What excuses from restitution

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

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

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

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

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

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

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

Condonation is not undeservedly presumed:

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

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

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

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

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.

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.

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.

601. 2. Corollaries. (A) If the debtor cannot restore without falling from his own state justly acquired, he can defer restitution; thus merchants, magistrates, etc., who, by immediately paying debts, would lose their business or office. This probably is extended to those who by their own fault, by gambling, drunkenness, have incurred this necessity. Yet upon all these the obligation is incumbent of diminishing their expenses and diligently working, so that they may be able to restore as soon as possible.

This privilege is not extended to those who, according to public estimation, have acquired their state unjustly, e.g., by robbery or a supposed testament: for these, by immediately restoring, do not fall from their state, but rather return to their former state.

602. (B) If the debtor cannot immediately restore without suffering great damage in goods justly acquired, e.g., without selling his possessions for a much lesser price than they are worth, - or without depriving himself of an instrument necessary for working, etc., he can defer restitution.¹

¹ Hence in most regions workers cannot be compelled to sell instruments necessary to their art; and in some, the paternal house cannot be alienated for paying debts, except under altogether special conditions. Thus, on July 12, 1909, in France, a law was promulgated "on the constitution of an unseizable family good," whose text you will find p. 224*.

(C) The same must be said if the debtor cannot immediately restore without grave damage in goods of a higher order, whether of body or of soul; because, namely, he would deprive himself of money necessary for recovering health, or would expose himself or certain members of the family to danger of sinning.

603. (D) On this occasion it is asked whether one burdened with debt can enter religion before he has restored? - According to the principles explained above, he can indeed enter religion if otherwise he is situated in grave danger of losing his soul; but, even after entrance into religion, he must do all things suitable to his state, so that he may earn what is necessary for paying debts. But since, in our days, there are many inconveniences in accepting debtors of this kind, Prelates ought not to admit them: for it is better that these, by working strenuously, first pay debts; and afterward enter religion without disgrace.

Besides, Sixtus V prohibited those who by their own fault had contracted debts from entering religion, and decreed their profession invalid; Clement VIII abrogated this constitution as regards the nullity of profession, but not as regards the prohibition itself; from the Code, those burdened with debt, who are not able to pay, are illicitly but validly admitted to the novitiate.²

² Sixtus V, Constit. Cum de omnibus, November 26, 1587, Bullar. Roman., t. IV, part IV, p. 371-372; Clement VIII, Constit. In suprema, April 2, 1602, ibid., t. V, part II, p. 410; Code, c. 542, 2°.

604. (E) When the debtor, in these various cases, has deferred restitution, is he bound to compensate ceasing profit or arising damage which the creditor has suffered from this? It is controverted among theologians; for the matter to be solved fairly, a distinction must be made:

(a) A debtor from delict, that is, a possessor in bad faith, or an unjust damager, must compensate all these things, because he is held concerning damage unjustly inflicted; but even if from a just reason he has deferred restitution, he was culpable in the cause, since already previously he ought to have restored.

(b) But a debtor in good faith is not bound to compensation according to many, provided he is not in culpable delay: for he is not the unjust and culpable cause of this damage. Yet today this cannot be accepted without restrictions. For, as soon as he knows that the thing is not his own, he could not legitimately receive the natural fruits except on that condition, that he render them to the owner, and therefore he must pay legal increase. Besides, if he foresaw that the owner would suffer certain damages from the delay, it seems to us that he could not keep the thing except on that condition, that he repair these damages as soon as he could furnish this without grave inconvenience; - but if he foresaw nothing, under this head he is not bound to restitution.

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.

243. The causes principally excusing from restitution for a time are temporary inability and cession of goods.

Temporary inability is either physical or moral. The former is present when the debtor has nothing from which he can make restitution; e.g., someone burned another's house and, on account of this crime, is cast into prison for ten years. Since he possesses no goods and cannot acquire new goods during the time of imprisonment, he is in a physical impossibility of making restitution, and consequently is excused, at least for a time.

Moral inability is present when grave damage would arise from restitution for the debtor or even for another person. But this damage which would arise must be much graver than that which arises for the creditor from the omission of restitution. This is evident of itself, because the creditor reasonably demands his goods, which he cannot lack without grave damage. Nevertheless, if the debtor by making restitution would fall into extreme necessity, he is not bound to restitution, even if the creditor, through the omission of restitution, should be in grave necessity.

Corollaries. An inability to make restitution is present:

1. If the debtor, by making restitution, would fall from his justly acquired state, e.g., from the state of a merchant to that of a servant, he can defer restitution; nevertheless, he must labor more diligently and diminish his expenses, so that he may be able to make restitution as soon as possible.

2. If the debtor, by making restitution at once, would suffer notable damage which would probably be avoided through delayed restitution, he is excused for a time; e.g., a merchant bound to restitution is not held now to sell his merchandise at a lower price in order to have money for making restitution, if there is hope that the price of the merchandise will soon be increased. Likewise, a workman is not held to sell the instruments necessary for working in order to pay his debts.

3. If restitution cannot be made without damage in goods of a higher order, e.g., without danger to reputation and honor, as if an adulterous wife cannot repair the damage caused without great infamy to herself. - On this occasion it is asked whether one burdened with debt can enter religion before he has made restitution. The answer is to be given with several distinctions: a) If within a short time he can satisfy the obligation of restitution, he is altogether bound to defer entrance into religion until after restitution has been made. b) If there is no founded hope that restitution can be made within several years, it must be seen whether the creditor is known and whether he knows or probably will come to know the debtor. In this case the debtor cannot enter religion, both because ecclesiastical law¹²² gravely prohibits those who are burdened with debt from being received into religion, and because, on account of civil laws, the greatest inconveniences and scandals for religion and for the Catholic Church can easily arise. But if the creditor is unknown and there is no danger that the debtor will afterwards be discovered, then entrance into religion seems lawful.¹²³ The reason is that otherwise this man would suffer great spiritual damage through omitted entrance into religion, and moreover even after several years he will be incapable of making restitution. But the creditor, as being wholly unknown, suffers no damage if restitution is omitted. Finally, as is supposed, inconveniences and scandals for religion cannot arise. - But if someone having an obligation of restitution has deceitfully entered and been professed in religion, the profession is indeed valid, but the religious institute is not bound to pay the debts contracted by its subject. The religious, however, is obliged to satisfy the creditors in the best manner he can.

4. If it is foreseen that the owner will abuse the thing to be restored for sin or for the unjust damage of a third party.¹²⁴

¹²² Clement VIII, Constitution In suprema, 2 April 1602; and the Code of Canon Law, c. 542, n. 2, establishes: "Those burdened with debt who are not able to pay are illicitly, but validly, admitted to the novitiate."

¹²³ Cf. S. theol. 2, 2, q. 189, a. 6 ad 3.

¹²⁴ Ibid., q. 62, a. 5 ad 1.

244. Cession of goods is said to be that act by which a debtor, unable to pay in full, cedes his goods, so that the creditors may receive at least according to some proportion the money owed to them.

1. A twofold cession of goods is distinguished: judicial and extrajudicial. Judicial cession is had when either the debtor himself (judicial cession strictly so called) or one of his creditors (necessary cession) denounces to the judge the debtor's inability to pay. Extrajudicial cession, however, is a cession of goods offered by an insolvent debtor and freely accepted by the creditors. This extrajudicial cession is wont to have place when the debtor, without any fault and from mere misfortune, has been reduced to straits in paying and gives hope that he will pay later; or also in a case in which, through judicial cession, the creditors would suffer even greater damage.

2. Cession, both judicial and extrajudicial, can on the part of the debtor be either culpable or fraudulent, or inculpable.

245. Principle 1. The statutes of civil laws in the judicial cession of goods ordinarily seem to oblige in conscience, so that their violation easily induces an obligation of restitution.

Thus the common opinion. The reason is that those statutes are just determinations of natural law, preserving in the best manner they can the rights of the individual creditors and avoiding excessive harshness toward the debtor. Therefore, it is not lawful for the debtor secretly to withdraw goods, nor to enter contracts, make donations, etc., prohibited by civil law.

246. Principle 2. A debtor ceding his goods can, by both natural and positive law, retain for himself those goods which are altogether necessary for decent and humble support, and indeed also those goods which are necessary means for beginning a new small business. The same holds for the debtor's wife and children.

The reason is that everyone has a right to fitting support, since no one is held to beg.¹²⁵

¹²⁵ Cf. Billuart, De iure et iust. diss. 8, a. 20.

247. Principle 3. Every cession of goods of itself does not extinguish the obligation of restitution in conscience, but only suspends it for a time.

The reason is that the creditors consent only under compulsion to receiving merely a part of the goods owed to them. Consequently, if the debtor afterwards is again able to make restitution, he is ordinarily bound to indemnify all the creditors.¹²⁶ I say, however: he is ordinarily bound. For if the civil laws of some region not only exclude the creditors' judicial action, but also render the debtor altogether immune from every future obligation of making restitution and paying, the creditors are considered to consent to these laws and to renounce their rights. Crolly contends that the laws of England are of this kind.¹²⁷ Civil laws, however, seem truly able to extinguish every obligation of paying debts, since this is sometimes very useful for the employment of diligence in commerce. But all theologians teach that the obligation of restitution always remains when the cession of goods was made fraudulently or with grave fault through negligence in administering the goods.

¹²⁶ Cf. Billuart, De iure et iust. diss. 8, a. 20.

¹²⁷ De iure et iust. III, n. 1232; cf. Stephen, Commentaries on the Laws of England II, 183 (ed. 11).

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.

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.

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.

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.

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.

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.