Summa summae S. Thomae, Tomus III

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

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

First cause. Inability.

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

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

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

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

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

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

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

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

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

[Make an exception when the owner is cast into extreme necessity precisely because of the subtraction of the thing taken; for to take from someone a thing necessary for the preservation of life is the same as killing him. Therefore, in this case, the condition of the owner who first possessed must be judged the better. ¹]

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

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

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

[If, however, the debtor has fallen into such straits through his own fault, he must impute to himself that he can now no longer make satisfaction without losing his state; and if an equal loss threatens the creditor from the delay, since his condition is the better, the debtor ought to bear it. ²]

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

Second cause. Cession of goods.

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

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

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

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

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

Cession of goods is either 1° voluntary, that is, freely accepted by all the creditors — and then it has those effects on which the debtor and the creditors agree; or 2° judicial, declared by the sentence of a legitimate judge. This latter kind is a certain benefit granted by the law itself to the unfortunate debtor of good faith, so that, notwithstanding any other stipulation to the contrary, he may be delivered from the molestations of his creditors. ³

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

Furthermore, by a cession of goods effected without fraud the obligation to restitute is indeed suspended, but not taken away. 1° It is suspended, both in the internal forum, on account of inability, and in the external forum, by concession of the creditors or by benefit of the law. 2° It is not taken away; because, unless it be elsewhere established otherwise, neither the law ⁴ nor the creditors intend to remit to the debtor what has not yet been paid. Hence, if better fortune later comes to the debtor, he is held to pay the remainder of the debt ⁵; indeed he ought, as far as he can, to labor so that he may be able to satisfy the payment integrally.

It must be noted that this obligation can be extinguished by prescription, like the others, through thirty years, if the creditors have neglected during this lapse of time to demand payment. Indeed it could be extinguished in a shorter time, by the common interpretation of the law which, in view of the public good, can transfer dominion, just as legal prescription does; which is asserted, not improbably, to be admitted in England ⁶ and in North America ⁷.

By the cession of goods the right of the debtor to suitable support for himself and his household is not destroyed. For he is not in a worse condition than the other debtors, for whom the need of their family is a just cause for deferring restitution. ⁸]