creditors settle thus unwillingly, from the fact that they cannot now have more, and therefore they are not understood to yield their right to the remainder, should the debtor ever be able to pay.

[Since this case occurs most frequently today, it must be explained more fully.

Cession of goods is either 1° voluntary, that is, freely accepted by all the creditors — and then it has those effects on which the debtor and the creditors agree; or 2° judicial, declared by the sentence of a legitimate judge. This latter kind is a certain benefit granted by the law itself to the unfortunate debtor of good faith, so that, notwithstanding any other stipulation to the contrary, he may be delivered from the molestations of his creditors. ^{442 442} Cod. Gall., art. 1268; Ital., art. 2090; lex Austriacae 25 dec. 1868; lex Boruss. 10 febr. 1877.

Under modern law: 1° Insolvency, that is, the state of a debtor unable to pay integrally, from which the cession follows, is either culpable or blameless. In the former case, if the insolvent person carries on some commerce, the matter is handled before the commercial tribunal where one exists, and it is called in French faillite; otherwise it is called déconfiture, and the matter is handled before the ordinary tribunal. In the latter case, insolvency is adjudged either as a delict, banqueroute simple, or as a crime, banqueroute frauduleuse, and is punished by the correctional or criminal tribunal with proportionate penalties.

Furthermore, by a cession of goods effected without fraud the obligation to restitute is indeed suspended, but not taken away. 1° It is suspended, both in the internal forum, on account of inability, and in the external forum, by concession of the creditors or by benefit of the law. 2° It is not taken away; because, unless it be elsewhere established otherwise, neither the law ⁴⁴³ nor the creditors intend to remit to the debtor what has not yet been paid. Hence, if better fortune later comes to the debtor, he is held to pay the remainder of the debt ⁴⁴⁴; indeed he ought, as far as he can, to labor so that he may be able to satisfy the payment integrally. ⁴⁴³ Cod. civ. Gall., art. 1270; Cod. Comm. Ital., art. 548; lex Austriaca anni 1868, § 5. ⁴⁴⁴ S. Lig., lib. IV, n. 699; Homo apost., X., 117.

It must be noted that this obligation can be extinguished by prescription, like the others, through thirty years, if the creditors have neglected during this lapse of time to demand payment. Indeed it could be extinguished in a shorter time, by the common interpretation of the law which, in view of the public good, can transfer dominion, just as legal prescription does; which is asserted, not improbably, to be admitted in England ⁴⁴⁵ and in North America ⁴⁴⁶. ⁴⁴⁵ Grolly, n. 1201. ⁴⁴⁶ Konings, n. 861.

By the cession of goods the right of the debtor to suitable support for himself and his household is not destroyed. For he is not in a worse condition than the other debtors, for whom the need of their family is a just cause for deferring restitution. ⁴⁴⁷] ⁴⁴⁷ Marc, Instit. moral. Alphons., n. 1021-1023.

[Three causes are counted which take away the obligation of restitution altogether: namely, legitimate compensation, remission by the creditor, and public authority.

First cause. Legitimate compensation.

Compensation is twofold: legal and extra-legal. The former takes place when two persons who are debtors to each other each set off against payment the thing owed to the other. Thus, for example, I owe you one hundred for wheat, and you owe me one hundred for wine: both debts are extinguished by compensation. This compensation, which is manifestly licit, is called legal, because it is confirmed by law. ⁴⁴⁸ The latter takes place secretly, outside the conditions established by law, and is the recovery of one's own property through occupation of another's property. Of this alone we have to treat. ⁴⁴⁸ Cod. Gall., art. 1289; Ital., art. 1285.

I say: Secret compensation can sometimes be just and licit, if it lacks none of the required conditions.

It is proved, because, these conditions being posited, no injury is done to the debtor, nor does any disturbance of the order established by law follow, nor is any damage inflicted on the state. 1° No injury is done to the debtor; for it is supposed that you take only what is certainly yours, or what is owed to you by strict justice. — 2° No disturbance of the order established by law follows, since it is supposed either that the judge cannot be approached, at least without notable inconvenience, or that he cannot restore the right of the injured party, because juridical proofs are lacking. For what would be sought in vain is rightly said to be passed over. — 3° No damage is inflicted on the state; for it is sufficiently provided for by the safeguards which are enumerated among the required conditions. ^{449 449} Gury, n. 621 ; S. Lig., lib. IV, n. 521.

Furthermore, the required conditions are: 1° That the debt be certain, at least morally; « for in doubt the condition of the possessor is better. » If the doubt concerns only the manner of compensation, and no more is taken than is owed, the compensation is not unjust — indeed not even illicit, if it proceeds from a truly probable reason. 2° That the debt cannot otherwise be recovered, at least without grave inconvenience; for if the common ways were open, grave injury would be inflicted on the debtor and on the public order. 3° That the compensation be made in the same species, as far as possible. Otherwise the debtor's property would be unjustly exchanged while he was unreasonably unwilling. 4° That it not be made to the damage of the debtor, that is, taking care that he do not pay twice, should he happen to be going to restitute. ^{450 450} Gury, n. 622 ; S. Lig., Homo apost., X, 21.

You will ask 1° whether he who, forgetful of his debt, gave something gratuitously to the creditor has satisfied the obligation of restituting.

I answer. Although many deny it, we judge it must be affirmed as probable: « It is always, and certainly, presumed that the debtor, had he been mindful of his debt, would never have given it. The reason is that everyone, when giving his goods, is always understood to wish rather to satisfy an obligation of justice than his own will to give, or the obligation of a donation once made; which, since it was made through error or through oblivion of the debt — which error was the cause of the donation — remains rescindable by the same donor, who in conscience is not held to fulfill it ⁴⁵¹ » And this seems beyond doubt, if, the debt having first been paid in justice, the donation made had been notably burdensome; for few would wish to burden themselves so. ⁴⁵¹ S. Lig., Homo apost., X, 120 ; lib. IV, n. 700.

You will ask 2° whether servants, who consider their salary insufficient, may make use of secret compensation.

I answer: In the negative, generally speaking. It is certain 1° from the condemnation of the following proposition, n. 37, by Innocent XI: « Male and female domestic servants can steal secretly from their masters, to compensate their labor, which they judge greater than the salary they receive. » This proposition was reproved on account of its generality. 2° From reason. One must stand by the pacts and agreements entered into in good faith on both sides. Therefore servants can attribute to themselves nothing beyond the stipulated salary; or, if they were deceived by error or fraud, they may rescind the contract. 3° From the inconveniences. If such compensation were held licit in itself, the way would lie open to innumerable thefts; for servants could most easily persuade themselves that their wages are less than just, and thus no security would remain to masters. — Say the same of day laborers hired for a time and of all artisans or merchants. ^{452 452} Gury, n. 623.

I said, « generally speaking », because, if the servant has been deceived, if extraordinary and undue labors were imposed upon him, and the master denies him every corresponding recompense, it will be lawful for him to compensate himself, taking care not to exceed the just limits. ⁴⁵³ And this does not contradict the condemnation of the proposition related above, for it is evident that the Pontiff did not intend to bind the servant against justice. ⁴⁵⁴ But if the servant of his own accord increases the labors owed, he can steal nothing in compensation; because then he is understood to bestow his labor gratuitously, to win the favor of his master. ⁴⁵³ S. Lig., lib. IV, n. 522. ⁴⁵⁴ Id., ibid., n. 323.

The Laws permit Cession of goods, so that in the external forum the debtor may be safe L. Qui bonis, ff. de cessione bonorum, and Cod. de iis, qui bonis cesserunt; yet this cession in the forum of conscience does not free him, except insofar as it excuses his poverty, otherwise it would free him even without such cession, as Navar. notes, cap. 17. num. 86. Medina quaest. 3. cap. 3. Sotus lib. 4. d. Iust. quaest. 7. art. 4. Couar. Lib. 2. variarum, cap. 1. Valentia quaest. 6. puncto 7. Tanner. num. 441. disp 4. quaest. 6. Bassaeus V. Restit. 5. num. 5.

He will still be bound to restore if he comes to better fortune, as the same Doctors teach, and as is had in Leg. 1. and Leg. cum et filii, and Leg. is, qui bonis. Cod. de his, qui bonis, locis citatis. Which Couar. also shows to be true, when that cession of goods is made with some ceremony of ignominy.

Yet Caspensis observes, disp. 1. sect. 13. with Toletus Lib. 1. cap. 16. that a debtor in cession of goods may retain and conceal what is necessary for his own sustenance, that of his wife, children, and others in the first degree; nor are those who know it bound to reveal it, even if a penalty is imposed on one who does not reveal; they may even swear that they do not know where such goods are, understanding within themselves, insofar as they are bound to reveal it; but Petrus Navar. Lib. 4. cap. 4. num. 50. says this is true of one who is compelled without fault to cede his goods; Tannerus subscribes, num. 441.

The first among the causes is judged to be free remission, made by the Creditor, which must be made neither by force nor by fraud, as Caiet. distinguishes, here, art. 6. and in sum. v. Restitutio, cap. 6. Ioan. Medina quaest. 3. de rebus restit. cap. 2. Navar. in man. cap. 17. num. 73. Valentia disp. 5. quaest. 6. pun. 6. puncto 7. Caspensis disp. 1. num. 163. Graffius Lib. 2. decis. cap. 131. Sylvest. V. Iudex, 1. quaest. 8. Turtecremata in cap. si res 14. quaest. 6. Fagundez Lib. 7. cap. 30. Tanner. disp. 4. quaest. 6. dub. 15. num. 438. who add that care must be taken lest the remission be impeded by law and invalidated; for it can be invalidated for the common good, rendering the debtor unfit for such a benefit of remission, and in fact Canon Law invalidated it, cap. statum, de rescripc. in 6. when an Ecclesiastical Judge receives something beyond victuals; for in that chapter he is bound to restitution, and there the remission of that obligation is invalidated; Likewise if a Bishop, or Archbishop, visiting the Churches, receive anything beyond what is necessary for food, according to cap. 5. and 6. de censibus, and extract. in 6. Si iudex delegatus let him receive anything from the parties against cap. statutum, de rescripc. in 6.

The second cause is spiritual or bodily harm, which the creditor would incur if restitution were made at such a time, or in such a place, as D. Thom. teaches, art. 5. ad primum, and commonly. Hence a sword is not to be returned to a madman, lest he kill with it; nor money, which he might spend to the ruin of the Republic, or of others. Ambrose also taught this, Lib. de officiis, last chapter, and many others as gathered by Fagundez Lib. 7. capite 30. num. 32. Bassaeum V. Restitut. §. 1.

But they ask: Whether the debtor is excused from Restitution, if the creditor is an excommunicatus vitandus.

It is answered negatively, with the Maior 4. dist. 15. quaest. 4. Sylvestre V. Excommunicatio, 5. quaest. 12. Ioan. Medina quaest. 3. de rebus restit. cap. 9. Couar. in regula Peccatum, part. 1. num. 10. Valenria quaest. 6. puncto 7. Lessius Lib. 2. cap. 16. dub. 9. Tolet. Lib. 4. de restit. cap. 4. disp. 15. num. 24. Suarez de censuris, disp. 15. sect. 8. Maldet. tract 4. cap. 7. dub. 6. Fagundez L. 7. cap. 30. num. 29. Tanner. 445. and others commonly, against Panormitanus cap. veritatis, de dolo.

It is proved, because in the sentence of excommunication he is not held to be deprived of his right concerning his own goods, nor is necessary communication prohibited, as all confess.

You will say: cap. Nos sanctorum; and cap. Iuratos, 16. quaest. 5. and cap. ult. de Haeret. subjects are absolved from the oath of fidelity owed to a lord who afterwards fell into excommunication.

It is answered: not on that account is he deprived of the right to his goods, nor are the odia to be extended, but restricted.