Debt & Creditors

An instrument of debt found in the debtor's possession is presumed paid.

Chirographum apud debitorem repertum praesumitur solutum.

Source: Halk. Max. 20; BL4 "Chirographum"; Jackson 107

Possession of the evidence of debt by the debtor raises a presumption of satisfaction — the creditor who surrenders the instrument is taken to have been paid. (Duplicate maxim — see also 11.2.12.)

An instrument of debt not in existence is presumed discharged.

Source: Tray. Leg. Max. 73; BL4 "Debt"; Weisman, 28b

(English-origin maxim.) When the evidence of a debt cannot be produced, the law presumes satisfaction — the burden shifts to the alleged creditor.

Under the term "creditors" are included not only those who have lent money, but all to whom, from any cause, a debt is owed.

Sub nomine creditorum veniunt non tantum qui pecuniam crediderunt, sed omnes quibus ex qualibet causa debetur.

Source: Dig. 50, 16, 11; Weisman, 28c

The word "creditor" extends beyond lenders to every person who holds a lawful claim — including the People as beneficiaries of the public trust.

The refusal of money tendered releases him who tenders it.

Recusatio oblati liberat offerentem.

Source: 9 Co. 79a; Weisman, 28u

A lawful tender discharged and refused extinguishes the obligation — the creditor who refuses lawful payment loses his claim to compel it.

Whatever is paid is applied according to the intention of the payer.

Quicquid solvitur, solvitur secundum modum solventis.

Source: 2 Vern. 606; Bouv. 152; Weisman, 28s; Weisman, 35d; Weisman, 48j

The payer directs the application of his payment — the creditor cannot redirect it to a different obligation without the payer's consent.

The rights of creditors can neither be taken away nor diminished by agreements among the debtors.

Debitorum pactionibus creditorum petitio nec tolli nec minui potest.

Source: Broom, Max. 697; Jackson 175; Weisman, 28z

Debtors cannot conspire to defeat their creditors' claims — private arrangements among those who owe do not bind those who are owed.

In all obligations when no time is fixed for the payment, the thing is due immediately.

In omnibus obligationibus in quibus dies non ponitur, praesenti die debetur.

Source: Dig. 50, 17, 14; Bouvier, *Law Dictionary* (1856); Weisman, 28p

Where the parties fix no date for performance, the obligation is presently due — the debtor cannot shelter behind silence on the question of time.