1783. Coperators in damage are bound to rest.i.tution either _in solidum_ or _pro rata_.
(a) Thus, they are bound _in solidum_ (i.e., jointly and severally) for all the loss when they are total causes of the damage, But the princ.i.p.al cause is bound absolutely, the secondary or equal cause only conditionally, that is, the princ.i.p.al must pay all the rest.i.tution himself, the others must pay all only when the princ.i.p.al or other a.s.sociates fail to do their duty.
(b) They are bound _pro rata_ (i.e., each one according to his share) when they are only partial causes of the damage. The obligation of rest.i.tution _in solidum_ should not be imposed, if it is uncertain, or if the coperator is in good faith and the admonition would only produce harm.
1784. The order of rest.i.tution among coperators in injury is according to the priority of the obligation of one to that of another, in the sense that one is obliged to pay all and the other is obliged only in the former"s default. This order of priority in obligation is in force when many coperators are bound _in solidum_ and when they coperated in different ways (e.g., one as possessor, another as advisor, another as performer, etc.). The order generally given by moralists is as follows:
(a) the possessor is bound first of all, since he has the goods of another and the goods call for their owner;
(b) the coperators are bound next in the following order: the originator (such as a perpetrator acting in his own name, or a mandator); the perpetrator acting in the name of another; the others who aided the commission of the act (such as advisors, flatterers, etc.); those who did not prevent or resist injustice.
1785. The obligations of coperators when rest.i.tution in full is made by one of their number, or when condonation of debt is made to one of their number, are as follows: (a) if rest.i.tution was due _pro rata_, the other coperators must indemnify their a.s.sociate who paid all, or must pay their shares to the injured party who gave condonation only to one of their group;
(b) if rest.i.tution was due _in solidum_, payment by or condonation to a princ.i.p.al cause frees the secondary causes; but payment by or condonation to a secondary cause does not exempt a princ.i.p.al cause, and the latter is still held either to the secondary cause or to the injured party, as the case may be; payment by or condonation to an equal cause does not exempt the other equal causes.
1786. The person to whom rest.i.tution must be made is the person whose strict right has been violated, or, in his absence, it is society. But the following cases should be distinguished:
(a) when the injured person is known for certain and his right is certain, rest.i.tution should be made to the injured person or his representatives or successors, or, if this is not possible, to charitable or pious causes;
(b) when the injured person is entirely unknown, if the one who is the cause of the loss is in good faith, his obligations are those of a possessor in good faith; but if he is in bad faith, the common opinion is that he is bound, at least from customary law, to make rest.i.tution by giving to the poor or to religion;
(c) when the injured person is partly unknown, the person who is the cause of the loss should make rest.i.tution to the best of his ability.
If the doubt extends to only a few persons (say four or five), any one of whom may be the injured person, rest.i.tution should be divided in the best way possible among these persons; if the doubt extends to many, but the injured persons were only a few, it seems that rest.i.tution may be made by giving to charity or religion either in the place of the injury or elsewhere; if the doubt extends to many, and the injured persons were many inhabitants of the locality, rest.i.tution must be made if possible to the injured parties themselves, otherwise to some public cause of the local community.
1787. Order of Preference Among Creditors.--The natural order of preference is to be shown to creditors when the debtor is unable to pay them all.
(a) Those who have a right _in re_ (e.g., those whose property is held by the debtor) have precedence over those who have only a right _ad rem_ (e.g., those who are creditors from contract).
(b) Creditors from onerous contract or delinquency, it is generally admitted, have priority over creditors from gratuitous contract.
(c) Creditors from delinquency and creditors from onerous contract, according to what seems to be the common opinion, are equal in rights and should be settled with _pro rata_.
(d) Debts that are certain have priority over debts that are uncertain, according to some; others deny this, but admit that the uncertain debts need be paid only in proportion to their probability.
(e) Creditors who are certain are by some preferred to creditors who are uncertain; but others think that payment to the poor, in place of the unknown creditor, is the latter"s presumed will, and that it has an equal standing with debts owed to known creditors.
(f) Poor creditors have no just claim to preference over rich creditors; but charity dictates that, when the poor creditor is in distress, he should be given the preference.
(g) Earlier creditors have a preference over later creditors in a real claim, but it is disputed whether this holds also in a personal claim.
(h) The creditor who asks for a settlement sooner has a preference, if the pet.i.tion is made juridically, and perhaps also if it is made privately.
1788. The order of preference among creditors according to civil law is generally as follows: (a) proprietary creditors (i.e., those whose property is held by the debtor); (b) privileged creditors (i.e., those whose debts have a special urgency, such as judicial expenses, doctors"
bills, wages for hired help, living costs, etc.); (c) hypothecatory creditors (i.e., those who have claims against the property of the debtor, in the form of liens, mortgages, etc.); (d) common creditors (i.e., all those who are paid after the previous creditors have been satisfied). American law contains provisions in regard to dispositions of property made during the four months before bankruptcy is tiled, so as to protect the creditors of a person who is insolvent. The property of a bankrupt is placed in the hands of an a.s.signee and allowance is made for the debtor"s needs and perfected liens (i.e., charges legally made upon property for debt). The property is then subject to levy by the creditors as follows: maintenance expenses, legal fees, costs of administration, wages of workmen, taxes, debts having priority under Federal or State law.
1789. The "Thing" to Be Restored.--(a) In case of unjust possession, the identical object must be restored, if it has an individual value; otherwise it may be restored in its equivalent. (b) In case of contract, the identical object must be restored, if that is the agreement (e.g., in loan of a chattel, or deposit), otherwise it may he restored in its equivalent (e.g., in loan of money).
1790. The "Amount" of Rest.i.tution in Certain Cases.--(a) When an Object Had Various Values During the Time of Its Possession in Bad Faith.--If the change was from an internal cause and was for the better (e.g., the calf stolen by a thief has become a cow), the return must be made in the improved state; if the change was from an internal cause, and was for the worse but would have happened in any case (e.g., the cow taken by the thief has become old), return must be made in the actual state; if the change was from an internal cause and for the worse, which would not have happened had the object remained with the owner (e.g., a cow taken by a thief has become lame on account of the thief"s carelessness), return must be made also for the deterioration. If the change was from an external cause (e.g., the wine taken by a thief has risen and declined in value several times), it seems that practically nothing more can be imposed by way of rest.i.tution than the value the object had when taken.
(b) When Unjust Damage has been Done.--If the damage was caused positively, the injured person must be indemnified entirely, if the damage was caused negatively, the injured party should be indemnified more or less according to the reasonable expectation he had of the gain of which he was deprived.
1791. The "Manner" of Making Rest.i.tution.--The general rule is that it should be made in such a way that the injury will be repaired and the injured person indemnified for his loss. Generally speaking, there is freedom of choice as to various forms in the modes of rest.i.tution.
Thus, it may be made publicly or secretly, directly or through an intermediary, positively (by payment) or negatively (by cancellation of a debt). It may even be made without the knowledge and intention of the parties. (a) Thus, the injured party may be compensated, even though he is unaware that he was cheated or that he is being paid back; (b) the offender may restore, even though he does not know he is doing so (e.g., if he pays while intoxicated), and probably even though he has no express intention of doing so (e.g., if he makes a present of $10, and then remembers that he owed damages to the amount of $10).
1792. Second Rest.i.tution.--Natural law must be applied to certain cases in which rest.i.tution sent through an intermediary perishes on the way through no fault of the debtor. (a) If the debt is owed on account of possession in good faith, the debtor is not bound to a second rest.i.tution. (b) If the debt is owed on account of contract, the goods perish to the owner. Thus, if the contract was one of loan, the loss must be borne by the lender; if it was one of sale, by the seller. (e) If the debt is owed on account of delinquency, there is an obligation to a second rest.i.tution, unless the injured party a.s.sumed the risk of transmission. It is held as probable that the choice of the confessor as intermediary for rest.i.tution has the consent of the injured party, and hence that, if the rest.i.tution perishes on the way through chance or the fault of a third party, there is no duty of second rest.i.tution.
1793. The "Time" When Rest.i.tution Must Be Made.--(a) Internal rest.i.tution, or the purpose of restoring, must be made at once, that is, as soon as one adverts to the necessity of this resolve. (b) External rest.i.tution, or the fulfillment of the resolution, must be made at the first suitable opportunity.
1794. Unjust Refusal to Make Rest.i.tution or Pay Bills.--(a) Those who unjustly refuse to make rest.i.tution or to pay their bills at the proper time are guilty of mortal or venial sin according to the damage their refusal causes to the creditor. (b) They are not worthy of absolution if there is serious bad faith on their part, as when they have many times broken their promises, or when they refuse to pay even the part or installment which is within their power. (c) They are bound to additional damages for the losses caused by the unjustifiable delay.
1795. The "Place" Where Rest.i.tution Must Be Made.--(a) He who is a debtor on account of injury must make rest.i.tution at the place where the thing would be were it not for the injury. (b) He who is a debtor on account of possession in good faith should notify the owner where the property is, but he is not obliged to bring it to the owner. (c) He who is a debtor on account of contract must abide by the agreement, or by the statutes that regulate the contract. Thus, in this country the place of delivery in sales is according to law the seller"s place of business or his residence.
1796. Burden of Expense or Loss When Rest.i.tution Is Sent to the Place of the Creditor.--(a) If the obligation of rest.i.tution arises from injury, the debtor is generally bound to pay the transportation and to stand the loss when the goods perish in transit. (b) If the obligation arises from contract, the expenses and losses must be borne according to the agreement.
If nothing was stipulated, it seems equitable that the expenses of transportation be borne by the party who benefits or who requested the contract. According to the Sales Act in the United States, the seller is the loser when goods perish in transit, if a place of delivery had been agreed on; but the buyer is the loser when in pursuance of the contract the goods had been delivered to a carrier for transmission to the buyer (see 1888 d).
1797. The Causes That Excuse Temporarily from Rest.i.tution.--These causes can be reduced to two, namely, physical and moral impossibility.
(a) Physical impossibility exists when the debtor has not the means to pay and cannot secure them; and it excuses as long as it continues. One who is bankrupt is excused from rest.i.tution during the continuance of his insolvency; if he later becomes able to pay, it seems to some that the civil declaration of bankruptcy according to the law of the country releases him from further payment, unless his bankruptcy was fraudulent or due to culpable neglect. (b) Moral impossibility exists when the debtor has the means, but cannot pay immediately without incurring a loss of a higher order (e.g., if he pays the small sum of money, he will lose his own excellent reputation), or without suffering a greater loss in his own goods of the same order (e.g., if he pays the money, he will be reduced to starvation), or without surely bringing on a far greater evil than delay of rest.i.tution to the creditor or a third party (e.g., if a stolen weapon is returned to its owner, he will commit suicide or murder).
1798. The Causes That Excuse Permanently from Rest.i.tution.--These causes can also be reduced to two general ones, namely, the cessation of the object and the termination of the obligation through the act of the creditor, or of the debtor, or of authority.
(a) Thus, the cessation of the object releases from the duty of rest.i.tution whenever the object perishes to its owner, as when it is lost by a possessor in good faith who has not been enriched by it, or even by a possessor in bad faith, if it would have been lost equally by the owner (see 1771, 1774).
(b) The termination of obligation through the act of the creditor occurs when the creditor freely and lawfully excused the debtor from payment. In some cases condonation may ordinarily be presumed, either on account of the affection of the creditor for the debtor (e.g., in case of debts owed by children to their parents) or on account of the familiar relationship between the parties and the smallness of the debt (e.g., in case of appropriation by servants or employees of some unimportant articles not kept under lock and key), or on account of the indigence of the debtor and the smallness of the damage (e.g., in case of trifling harm to goods of a wealthy person, if there was no great malice and the debtor is very poor).
(c) The termination of obligation is also effected by equivalent payment, which in certain cases is made by payment of the creditor"s creditor, or the cancellation of an equal debt owed the debtor by the creditor, and perhaps also by a gift made the creditor by the debtor and equal in value to the debt. Occult compensation by the creditor is the secret taking by him of what he is ent.i.tled to when the debtor will not give it of his own accord. This is lawful when the debt is certain, other means of recovery impossible, and the compensation not injurious; but it covers rest.i.tution, and hence the creditor cannot accept another payment from the debtor.
(d) The termination of obligation is also effected by the act of competent authority. Thus, judicial declaration frees from the duty of rest.i.tution a person who has lawfully and in good faith received certain goods as damages or award; prescription (see 1875) gives a clear t.i.tle to property held by adverse possession over a certain number of years, and it frees from the duty of payment, at least in certain cases (though not in the United States); papal composition for good reasons exempts from their obligation those who owe rest.i.tution to pious causes or to church property injured by them.
1799. Condonation of the domestic thefts of wives and children of the family cannot be presumed in all cases (see 1903).
(a) Thus, if the things stolen are articles of food and drink (or tobacco), and were consumed by the members of the family, there is no duty of rest.i.tution, since the father or husband is then unwilling, not so much that these things should be taken, as that they should be taken furtively.
(b) If the things taken do not fall under the cla.s.s of eatables and are still in the possession of the thief, they should be restored. Hence, if a son steals money from his father in order to have the means for debauchery, he must give back that money.
(c) If the things taken were not eatables, but were of great value and have been consumed or alienated, it will depend on circ.u.mstances whether rest.i.tution is obligatory or not. Thus, if the father thinks much of the son who took the money and the family does not miss it much, condonation may perhaps be taken for granted; but if the son is not on good terms with his father, or if the theft is very harmful to the family, rest.i.tution may be due.
1800. Excuse from Rest.i.tution on Account of Doubtfulness of Obligation.--(a) One who doubts positively and in good faith whether or not he did damage to another is excused from rest.i.tution if the doubt is about the fact of the damage (e.g., whether his compet.i.tor lost business) or about his own culpability (e.g., whether he circulated a calumny about his compet.i.tor); he is probably held to rest.i.tution _pro rata_ of the doubt, if the doubt is about the responsibility of his culpable act for the damage that followed (e.g., whether his calumny or the poorness of the compet.i.tor"s wares caused the falling off in business); he is probably held to only his share, if the doubt is whether his culpable act was responsible for the whole or only a part of the damage (e.g., whether his calumny caused all the damage, in view of the fact that others were also spreading calumnies).
(b) One who doubts positively and in good faith whether the rest.i.tution owed by him has been paid (e.g., whether his fellows in calumny have paid their portions of rest.i.tution, whether he has paid a bill for goods or services received) is held to full payment by some, to part (_pro rata_) payment by others, to nothing by others. Some moralists think the presumption favors the creditor, others that it favors the debtor, others that it favors neither and that a compromise is the right solution.
1801. Doubt does not excuse rest.i.tution in the following cases: (a) when it is merely negative and the presumption is against the doubter (e.g., when a person knows that he purchased and received goods, but does not know whether or not he paid for them, and has no reason to think he did pay); (b) when it is in bad faith, that is, knowingly or intentionally produced (e.g., when two men simultaneously fire at a neighbor"s cow, knowing that it will thus become impossible to determine the author of the damage).
1802. Special Cases.--There are some special cases of rest.i.tution for negative injury in thwarting another"s prospects, or for positive injury to goods of fortune, of body, of soul, or of spirit.
(a) For Frustration of Another"s Good.--Rest.i.tution is due for keeping another from a good to which he has a strict right (e.g., an office to which he has been chosen, property for which he has paid), or for using force, fraud, bribes, or other unjust means to keep another from a good to which he has a non-strict right (e.g., a position for which he has made application, a gift which another contemplates bestowing on him).
The amount of rest.i.tution should be calculated according to the previous probability of success on the part of the injured party and the permanent results of the injury.
(b) For Injury Done to Goods of Fortune.--Private injuries are spoken of elsewhere (see 1762 sqq.), and now we consider only injuries that are in some way public. Commutative injustice entailing rest.i.tution to the community is committed by damage to public property, breach of contract made with the community, unjust means employed to prevent the government from obtaining its dues, unjust coperation in any of the aforementioned acts; commutative injustice entailing reparation to individuals is committed when the transgression of a law places an undue burden on a fellow-citizen (e.g., when one unjustly escapes military or jury service and causes a subst.i.tute to be called who would not have been called otherwise, or when one unjustly evades one"s taxes and thereby certainly causes the taxes of others to be raised). If a tax law is just, it obliges in conscience, but whether as penal or preceptive, whether in virtue of legal or commutative justice, is a much debated question; and hence the question of sin and of rest.i.tution due is not easily settled. Impossibility or a general and admitted custom excuse from rest.i.tution (see 2637 sqq.).