Condonation

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

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

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

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

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

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

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

Condonation is not undeservedly presumed:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Second cause. Remission.

Remission, which takes away the obligation of restituting, is the free forgiveness of a debt made by a creditor able to forgive, that is, who holds dominion and administration of the thing owed to him. Many say that the remission must also be spontaneous. But it seems to us that it certainly suffices for it to be free; for, if the creditor is brought to forgive the debt by prayers and solicitations which leave his liberty intact, there is no doubt that he validly transfers the dominion of the thing to the debtor.

Express remission is not always required, but tacit suffices, or even presumed, provided it be morally certain. So it is commonly held. The reason is that, for accepting and keeping another's property without injustice, a positive will of the owner is not required, but it suffices that he not be positively unwilling. ⁴⁵⁵ If, however, the owner must be judged unwilling only as to the manner of acquiring, since his right is violated in some way, the fault cannot be excused from venial. ⁴⁵⁵ Id., ibid., quaer. 1°.

How remission is made in the external forum must be seen in the various Codes. ^{456 456} Cod. Gall., art. 1282-1284 ; Ital., art. 1280.

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

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

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

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

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

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

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