Causes Which Excuse from Making Restitution

514. Declarations. The causes excusing from restitution are numbered chiefly as four: a. condonation of the creditor; b. impotence of the debtor; c. cession of goods; d. composition.

1. Some of these causes excuse altogether (condonation and composition), because they take away the obligation of restoring; others excuse only for a time (impotence and cession of goods), because they suspend the obligation of restoring as long as the cause lasts.

2. With condonation excepted, all other causes excuse on the part of the debtor. The common principle of these causes is: on the part of the debtor all those things excuse which bring it about that the creditor cannot be reasonably unwilling, although in fact he is unwilling. But the creditor cannot be reasonably unwilling when by restoring the debtor would undergo an inconvenience notably greater than the inconvenience of the creditor from restitution not received. But if the owner would suffer equal inconvenience from omitted restitution as the debtor, this one is not excused 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.

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.

Doubt does not excuse restitution in the following cases: (a) when it is merely negative and the presumption is against the doubter (e.g., when a person knows that he purchased and received goods, but does not know whether or not he paid for them, and has no reason to think he did pay); (b) when it is in bad faith, that is, knowingly or intentionally produced (e.g., when two men simultaneously fire at a neighbor’s cow, knowing that it will thus become impossible to determine the author of the damage).

What things generally excuse from restitution? - All those things excuse for a time, or even exempt totally, which cause the creditor reasonably to have to be content, even if in fact he is not content. - L. 696, 700.

Whether remission, whether express or tacit, freely made by the creditor, indeed even reasonably presumed, excuses from restitution? - Resp. Affirmatively. The reason is that if the owner is not unwilling, the omission of restitution will not then be unjust. Hence you will more easily excuse sons of the household in things of lighter moment, servants in common things to be eaten and drunk, etc.

L. 700.; Lugo d. 21, n. 51.; Ferraris v. Restitutio a. 5, n. 34. As regards the usurpation of ecclesiastical goods, a very ample faculty of condonation was made by Julius III, Lett. 28 June 1554, after the schism of Henry VIII, for England, and by Clement XI, 10 Nov. 1712, for Saxony. But toward the end of the eighteenth century in France, after the Concordat of 15 July of the year 1801, those who had bought those usurped goods from the Government before the mentioned Convention, or bought them after that Convention when alienated, but usurped by the Government before that Convention, could retain them altogether as their own, dispose of them freely, and transfer them to others. Freely, without any attached obligation of fulfilling the burdens of Masses, alms, and other similar things, Concord. art. 13.; Pius VII, Bull 27 July 1817, Brief 20 Oct. 1821.; S. Poenit. 20 Mar. 1818.; Gousset 937. The same is valid in relation to occupations continued by the French Government up to the end of the year 1814 on the left bank of the Rhine; this was afterward extended to ecclesiastical goods which in the whole kingdom of Prussia were secularized up to the end of the year 1824, and at present are possessed by private persons as their own, or will be possessed in the future. From Concess. 27 Nov. 1891, 7 Feb. 1894. Likewise, those who in France at the time of the revolution toward the end of the eighteenth century acquired the goods called national, or the goods of emigrants, proscribed by the Government by decree 27 July 1792, are excused from all restitution, but for another reason. For the Government, by the law of 25 Apr. 1825, burdened itself with furnishing that indemnity, as a debt of the State itself. Gousset 938. For Belgium, to which the Concordat of the year 1801 was already extended, there is also the Brief Epistolam of Gregory XVI, 16 Sept. 1833, where first that Concordat or Convention is extended to any other goods whatsoever from those occupied, as above, which either were alienated by the Government after that Convention, or still remain with the Government itself. This extension perhaps was necessary for this reason, that not a few of those goods which were located in Belgium had been occupied after the Convention. Moreover, those who in Spain bought goods of the Church usurped by the Government before the year 1851 and 1859 possess the same goods with a safe conscience, and are bound by no obligation of pious burdens, on account of the Concordat of the aforesaid year 1851, and the Addition to the Concordat of the same year 1859. As regards the ancient dominion of Sardinia, for the County of Nice and the Duchy of Savoy, now united to France, there is the Concordat of the year 1801; for Piedmont and the Duchy of Genoa, the Brief Datis ad nos, 20 Dec. 1816.; and for the whole kingdom of Sardinia, the Bull Gravissimae of Leo XII, 14 May 1828, by which there is sanation of all ecclesiastical goods which had been occupied by the Government before the Conventions entered into and were alienated by the same before those Conventions or even after them, with likewise no obligation of fulfilling the pious burdens attached to those goods. Likewise, in the kingdom of the Two Sicilies, those who bought from the Government ecclesiastical goods usurped and alienated before the year 1818, on account of the Convention 17 Mar. 1819, art. 13, made them their own, so that thereafter they were altogether unchangeable in the possession of them and of others having cause from them. For a most full remission was made by the Supreme Pontiff for all ecclesiastical goods usurped in this way, and the pious burdens attached to them; this condonation is also had by force of the composition made as regards ecclesiastical goods usurped in more recent times after the year 1860 in Italy, namely as regards those who made the aforesaid composition. Likewise it is tolerated that parish priests receive a congrua from goods not of their own church, but of other moral bodies. A. S. S. v. 32, p. 505 seqq.; A. A. S. v. 2, p. 602 seqq. - Scavini v. 4, n. 219, ed. 12, Milan, 1874.; Gur. Baller. v. 1, n. 750 seqq., Barcelona, 1882.; M. E. v. 10, p. 2, p. 91. Composition is a certain partial remission of debt made by the Supreme Pontiff, as regards ecclesiastical things, and as regards profane things, when the owner is unknown or it is no longer probable that he will appear. - Bishops at present have from the Holy See a special faculty of admitting to composition the faithful who have unduly acquired ecclesiastical goods usurped by Governments, yet within the limits of the Indult granted.

Whether damage to be impeded excuses from restitution? "It is most probable that you are not held to restore a thing which the owner is going to abuse for sinning: indeed if he is foreseen to be going to abuse it to the damage of a third party, you would sin by restoring it, when you could deny it without your own graver or at least equally grave damage.... And then you would sin by restoring not only against charity, but also against justice. The reason is that neighbor has a right that you not hand over anything to another for his destruction." L. 697. Yet others more truly hold that then there is sin only against charity and not also against justice, because the cooperation is material and not proximate, which charity, not justice, forbids; since that action of restoring his own is not of itself illicit and unjust, but indifferent, which another abuses by his malice. - C. I. Poen. 63.; St. Thomas, 2. 2, q. 62, a. 5.

Whether impotence excuses from restitution? - Not only physical impotence, which is had in extreme or quasi-extreme necessity, excuses from restitution, but also moral impotence, or grave difficulty of restoring, e.g., if you cannot live according to the decency of your state justly acquired by you, otherwise if unjustly acquired; if you cannot restore without danger to life or notable detriment of goods or reputation; if restitution cannot be made without danger to your salvation or that of yours. The reason is 1. because otherwise you would sustain more damage than you inflicted in several of these cases, if not in all; 2. more generally, because what is very difficult, and what cannot be done decently and honorably, cannot reasonably be urged by the owner; since justice does not exclude charity and prudence. And this indeed is valid, as is clear, although the debtor culpably cast himself into such straits. L. 697, 698, 702.; St. Thomas, 2. 2, q. 62, a. 8 ad 2.; Ithur. Cas. 16, n. 10, 11.; C. B. 275.

Resolutions: "If a nobleman, e.g., cannot pay immediately unless he deprives himself of servants, horses, arms, etc.... or a craftsman unless he sells his tools, by which he lives, or undergoes great damage, he can defer and restore little by little without the loss of his state." L. 698. "Likewise you are excused from restitution... if there is danger lest wife or daughters prostitute themselves, lest sons give themselves to robberies, lest you yourself through impatience fall into despair." L. 648. "But you are held to restore even with your own damage if, restitution having been omitted, the owner is going to suffer equal damage." L. 697.

Whether the debtor is excused from restitution by reason of necessity if the creditor also is in necessity? - "If the debtor cannot provide for himself otherwise than by the goods which he ought to restore, then he is not held to restore them and cast himself into extreme necessity, even if the creditor is placed in the same necessity unless the debt is restored to him.... The reason is that then all things become common.... Except unless precisely because of that taking away the owner has been cast into extreme necessity, because the condition of the owner possessing first ought to be better." L. 701. "If the creditor is already suffering grave necessity, and the debtor is not then laboring under it, but will labor under it by restoring, certainly he is held to restore, into whatever grave necessity he is to be placed," because in equal necessity the condition of the innocent is better, if the debt is owed from delict; likewise the condition of the creditor and owner is better, if it is owed from contract. L. 697, 698.

If the debtor is already placed in grave necessity, whether he is held to restore when the creditor likewise labors under the same necessity is controverted. The first opinion affirms, because again the condition of the innocent, the creditor and owner, is better, and therefore he is to be preferred. The second opinion denies, because since the debtor "already labors under grave necessity, certainly he could not restore except with very grave inconvenience, so that he would seem to cast himself as it were into extreme necessity." L. 703. Except again unless precisely through that taking away the creditor has been cast into grave necessity. L. 703.; St. Thomas, 2. 2, q. 62, a. 5 ad 4.

Whether cession of goods made to creditors excuses from restitution if the debtor afterward becomes richer and can restore? Resp. Negatively. For if the cession is judicial, this is merely a benefit of law, so that one ceding goods may be immune from coercion in the external forum, as is clear from Roman, Italian, and French Law. But if it is voluntary, because the creditors compose the matter with the debtor since they can have no more, they do not therefore renounce their right as regards integral payment, if the debtor can at some time make it. Except if the creditors expressly or at least implicitly truly free the debtor from payment of this kind. L. 699.; C. G. 1265-1270.; C. I. Comm. 815, 830.; C. H. 1175, 1920.

Whether one ceding goods can secretly reserve something for himself? - Resp. Negatively, speaking of itself, if the thing is of great value, because he inflicts notable damage on the creditors. Affirmatively, if he reserves for himself only things necessary for the support of himself and his family. For as regards these the creditors cannot be reasonably unwilling. And this is admitted by C. I. Comm. 735, 752.; Gousset 772.; L. 699.; St. Antoninus 2 p., tit. 2, c. 8, § 3. Si tertio modo; Lugo d. 21, n. 41.; Ferraris v. Restitutio a. 5, n. 54, 55.

Whether he is excused from restitution who, forgetful of the debt, gave something gratuitously to his creditor? The first probable opinion denies it. "The reason is that since he is debtor both by title of justice and by title of an accepted donation, he cannot satisfy these two obligations arising from diverse titles by one payment." The second probable opinion affirms. The reason is that in every liberal prestation each one has a certain prior general will of satisfying obligations of justice, and a later actual will of donating. But "the first will prevails as the stronger and preceding." L. 700.

Whether entrance into religion excuses from debts to be paid? - If a religious gains something in religion, must he apply this to paying debts? - If a legacy comes to him, must he satisfy debts from it? - Resp. to the 1st: Entrance into religion does not directly free one, of itself, from debts to be paid, but indirectly; namely insofar as it licitly impedes the means by which debts can be paid. For, except in the cases prohibited by canon law, a debtor licitly enters religion, at least when he cannot easily and in a short time satisfy debts before entrance. Therefore by that very fact he is freed from the burden of restoring. For natural law no longer urges when the debtor cannot satisfy except with so great detriment of his freedom, and with danger of eternal salvation to be lost in the world. For the debtor is not held with so great an inconvenience to be deprived of the more perfect state of religion.

Resp. to the 2nd: Affirmatively, if he can easily labor, and the superior permits; for the state of religion does not of itself free from the obligation of restitution, but only licitly impedes it. Yet the superior is not at all held from justice to grant this permission, but only from charity, if no inconvenience opposes. Resp. to the 3rd: Negatively, if he has emitted solemn profession; because then he is incapable of dominion, and from canon law that legacy is acquired by the monastery. Affirmatively, if he has emitted only simple vows; because in that case the legacy is acquired by him. L. 1. 4, n. 71.; St. Thomas, 2. 2, q. 189, a. 6 ad 3.

Whether a debtor is excused from restitution in doubt of payment? Resp. Negatively in a merely negative doubt, because then no prudent reason of payment made is present. - In a positive doubt or probability it is controverted. The first probable opinion affirms; because an obligation is not to be imposed unless it is certainly established concerning it. Moreover, because, as St. Alphonsus says, l. 4, n. 107, "no legitimate possessor of his own is held to restitution who has for himself a probable opinion." The second probable opinion denies it, because a certain obligation is not satisfied by a doubtful fulfillment. The third probable opinion says restitution must be made pro rata of the doubt; because it is not equitable that as much be paid from a doubtful right as would be paid if the right were certain. The fourth opinion affirms in gratuitous contracts, denies in onerous ones. "Nevertheless," adds D'Annib. p. 2, n. 327, ed. 3, "if it seems probable that you or your author satisfied an obligation, even an onerous one, I judge that one can cease from payment, so long as the creditor, not ignorant of the obligation, does not ask." L. 1. 1, n. 82.; l. 3, n. 700.; l. 6, n. 477. Cf. here 1369, 1378.

Whether he is freed from restitution who pays the debt to the creditor of his creditor; e.g., I owe you 100 francs, but you owe 100 to Titius: do I satisfy by paying 100 to Titius? Resp. Affirmatively of itself, to the strict point of law. The reason is that I, by paying to your creditor that which you owe him, acquire the right which he had of requiring from you the debt owed to him; hence the right which I have against you is equivalent to the right which you have against me, and compensation is made. For your creditor can transfer his right to me, or I can buy it, just as any other who owes you nothing. Of itself; because I am not freed if perhaps you are still compelled to pay, or you have privileged or mortgage creditors. To the strict point of law; because such payment, if it is made without cause, will be illicit on account of the various inconveniences to which it is liable. But there is sufficient reason if your creditor cannot recover his debt.

L. 700.; Billuart diss. 8, a. 14, § 1.

722. • Q. 8. Whether condonation reasonably presumed 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 owner's will. But it is not done against the owner or creditor if it is done from his reasonably presumed will. Therefore, etc. Thus sons of families can more easily be excused, if they have stolen a sufficiently small sum of money from their parents. Likewise servants who consumed common foods. But abuse in this matter must be avoided as much as possible, lest thus a door be opened to innumerable injustices. - Lacroix, n. 462. - Lugo, D. 21, n. 54. - St. Lig., n. 700. - Vogler, etc. - See Casus, n. 714 and following.

599. After what has been said concerning the obligation, roots, and circumstances of restitution, it remains to inquire whether and what causes excuse from restitution. But some excuse for a time, others forever: concerning these we must speak separately.

¹ Lessius, lib. II, cap. 16; Sayrus, lib. X, tr. V, cap. 6; Lugo, disp. XXI; Billuart, diss. VIII, art. XX; Sporer-Bierb., t. II, tr. IV, n. 511-568; St. Alphonsus, n. 696-706; Carriere, n. 1267-1300; Ball. P., n. 527-550; Lehmk., n. 1038-1044; Genicot, n. 557-559; Noldin, n. 504-512.

606. 1. Condonation, whether express or tacit, that is, remission of the debt made by the creditor, provided however it be clothed with certain conditions, namely: (a) altogether free, that is, immune from every error, fraud, fear, or force; hence condonation does not have force if the creditor errs or is deceived about the quantity of the debt, thinking it to be much less than it truly is, - if the debtor uses threat or pretends that he is much poorer than he in fact is; (b) that it be made by him who has the power of condoning, that is, who can donate his goods, according to those things which we shall hand down where the capacity of donating is treated.

By natural law, condonation can be express or implicit, or tacit, e.g., by deleting the note of debt; but it cannot easily be presumed. Yet in certain cases, it is deservedly presumed when a positive and solid foundation is present; thus children of the family generally can presume the condonation of parents when the question concerns a sum of money which is not very great and has already been spent; the same holds for wives.

By French law, condonation is presumed when the creditor sends back to the debtor the note by which the debt is proved. Of itself no special form is required for condonation; but for gratuitous condonation the conditions necessary for donation itself are desired; if it is made by testament, the essential forms of testament must be observed.

607. 2. Compensation, by which an equal debt on both sides is extinguished, provided both are certain and from strict justice.

Often civil law also requires that it be made in the same genus of goods. - To this is added payment made to the creditor of the creditor, which is legitimate when it is made from a reasonable cause; namely if the creditor cannot obtain payment of the debt, he can ask from the creditor of his debtor that he himself be willing to pay the debt; thus Paul owes one hundred coins to Peter, while John owes one hundred and fifty to Paul; Peter can ask from John the payment of one hundred coins, and thus John will owe only fifty to Paul. - Yet this faculty in various regions is restricted by law.¹

¹ As regards France, cf. C. civ., n. 1292, 1293; C. proced. civ., a. 557, 580, 581; Planiol, II, n. 567 sq.; 456 sq.

608. 3. Donation of an equivalent thing made to the creditor; namely when Caius, who owes fifty coins to Titius, gives him a thing of the same price, which Titius accepts, provided however he has at least the implicit intention of paying the debt, and not of making a donation, as was already noted above (n. 562).

609. 4. Declaratory sentence of the judge in doubtful matter; namely when it is doubted whether some thing is owed to someone, the civil judge can solve the doubt, and the public good demands that the parties adhere to this sentence in conscience. - Yet if afterward it is discovered that the sentence was objectively unjust, - because, e.g., a new title hitherto unknown is discovered, - it will certainly be licit for the injured party to seek back those things which had already been paid, whether judicially or by another legitimate mode.

610. 5. Composition, or remission of debt granted by the Supreme Pontiff, whether directly or through Sacred Congregations. This indeed can be made for uncertain temporal debts, and for ecclesiastical goods.

(A) When the owner to whom restitution must be made remains altogether unknown, even after diligent inquiry, regularly the possessor in bad faith would have to give the thing owed to pious causes. But sometimes it happens that the debtor cannot restore the whole without great inconvenience; then recourse can be made to the Supreme Pontiff, through the Sacred Penitentiary or Dataria. Now the Supreme Pontiff is accustomed to make condonation in such a way that he decrees that some part of the debt is to be applied to pious causes, and grants another part to the debtor. This indeed is consonant with reason: for by force of the supreme power with which he is endowed, he can do everything that is truly useful for the salvation of souls; but when the question concerns uncertain goods, it is often expedient for tranquility of conscience that some composition be made: for this benefits the debtor, who, if restitution were omitted, would be situated in bad faith, - and also pious causes, which receive part of the debt, while otherwise perhaps they would have received nothing.

But what if afterward the true owner appears? There is no difficulty if the time for prescription has already elapsed, as will generally happen concerning movable things. But if the time has not elapsed, the debtor in conscience is not bound to restore that which in good faith he gave to the poor, except after the sentence of the civil judge; indeed, according to many, he is not bound, before the sentence of the judge, to render that which the Supreme Pontiff from a just cause had condoned; for the latter, in a case of doubt, has the right of transferring dominion from one to another, just as the civil power itself; nevertheless it is better to return this part to the owner, even before the sentence of the judge, if this can be done without grave inconvenience.

(b) As regards ecclesiastical goods usurped or illegitimately detained, the Supreme Pontiff, by force of high dominion, from a just cause has in fact condoned them several times, especially to Governments. From the Indult of September 21, 1907, the Ordinaries of France can admit to an equitable composition the buyers of ecclesiastical goods or other illegitimate holders, with the consent of those who canonically represent pious causes and of others having interest.

The obligation of making restitution ceases absolutely and for ever the moment it has been certainly and completely fulfilled. When it is doubtful whether or not restitution has actually been made, it may be presumed in cases where the debtor is in the habit of meeting his obligations promptly and can adduce in his favor reasons which render it very probable that he has made the required compensation.

Though the duty of making restitution for goods unjustly acquired, or damage unjustly inflicted, is a most important one, yet there may be reasons (causae) which excuse one from complying with it, for, as the theologians say, “Restitution is not necessary as a means of salvation.”¹ These causes either excuse the debtor from making restitution for ever (omnino sive in perpetuum), in which case there is an excusatio plena, which completely extinguishes the obligation; or they excuse him only for a time (ad tempus), in which case the obligation is merely suspended. Causes of the latter kind are known as suspendentes.²

¹ “Restitutio non est necessaria ad salutem necessitate medii.”

² Cfr. Elbel-Bierbaum, Theol. Mor., Vol. II, 3rd ed., p. 6, n. 324, where ten such causes are given.—Lehmkuhl (Theol. Mor., Vol. I, pp. 705 sqq.), following Reuter (Theol. Mor., P. III, n. 351 sqq.), enumerates fourteen (cfr. Reuter-Lehmkuhl, Neo-Confessarius, n. 233).

1. The chief causes which excuse from restitution for ever are: (a) Remission or condonation on the part of the rightful owner of the property involved; (b) legal prescription; (c) compensation; (d) entry of the debtor into an approved religious institute, and (e) a papal dispensation.

a) Remission or condonation (remissio sive condonatio) supposes that the rightful owner is able and willing to give up his claim to restitution, i. e., that he has power and dominion over the property involved and has not been forced to relinquish his claim by fear or violence. Children, wards, administrators, and religious, cannot validly remit or condone a claim to restitution without the consent of their parents, guardians, or superiors, respectively.

Equivalent to free remission or condonation, according to the common teaching of theologians, is the certain presumption that the owner does not insist on restitution nor expects it to be made (certo praesumpta voluntas domini), even though he has not expressly said so.³ This presumption (which must be based on solid grounds) may be reasonably invoked in favor of minors, husbands and wives, brothers and sisters, and other relations, and also in favor of servants, when the amount involved is small; for in all these cases it is reasonable to assume that the owner, if requested, would readily grant the desired condonation.⁴

³ Scavini-Del Vecchio, Theologia Mor. Univ., Vol. II, 5th ed., n. 298 (p. 211): “Tacit remission also has force, for according to the rule of law, ‘tacit and express consent have nearly the same force and condition.’ Indeed, even a certainly presumed remission has force, as theologians quite commonly teach with the Angelic Doctor: For what fraud does he commit who thinks that the owner would have consented? Hence an owner dismissing a servant for petty thefts is deemed to remit to him the whole obligation, because he asks nothing.”—Cfr. St. Alphonsus, Theol. Mor., l. III, n. 700 (ed. Gaudé, II, 164).

⁴ Noldin, Summa Theol. Mor., Vol. II, pp. 534 sq.

b) Legal prescription (praescriptio) or usucapio, that is, continued exercise of the right of ownership for a certain definite time, also excuses from restitution, under the usual conditions, but may be claimed only by those who are in good faith, not by those who possess property in bad faith or doubtfully.⁵

⁵ “Possessor malae fidei ullo tempore non praescribit.”—(Reg. Iur. in VI° Decr. Bonif. VIII, n. 2).

c) Occult compensation (compensatio occulta) consists in covertly taking one’s own from another, who unjustly holds it, or in inflicting upon that other an injury equal to the value of the object claimed.⁶ Occult compensation is allowable in conscience on four conditions:

⁶ V. supra, pp. 366 sq.

α) The debt must be morally certain. If I have only a probable right, I may have recourse to the law to have the question decided, but with nothing more than probability on my side, I must not deprive another of what he possesses with a probable right on his side. In such a case, “melior est conditio possidentis.”

β) There must be a difficulty in vindicating my right by the ordinary legal process. Public order and peace require that I should not take the law into my own hands. Even though there be no fear of a breach of peace from occult compensation, yet no man is a safe judge in his own case.

γ) I must not secretly take what belongs to me when there is likelihood that I may be paid in the long run; for by so doing I should wrong my debtor.

δ) Compensation must, as far as possible, be made in the same kind of property. The debtor must not be forced to barter or sell his property against his will.⁷

⁷ Slater, A Manual of Moral Theology, Vol. I, pp. 452 sq.; cfr. Noldin, II, pp. 453 sq.

Of these conditions the first is the most important; but all should be loyally and conscientiously observed in those special cases where recourse is had to occult compensation.

The fact of occult compensation being established, no further restitution need be made.

d) Profession in an approved order or congregation (professio religiosa), which implies a renunciation of all property rights, excuses from restitution only if the creditors are not injured, or the debtor is absolutely insolvent, so that his creditors expect nothing from him. If he can make restitution by postponing his entrance into religion, the more reasonable and safe course will be to satisfy his creditors before he bids adieu to the world. The Code of Canon Law prescribes that those who “are burdened with debts which they are unable to discharge” may not licitly be admitted as novices in any religious order or congregation.⁸ This holds even though the order or congregation is willing to pay his debts. For, as Fr. Augustine observes, “such an offer would imply alienation of the goods of the order, which is not permitted.”⁹

⁸ C. I. C., can. 542, 2°.

⁹ Charles Augustine, O. S. B., A Commentary on the New Code of Canon Law, Vol. III, p. 213. Cfr. Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 190 sqq.; Elbel-Bierbaum, Theol. Mor., Vol. II, 3rd ed., p. 6, n. 335, 342 sqq.; Lehmkuhl, Theol. Mor., Vol. I, p. 705.

e) A papal dispensation (compositio pontificia) can be applied only to cases where restitution may be made ad pias causas, hence only to uncertain obligations when the owner cannot be ascertained, and to restitution which has to be made to the Church in obedience to ecclesiastical laws; also to ecclesiastical goods and revenues, for instance, where a cleric has to make compensation for having unjustly held a benefice or having neglected to say his Breviary. In all these cases it must be shown (a) that the injustice was not committed in view of the dispensation to be obtained, and (b) that full restitution is impossible. Whenever the rightful owner is known, the Pope cannot remit the duty of making restitution to him because he has no direct dominion over the property of others.¹⁰

¹⁰ J. E. Pruner, Lehre vom Recht, Vol. II, p. 79; Idem, Kath. Moraltheologie, Vol. II, 3rd ed., p. 221; cfr. Lehmkuhl, Casus Consc., Vol. I, 3rd ed., 783 sqq.; Göpfert, Moraltheol., Vol. I, 6th ed., pp. 296 sqq.

2. A temporary postponement is justified by physical and moral inability to make restitution and by bankruptcy.

a) Physical (impotentia physica vel absoluta)¹¹ as well as moral inability to make restitution constitute a valid excuse as long as they last, for no one can be held to do what is beyond his power.¹² Moral incapacity (impotentia moralis) exists when a man cannot make restitution without impairing goods of a higher order, such as life, health, honor or good name, or without exposing himself and those dependent upon him to severe want or to destroy his entire honestly acquired fortune.¹³ It is assumed, of course, that the rightful owner is not exposed to the same danger if restitution is not made, for “melior est conditio innocentis quam nocentis.” When there is real incapacity to make restitution, a third person (for instance, the confessor) may intercede with the creditor to obtain a remission or postponement. Whoever is incapable of making restitution must be willing to do so in case he becomes able, make every reasonable effort and actually do his duty as soon as he can.

¹¹ Cfr. Gury, Comp. Theol. Mor., Vol. I, n. 687: “Physical impotence, or impossibility of every kind, which is present in extreme necessity, and indeed even in very grave necessity, whether of the debtor himself or of his own, that is, of his wife and nearest blood relatives.”—Cfr. Noldin, II, pp. 535 sq.

¹² Reg. Iur. in VI° Decr. Bonifat. VIII, n. 6: “No one can be obliged to the impossible.”—C. 5, X de usuris, V, 19: “Those who do not have the means from which they could restore usury must not be punished by any penalty, since the mark of poverty excuses them.”—Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 8, ad 2: “When some one cannot restore at once, the impotence itself absolves him from making restitution immediately, just as he is also absolved entirely from restitution if he is wholly impotent; nevertheless he ought to seek remission or delay from him to whom he owes, either by himself or through another.”

¹³ Gury, Comp. Theol. Mor., Vol. I, n. 687: “Moral impotence, or a grave difficulty of restoring, that is, if restitution cannot be made without grave inconvenience to the debtor, e. g., if by restoring he would have to fall notably from his justly acquired station or fall into grave necessity, etc. The reason is that then there is a true impossibility of restoring; for in morals that is called impossible which is very difficult and which cannot be done fittingly and honorably.”—Cfr. Elbel-Bierbaum, Theol. Mor., Vol. II, 3rd ed., P. VI, n. 197 sq., 336 sqq.; Lehmkuhl, Casus Consc., Vol. I, 3rd ed., n. 769 sq.

b) Bankruptcy (concursus creditorum) is a judicial proceeding by which a person, who has been legally ascertained to be insolvent, is adjudged to be discharged from his indebtedness upon surrender of his property (cessio bonorum) for pro rata distribution among his creditors.

Bankruptcy may be voluntary or forced. It is voluntary (cessio bonorum voluntaria) if freely accepted by the creditors of the bankrupt man or firm; it is forced if they are compelled to accept it by a decree of court. Voluntary bankruptcy¹⁴ is really nothing more than a sort of mutual agreement between debtor and creditors.

¹⁴ In the U. S. a corporation, a minor, or an insane person cannot become a voluntary bankrupt under the Federal Bankruptcy Act of 1898, which superseded the various State insolvency laws till then in force.

If the debtor is incapable of meeting the demands of his creditors, he may either cede to them his property voluntarily for the satisfaction of their claims, or wait till he is compelled to do so by the courts, but in either case he remains bound in conscience to make good the deficiency as soon as his financial condition permits, unless the creditors release him from this obligation.

He who gives up his property to satisfy his creditors, may retain as much of it as he needs to support himself and his family in accordance with their station in life. The fraudulent concealment or removal of valuable objects, or any notable preference shown to particular creditors is punishable under the civil law and a mortal sin.

If a bankruptcy is fraudulent, it entails the duty of complete restitution. If it is the result of culpable carelessness, the debtor is bound to make restitution to his creditors to the best of his ability. If there is no guilt involved, this obligation does not bind unless and until the debtor again becomes prosperous and has an income exceeding the requirements of his station in life.

When one is in doubt whether or not he has paid his debts, he is obliged to pay. For a certain demand of justice cannot be satisfied by an uncertain payment, because commutative justice demands equality (aequalitas rei ad rem). Most authors declare the debtor to be free from all obligation, provided the uncertainty is not the result of his own negligence. The assertion that the aequalitas rei ad rem demands that to a certain debt there must correspond a certain payment, proves nothing because the equality would again be destroyed by the fact that the debtor might run the risk of paying the debt twice. It is equally false to argue that under such conditions a man is bound to pay the debt twice, because the doubt in his mind is the result of his own carelessness.¹⁵

¹⁵ Lehmkuhl, Casus Consc., Vol. I, 3rd ed., n. 754–759, 775–778.—Göpfert, Moraltheologie, Vol. II, 7th ed., p. 300.—The American bankruptcy legislation and practice are well summarized by Dr. Albert Sidney Bolles in Putnam’s Handy Law Book for the Layman, New York, 1921, pp. 31–38, to which we refer the student. A general assignment for the benefit of creditors is an act of bankruptcy. A petition for the appointment of a receiver is not. The U. S. district courts in the several States are courts of bankruptcy and have power to adjudge bankrupt those who have their principal place of business, residence, and domicile within their respective districts, and they have power also over those who have property within their jurisdiction.

Is a bankrupt who has obtained his discharge after paying his debts in part only, bound to pay in full if he subsequently becomes able to do so? If the creditors have expressly released him from all further obligations, it is evident that he need not pay the balance of his indebtedness. But if they have not so released him, the question is plainly reduced to one of fact, namely, what is the civil law on the point, and what is its effect? In this country several theologians have held that a discharge in bankruptcy does not in conscience free the debtor from liability to pay his debtors in full, if he subsequently becomes able to do so, whereas others (Marc, Kenrick) regard the contrary as a probable opinion. Fr. Slater thinks that “in the United States one who cannot pay his creditors in full must make up the deficiency afterwards if he can, whether he makes a composition with his creditors or goes into the bankruptcy court.”¹⁶ Sabetti-Barrett say that, in view of the clause in the Federal Bankruptcy Act of 1898, that “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,” and since there is nothing in the wording of the act itself to prove that the discharge should be limited to a mere denial of legal action for the balance of the debt, it is safe to hold, with Father Martin, S.J.,¹⁷ that there is no obligation to pay the residue of the debt, and even if the confessor should hold the opposite opinion as probable, he has no right to impose it upon his bankrupt penitent, but is rather bound to allow him the benefit of the probability.¹⁸ All of which, of course, supposes that the bankruptcy was not fraudulent.

¹⁶ T. Slater, S. J., Questions of Moral Theology, p. 190.

¹⁷ In his American notes to Slater’s Manual of Moral Theol., Vol. I, pp. 438–451.

¹⁸ Sabetti-Barrett, Comp. Theol. Mor., 27th ed., p. 408.—Cfr. J. O’Mahony, “The Bankruptcy Laws and Conscience,” Irish Theol. Quarterly, Vol. II (1907), No. 7.

Readings.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 177 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 696–706 (ed. Gaudé, II, 161 sqq.).—A. Lehmkuhl, S. J., Theol. Mor., Vol. I, pp. 705–712.—H. Noldin, Summa Theol. Mor., Vol. II, pp. 533–541; 452–455.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 253–258.—J. B. Ferreres, Comp. Theol. Mor., Vol. I, pp. 560–564.—T. Slater, A Manual of Moral Theol., Vol. I, pp. 437–452.

The following is held as a general principle in this matter: Those causes excuse from making restitution which bring it about that the creditor is no longer reasonably unwilling that the restitution owed to him either be omitted altogether or at least be deferred for a time.

Therefore, causes exempting absolutely from all restitution and causes excusing for a time are distinguished.

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.

S. Th. II-II, q. 62, a. 5, ad 1; a. 8, ad 2.

335. Causes excusing from restitution are of two kinds: 1) some excuse for a time, which suspend the obligation of restoring, so that while they endure it as it were sleeps, but when they cease, it again awakens and revives; 2) others excuse in perpetuity, which truly exempt or release from obligation and extinguish the obligation of restoring forever.

The causes excusing for a time are: ignorance - inability - one's own damage - another's damage; but the exempting causes are, besides the destruction of the thing, condonation - compensation - and legitimate authority.

336. The causes excusing for a time, on account of which restitution can licitly be deferred, are:

1. Inculpable ignorance, whether it is of fact, as if you are ignorant that the thing is another's, or of law, as if you do not know that the debt, even with the creditor deceased, is to be restored to the heirs; ignorance does not excuse from material sin, but only from formal sin.

2. Inability strictly so called or absolute, which is placed in this, that the debtor has nothing from which he may restore, or not without being reduced to extreme necessity, for example, one who burns a house and is detained in prison: for no one is bound to the impossible, and in the case of extreme necessity everyone can take secretly and, a fortiori, preserve those things which are necessary for relieving that necessity; yet it is always necessary that there be present the will of restoring in the future, when inability ceases.

3. Moral inability, namely, grave damage to oneself, or grave necessity, unless the creditor would fall into the same necessity. Thus if restitution cannot be made: a) without grave danger to salvation, life, health, reputation, or liberty; b) without a change of an honest state justly acquired; c) without damage grave in one's own temporal goods and much greater than is the damage of the owner or creditor from the delayed restitution.

4. Grave imminent damage to another, either to the creditor himself or to a third party: for then the creditor is not judged reasonably unwilling, and from charity the debtor is bound to defer restitution if this can conveniently be done, for example, if it is foreseen that the owner will soon abuse his thing for indulging drunkenness or lust; indeed sometimes from justice he must defer, if it can be done without graver inconvenience, when the owner by means of the restored thing would soon commit injustice, for example, if with a sword returned he would kill, because then the one restoring would be accounted as proximately cooperating toward inflicting damage on another. Yet it is necessary that delay in the case be an efficacious remedy: for if in no way it could prevent the evil effect, because the creditor would easily use other means for sinning or harming, there is now no reason for deferring restitution.

337. Corollaries. - Hence the debtor is excused from restitution to be made immediately:

1. if he is in grave temporal necessity, unless the creditor were in the same necessity; 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, yet not if the creditor has previously come into extreme necessity, because then the unjust possessor could not appropriate the thing to himself;

2. if he ought to undergo damage of a higher order, whether of body or of soul, for example, if he himself or someone of his own would have to suffer loss of life, health, liberty, and a fortiori if he would be exposed to the danger of sinning, say if he would fall into despair, or a spouse or daughters would prostitute themselves, or sons would give themselves to robberies;

3. if he ought to undergo grave damage in reputation, at least regularly, because the good of reputation is of a higher order than the good of fortune; whence an adulteress ought not to reveal her crime lest legitimate children be injured in the division of goods;

4. if he ought to fall away from his own state justly acquired, even if by his own fault, gambling, drunkenness, he has incurred this necessity, for example, if a merchant or magistrate would lose his business or office or be reduced to servitude.

Nevertheless a) then there is incumbent on him the obligation of diminishing expenses and living sparingly and laboring diligently, so that he can restore as soon as possible; whence those are not to be absolved who change nothing in their state; b) he cannot use the aforesaid privilege who, in public estimation, acquired his state unjustly, as by robbery, fraud, usury, a supposititious testament, etc., because by restoring he does not fall away from a state but rather is reduced to a just state.

5. if he would suffer great damage in goods justly acquired, which notably (at least by double) exceeds the damage which the creditor suffers from the delay, for example, if the owner or merchant would have to sell his possessions or wares at a much lower price than they are worth, or a worker would have to deprive himself of an instrument necessary for working; yet the mere privation of gain does not suffice.

338. Cession of goods. - One unable to pay all debts can make a cession of goods (goederenafstand). It is the abandonment of all goods which a debtor unequal to paying makes to his creditors for preserving his liberty.¹ One kind is voluntary, which is offered spontaneously and accepted by the creditors; another is judicial, which is imposed by a judge even when the creditors are unwilling. Moreover, each can be culpable or inculpable, according as the debtor has become unequal to paying debts from his own fault or fraud, or from mere misfortune. Now in the case:

¹ C. C., a. 1265-1270; Belgian C. Com., a. 535.

1. The debtor must hand over all goods and cannot retain for himself except those which are necessary for the honest support of himself and his own, yet living sparingly according to condition: for he can licitly defer restitution lest he fall down from his state. Thus from natural law; otherwise the tribunal itself is accustomed to provide for this necessity, and then the debtor is now bound sincerely to hand over all things.

2. Whence he sins gravely against justice who, besides goods necessary for himself and his own, conceals others and withdraws them from creditors, whether after or before cession (verduistering): whether by placing them elsewhere, or by selling them and placing the money obtained therefrom in safety, or by fictitiously selling so that he may afterward enjoy them, or by all other frauds. - Unless perhaps there were question of things of the family which, because of memory of parents or friends, are very dear to the debtor, but are held by others as of lesser price.

3. The debtor himself acting unjustly in this way, and the cooperators or participants in this defrauding, provided they are conscious of the injustice, are bound to restitution for the damage inflicted on the creditors.

4. Some have judged that the debtor is not guilty of injustice who would reserve for himself a few means by which he could afterward begin some small business. But this can be permitted only if the creditors are judged to consent to it, so that there may be greater hope afterward of obtaining integral payment; for the law is not accustomed to grant this.

339. Observation. - Is a debtor who has deferred restitution on account of a just cause bound to compensate the ceasing gain or emergent damage which the creditor has suffered therefrom?

R. 1) A debtor of good faith is not bound, if he has not been in culpable delay, because he is not the unjust and culpable cause of this damage; yet as soon as he knows the thing to be another's, he can no longer perceive the fruits of the thing, but from this moment he is bound to pay them to the owner;

2. a debtor from delict, or a possessor of bad faith or unjust damager, is bound to compensate all things, because the damage is unjust, since it proceeds from an unjust and culpable cause, as was already said above in n. 333, 3.

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.

II. Composition with the supreme Pontiff is then had when the Roman Pontiff, by his supreme power, so treats that one part of the debt indeed is expended on pious causes, but the other is forgiven to the debtor, supplying out of the treasury of the Church the spiritual benefit which would accrue to the owner if the whole debt had been spent on alms. ^{457 457} S. Lig., Homo apost., X, 117, 2°.

For the composition to be legitimate, and to free the debtor in the forum of conscience, it is required: 1° That the owners be altogether uncertain; for if they are known in some degree, as in petty thefts, or merchants cheating in weight and measure, they cannot without injustice be directly despoiled without their consent. 2° That a just cause be present; for otherwise the composition would indeed be valid, but illicit, in ecclesiastical matters; in other matters, however, the cause failing, it would also be invalid, because in the first case the supreme Pontiff dispenses in his own law, but not so in the second. — If, however, the cause has been just, the composition once made is not revoked, although the owner appears, because dominion has already been legitimately transferred. So Lugo, against others, who wish the debtor in that case to be held to restitute to the owner that by which he has been enriched. ^{458 458} Id., lib. IV, n. 592 et 593 ; Homo apost., X, 68.

This composition is made through the bull of the Crusade, for those to whom it has been granted, for example, in Spain, in Sicily, etc. It can also be obtained from the Holy Penitentiary, to which, by the bull Pastor bonus, was granted the faculty of remitting part of what has been wickedly taken or retained, if the owner is uncertain, the case occult, and the offender poor. But the part which is not remitted must be given to the poor, or expended on pious works, and indeed, if possible, in those very places where the unjust acquisition of those goods was made.

As regards the bishops, the truer opinion holds that the faculty of composition does not belong to them, since it is an act of supreme power. ^{459 459} Id., lib. IV, n. 696.

I. Impotence, which excuses from restitution, is twofold. The one physical, of which no one doubts; the other moral, which brings a most grave, or grave, difficulty. Beforehand, nevertheless, I would have you observe that there is a difficulty innate in any restitution whatsoever, on account of the cupidity and avarice of men. But this difficulty in no way excuses from making restitution. Under the name therefore of the difficulty which constitutes moral impotence is understood either extreme want, or a notable and grave evil, or scandal, or a danger of sinning to be undergone on account of the restitution.

II. Hence you may infer, first, that a debtor can defer restitution when a danger of grave loss is imminent — say, if the creditor were going to abuse his thing to the harm of the common good or of a neighbour. Secondly, if the debtor himself would undergo a grave loss by restoring at once, whereas the creditor would suffer little or no inconvenience. For restitution is ordained to preserve equality between the parties. But there would not be equality when the debtor had to restore to the creditor at so great a cost, and the latter scarcely feels an inconvenience on account of the delay. And in this case a man would be unreasonably injured. Thirdly, the precept of restitution does not urge when from the execution of it a spiritual danger would be imminent; as if on account of restitution the chastity of one's daughters would have to be prostituted, or if you could not in fact feed your sons. A craftsman is not bound to sell the instruments of his art, by labouring with which he acquires what is necessary for his food; he ought nevertheless to exercise his art, that he may pay his debts. In an equal case, extreme necessity of someone excepted, the creditor ought to be preferred, as the innocent to the guilty. Delay of restitution is not lawful for the procuring of gain, especially if the creditor suffer loss.

III. Wherefore the greatest caution is needful with debtors, since men are prone to retain what belongs to others. Debtors, as I have said elsewhere, are commonly rich men or nobles, who under pretext of maintaining their estate defer the payment of debts, and strive to foster the splendour of their pomps and the pride of their display with the blood and sweat of hirelings and merchants. Wherefore again and again confessors are to be admonished that they altogether keep these back from the sacraments until they have paid their debts. For these are tramplers upon every justice, inhuman and savage, both because they defer the payment of the wages they owe, and because they cruelly compel poor debtors, like that creditor in the Gospel, to pay them to the last farthing.

IT IS the common and certain opinion of all that he who unjustly detains a thing against the owner's will is under a continual actual obligation of restitution. So D. Bonavent. in speculo, cap. 8. in calce D. Thom. art. 8. Caietanus ibid, Sotus lib. 4. de Iust. quaest. 7. art. 4. Valentia quaest. 6. puncto 7. and the rest. But things acquired by contract do not oblige to restitution except at the appointed time, as the holy Doctor observes, whom all follow. See Tannerum disput. 4. quaest. 6. disp. 14. num. 44.

ALTHOUGH matters stand thus, nevertheless D. Bonavent. above, D. Thom. and others acknowledge certain causes which excuse from restitution, either always, or at least for a time, as long as they last.

Now these causes either hold on the side of the debtor, or on the side of the creditor, or on the side of the thing itself, or by reason of public authority.

On the side of the debtor, the first excusing cause is probable ignorance; yet not crass ignorance; whether it be of law or of fact, Caietanus verbo Restitutio, cap. 6. Nauar. in manuali, cap. 17. num. 82. Valentia loco cit. adduce it as excusing. But if it is crass or supine, it does not excuse. Such would be that of one buying a silver chalice from a soldier. See Fagundez Lib. 7. cap. 25.

THE second cause is doubt; for in doubt the condition of the possessor is the better, as the rule of Law has it.

THE third cause is poverty. So D. Bonavent., whom all follow.

THE fourth cause is necessity, when he indeed has wherewithal to restore, but he himself needs it, whether he labors under extreme necessity, in which nearly all concur; or even if it be a grave necessity, so that he may preserve the decent condition of his state honestly, as D. Antonin. part. 2. tit. 2. cap. 8. Nauar. in man. cap. 17. num. 63. Sotus Lib. 4. de Iust. quaest. 7. art. 4. Couar. relect. in regulam Peccatum, part. 1. art. 2. Valentia quaest. 6. puncto 7. Aragon quaest. 62. art. 8. and commonly others hold, as appears in Fagundez Lib. 7. cap. 27. and Tannerum disput. 4. quaest. 6. dub. 15. num. 429. Bassaeum V. Restitutio 5. num. 4. Bonac. disp. 5. quaest. ult. punct. 1.

THERE indeed arises a doubt: whether, if the Creditor also is in extreme need, the Debitor is bound to the extreme necessity of the Creditor rather than to his own.

SCOTUS 4. dist. 15. quaest. 2. Sylvest. V. Restit. quaest. 2. Azor tract. 3. lib. 4. cap. 39. and the cited Bassaeus say that he is bound to restore.

THE second opinion denies that he is bound. So it seems to D. Thom. 2. 2. quaest. 62. art. 5. ad 4. It is expressly defended by Valentia disp. 5. quaest. 6. puncto 7. Lessius Lib. 2. cap. 16. dub. 1. Malder. tract. 4. cap. 7. dub. 1., Sotus Lib. 4. quaest. 7. art. 1. Azor tract. 2. lib. 12. cap. 8. quaestio 6. Tolet. lib 5. cap. 24. Sayrus Lib. 10. tract. 5. cap 6. Fagundez Lib. 7. cap. 25. num. 14. Tanner. loco cit. adding: unless however the creditor has been reduced to extremity by his own withholding.

THE FOUNDATION is that in extreme necessity the Ius gentium ceases, by which the division of things was made, and the natural law is restored in its entirety, in which all things are common and come to be by way of the occupant's seizure, at least as to use, as the holy Doctor argues in Apol. paupert. cap. 1. quartae responsionis.

ON this foundation Malderus, Lessius, Sayrus, Fagundez above consequently infer that the debtor's parents also are to be preferred, if they lie in extreme necessity.

IT IS DOUBTED secondly: when creditor and debtor are both alike in grave necessity, is the latter bound to restore, falling from his station, so that, if he was a noble, he be compelled to become a craftsman?

SOME excuse him, and say he is not bound. So many hold, as appears in Fagundez Lib. 7. cap. 27. which opinion Malderus tract. 4. cap. 7. dub. 1. Tanner. num. 430. judges probable, together with Carbone quaest. 77.

YET commonly they say he is bound to restore: Azor tract. 3. Lib. 4. cap. 39. Petrus Nauar. Lib. 4. de restit. cap. 4. disp. 9. num. 53. Less. Tom. 1. de Iust. Lib. 2. cap. 26. dub. 1. Tolet. Lib. 5. cap. 24. Fagundez, Bassaeus loco cit.

THE REASON is that in grave necessity the Ius gentium remains in force.

THE fifth cause is grave loss in one's own goods, which the debtor would incur through restitution; as Caietanus loco cit. Ioan. Medina quaest. 3. de rebus restit. causa 4. Sotus Lib. 4. de Iust. quaest. 7. art. 4. Nauar. man. cap. 17. num. 56. Couar. loco cit. note; and the holy Doctor adduces this when he adds the condition: provided however the possibility of paying be present; for not only is he judged unable to pay who can in no way, but also he who cannot do so conveniently without, to be sure, grave loss, as appears ex Lege Nepos Proculo, ff. de verborum significatione, et cap. faciat, 22. quaest. 2. as Valentia notes loco cit. causa 5. Tanner. num 433.

HENCE one is not bound to restore at the peril of one's own good name. Wherefore they excuse the woman who does not reveal the bastard son she had from adultery. So admonish nearly all the Doctors, as appears in Valentia in the place lately cited. Which Fagundez in octavum Praeceptum decalogi, et in 7. Lib. 7. cap. 28. confirms with several arguments, especially from the declaration of Innocentius III. de poenitent. as Medina, Nauar. Couar. Valentia and others observe.

THE REASON is taken from D. Bonavent. locis allatis, quaest. 5. subquaest. 1. dub. 3. because the goods of a higher order are not to be restored for the goods of a lower order; but reputation is an order higher than riches: Therefore. The Major is certain; for restitution is arithmetic equality. The Minor is certain from Proverb. 22: A good name is better than great riches, and Ecclesiastici 41: Have care of a good name: for this will abide with you more than a thousand precious and great treasures, and Aristoteles 4. Eth. cap. 3. says: Honor is the greatest of external goods.

GREGORIUS de Valentia however, with Soto Lib. 1. de Iust. art. 3. ad 4. and Molina Tom. 4. disp. 702. hold that if the restitution be most grave and the loss of reputation be small, either because the woman was previously suspected or the like, the woman is bound to disclose herself, lest she squander an enormous inheritance from the legitimate heirs; for although (they say) reputation is by genus nobler than the goods of riches, yet it can be so small as to be inferior to them, in the way in which gold indeed is more precious than silver; nevertheless a tiny crumb of gold can be surpassed by a great mass of silver; Tannerus subscribes numero 434.

BUT Fagundez strongly protests num. 9. cap. 28. cum Petro Nauarro Lib. 2. de restit. cap. 2. part. 2. dub. 9. Corduba Lib. 1. quaest. 31. Vasquez opusc. de testam. cap. 5. disput. 10. Less. Lib. 2. cap. 10. dub. 7. num. 50. Malder. tract. 7. cap. 4. dub. 10. Turriano 2. 2. disp. 17. dub. 1. num. 10. et aliis.

NOR do the adversaries satisfy the argument of the Seraphic Doctor: For if they so diminish reputation as to reduce it to light matter, I do not refuse that one is bound to restore a great debt, even if it must be divulged, since one is not so prudent as to manage domestic affairs perfectly; But truly if we stand at the parity of grave reputation and money, the former is always of higher order, even if it be the reputation of a plebeian man; and in this case the similitude taken from the crumb of gold and the mass of silver is beside the point; For even in quantity, not to say in natural preciousness, gold is of greater worth; so too is grave reputation; as Fagundez num. 9. rightly noted with D. Bonavent. in speculo, cap. 1. where, citing that passage Proverb. 22. he admonishes that as light theft is venial, so is light detraction of reputation, which yields to the grave obligation of Restitution.

IT MUST ALSO BE EXPLAINED what sort of grave detriment in domestic fortune is sufficient to excuse from Restitution in the meantime; for the detriment considered as the expenditure of a large sum of money does not suffice, nor as the cessation of the profit due from that money; for this gain is not a detriment in one's own goods, but it is required that it be in the debtor's goods, either because he would fall from his station, or because he is compelled to sell his goods at a ruinous and pernicious price; for then the creditor is bound to wait, as Fagundez, Molina, Lessius, Valentia cited above note; and this is what D. Bonavent. cap. 2. speculi says, that one is bound to Restitution, provided however the possibility and opportunity be present. For such a time would be most gravely inopportune, and the creditor would exact unjustly at such a time.

THE sixth cause excusing from Restitution is the customary occupation of human life; for it is not necessary that one rise from bed at midnight, or rise from table at dinner, in order to pay, as Caietanus, Sotus, Valentia, and others commonly noted with D. Bonavent. cited above; but restitution can be deferred to a suitable time.

THE seventh cause is compensation made to the creditor in other temporal goods, either by conferring on him a burdensome temporal office, as Nauar. et Valentia say (I said temporal; for to give a spiritual one would be Simony), or by remitting to the creditor another equivalent debt, as Medina quaest. 3. et Valentia above, Tanner. num. 439. note.

THE eighth is compensation made by paying some legitimate creditor of his. So Medina, Valentia, and others.

THE ninth cause is the legitimate prescription of the thing, that is, such as it ought to be according to the canons, as Nauar. num. 85. et Valentia noted in the place cited.

TWO further causes still remain to be examined; the Prior is entrance into Religion; the Other is Cession of goods; in the former one voluntarily loses Dominion over himself; in the latter Dominion over his goods; concerning which it is certain that one validly professing an approved Religion can neither acquire anything for himself nor renounce it; But it is doubtful whether one burdened with debt can bid the world farewell and licitly pronounce the Vows of Religion; Likewise, further, whether one who is beyond possibility, since he is not able to pay, can cede to the creditor the goods he possesses, and thereafter be released from Restitution of the further debt. These I shall weigh in as many doubts.

IT IS CERTAIN that one burdened with debt sins by not restoring before entrance into Religion, if he has no impediment, as Fagundez Lib. 7. cap. 28. admonishes.

IT IS ALSO CERTAIN that, if the debts are uncertain, whose owners are unknown and cannot be known even after due diligence, and which would therefore have to be restored to the poor, such debtors can licitly enter Religion, even though, remaining in the world, they might be able to acquire wherewithal to pay. So Sanchez Lib. 4. Decal. cap. 10. Aragon. 2. 2. quaest. 68. art. 12. fol. 1044. Manuel Rodriguez quaest. Regul. tom. 3. quaest. 10. art. 9. not. 1. This however understand, as Sanchez, et Fagundez note, when the debtor himself has been constituted debtor in his own name of uncertain goods.

THE QUESTION therefore is: whether, if someone is burdened with a certain debt and has not wherewithal to pay, yet can hope to earn by his industry in the world wherewith he might pay, he can licitly enter Religion.

GERSON denies it 2. part. Tractatu de hac re, Alphabeto 39. littera X. where he reports many Parisian Doctors, et suppl. Gabriel. in 4. dist. 38. art. 2. diffic. 12. Carbo de restit. quaest. 85. dub. 3. and others as appears in Dianam part. 2. Tract. 2. resol. 41.

ON the other hand very many affirm that he can enter Religion, and therefore is not liable to restitution. So D. Thom. 2. 2. quaest. ult. art. 6. ad 3. as Caiet. Palud. in 4. dist. 38. quaest 3. art. 2. D. Anton. 2. part tit. 11. cap. 2. §. 1. Sanchez Lib. 4. Decal. cap. 19. num. 7. Rosella V. Religio 2. num. 5. et V. Restitutio 16. Angel. V. Religiosus. Sylvester. V. Religio 2. quaest. 4. Tabiena V. Religio, quaest. 11. num. 12. et ibi Armilla num. 5. Viguer. lib. instit. moral. cap. 17. §. 1. Aragon. 2. 2. quaest. 88. art. 12. ad 1. fol. 1044. Sà V. Religio, and others as appears in Dianam.

THE third opinion is the middle one, inclining toward the second, with two conditions added. The first, when the debtor, remaining in the world, would hope that he can satisfy shortly. So Sanchez Lib. 4. Decal. cap. 19. num. 8. Maior in 4. quaest. 8. dist. 17. Nauarrus, Commentar. primo, de regular. num. 8. Azor lib. 13. cap. 1. quaestio 5. Petrus Nauarr. lib. 4. de restit. cap. 4. diffic. ult. num. 28. Sylvester verbo Religio 2. and many Canonists as appears in him, Tanner. 4. quaest. 6. disput. 15. num. 444. citing Carbonem loco citato, Valentiam quaest. 6. puncto 7. Lessium Lib. 2. cap. 16. num. 22. Lopez p. p. cap. 129. But if these are asked how much time would have to be awaited, in which he might be able to earn in order to pay; Ioan. Maior answers, two years. Nauar. one year or another. Sanchez, et Fagundez stand with Maiore.

THE other condition is, when the expectation of two years is a moral hope, so that he can pay without notable difficulty, as Nauar. Sanchez, et Fagundez say. But Sanctes in cap. 2. Regulae Minorum says another year must be awaited: It is the more common opinion.¹ What D. Bonavent. thought is not hard to find. ¹ N. Editor's note: the print/OCR reads 'Est communior cum QUID senserit D. Bonavent. non est arduum invenire'; 'cum' appears to be a stray misprint, and the sentence is rendered as two statements: 'It is the more common opinion. What D. Bonavent. thought is not hard to find.'

FOR FIRST, expounding our rule cap. 2. in those words: The Ministers shall speak to them the words of the holy Gospel, that they go and sell all their things, and strive to distribute them to the poor. But if they cannot do this (he says) on account of involvement in lawsuits, let their good will suffice, whereby what is licitly ceded and all things are despised, according to that saying of Hieronymi: If you have goods of your own, sell them: if you have not, cast them away. No one about to renounce the world can well sell what he has despised so as to sell it.

THERE the holy Doctor seems to favor those who say that if some goods are entangled, in which others have rights in some way to lawsuits, or even most just claims, and he has not wherewithal to pay, nor hope of opportunity, he may cast all behind his back.

THE SAME he recalls in speculo disciplinae ad novitios, cap. 1. et in Tractatibus de paupertate, which I have read through, in which he only admonishes that they bid the world a perfect farewell and, free of any impediment of domestic goods, whether they lack them or abound in them, fly to Christ, leaving the disposition of their possessions to expert men.

THE REASON by which D. Thom. and others support themselves is that the person of a free man is not bound to creditors; but only his goods: Therefore, by ceding them he satisfies them.

AGAINST this Fagundez argues, because it would follow that, these things perishing, the right of the creditor would perish; and thus, if new resources were acquired, they would not be subject to it, nor could the debtor be thrust into prison after the sentence of the Judge had been given.

Titius, a Catholic who enters into contracts for the building of houses (building contractor), confesses that some years ago, through an error, he received from a certain man four hundred pounds more than was owed to him, concerning which matter he is now troubled in conscience. Caius the confessor asks whether he is able to restore them. Titius answers that he has nothing superfluous, that his receipts and expenses in each year are nearly equal, and that he could indeed make restitution absolutely, if it is necessary for salvation, provided that he remove two daughters from school and compel his adult son, who hitherto has not obtained employment suitable to his station, to leave home in order to support his life by labor of any kind. Caius wishes to know whether he ought to impose the obligation of making restitution in the circumstances stated. Hence it is asked:

1. Whence does the obligation of restitution arise?

2. What are the roots of restitution?

3. What causes excuse from restitution?

4. What is to be said of the case?

1. This question is answered above, p. 273.

2. This is answered above, p. 270.

3. What excuses from making restitution?

The condonation of the debt by the creditor, physical or moral impossibility as long as they last, and in England absolute discharge after bankruptcy.¹

1 Manual of Moral Theology, vol. i, p. 437.

4. The case. Titius, a contractor, was paid £400 more than was due to him. He kept the money for some years, and then asked his confessor what he was bound to do. He told his confessor that he could not now restore the money without recalling two daughters from school, and sending an adult son, who was living with him, out of the house, to make a living as best he could. Under these circumstances, Titius is not bound to restore the £400 at once. The daughters have a right to receive the education which is usual in their condition of life, and the son should not be turned out on the streets. If Titius tried, he might be able to lay by £10 a year, and thus pay off by degrees a large part of the debt. If he can do anything like this, he will be bound to do it.

Case.—The Curate of X. was called hurriedly to a dying man, whom we may call Paul. In his confession Paul said that one thing especially gave him great worry, namely, the fact that he had misappropriated property. Many years ago, while he was bookkeeper for a merchant, and pressed for money, he had taken two hundred dollars, and the theft had never been noticed. Now, however, he intended to set this matter right in order that he might die in peace, but not knowing how to go about it, he asked the curate if he would not settle the matter for him. In order to put the dying man at ease the curate said he was willing to help, and Paul should give him the money so that he might be able to restore it. Paul now explained that he was possessed of only half the sum defrauded, and for the other half the curate should turn to his heirs, namely his wife and two grown children. He would leave this matter to the prudence of the confessor, but begged that his good name might be spared. He had always had the reputation of a man of honor, and his wife and children must never find out that the departed husband and father had been a thief. The curate, seeing that the man was in his last moments, promised to attend to this point, and administered the sacraments. There now remained the question of the restitution, and this gave the curate no little trouble and anxious thought. On the one hand, he was to help the merchant regain his money, on the other hand, how could he recover it from the heirs without hurting the good reputation of the deceased.

Question.—What is to be done in this difficulty?

Solution: 1. That the curate is entitled by the instructions of Paul to apply to the heirs, there can be no possible doubt, for “the heir, together with the goods, also takes upon himself all the debts and real burdens of the deceased” (Lehmkuhl, Theol. Mor. I. n., 1157, IV). But how could this demand be made of them without jeopardizing the honor of the deceased? In our case this could be effected only under the title of a legatum pium, which Paul could be said to have intrusted to his confessor, the curate, the latter to make use of it according to his own judgment. This would not be an untruth on the part of the curate as, according to the Moralists, that which a testator wills for the repose of his soul, or to set right a wrong that evidently entails a restitutio facienda, may be regarded as a legatum pium, in so far at least as it is as binding upon the conscience of the heirs as a really pious bequest.

2. Another question, now to be taken into consideration is, whether it is prudent to make a demand under this title upon the heirs, and from this follows the further question, whether restitution in our case is morally possible. Let us here leave out of consideration the fact that a demand of this kind, even under the guise of a pious bequest, may arouse the suspicion of the heirs that there was some wrong-doing on the part of Paul that is to be righted. Let us not speak even of the embarrassment in which the curate will be placed should he be questioned by the heirs as to the application of the legatum pium. Let us ask, would it not be an awkward thing for the curate to make such a demand from the heirs, especially if perhaps some legatum pium is already mentioned in the will? And will he be believed if he states that Paul made this legacy entirely of his own free will, and without any inducement on the curate’s part? The mere suspicion of legacy-hunting is harmful, and calculated to bring it about that the spiritual activity of the priest at the bed-side of the sick and dying will be regarded with suspicion and mistrust. This is all the more likely as in cases of this kind even good Catholics are wont to become suspicious, especially if they consider themselves injured in their inheritance. The admonitions given in Pastoral Theology to priests and confessors not to interfere in matters pertaining to wills and legacies, but to restrict themselves conscientiously to their care for the soul, are full of wisdom. In our case such interference did not exist, either directly or indirectly, yet for reasons of pastoral prudence we would strongly advise the curate not to present such a request to the heirs, even though the merchant may receive back only half of the money due him.

3. It is evident that the curate is not bound to make good the other half of the sum ex propriis. He has fulfilled his duty towards the merchant. As confessor he has undertaken the restitution in Paul’s stead, but it is no fault of his that he can do so only in part. Or can it be that as Paul’s representative he is bound to do more than Paul himself could do? According to a universally accepted principle Paul is excused entirely, or at least partially from restitution if a moralis impotentia exists. The curate is similarly placed, because the restitution of the second half of the sum is for him beset with such difficulties that these constitute a true impotentia moralis, which relieves him from any further obligation in the case.

4. It cannot be said that the curate was responsible for this inability by imprudently undertaking the execution of the restitution. Under the circumstances, he could not have acted differently, as there was not a moment to be lost if Paul was to receive the last sacraments, which was far more important than the whole matter of restitution. But, even though there had been sufficient time, if the curate by not exercising sufficient prudence and foresight arranged the matter of restitution prejudicially to the merchant, even then he would not be obliged to make restitution, as in this case he would have been wanting in charity but not in justice. As confessor he was not concerned in the first place and ex officio with the bonum vel damnum temporale tertii, but with the bonum vel damnum spirituale of the penitent.