On the restitution to be made by a possessor in bad faith

You will ask 1° what, and how much, the possessor in bad faith is held to restore.

I answer. The possessor in bad faith, beyond the fact that he is bound to restore all those things to which we said the possessor in good faith is bound by reason of a thing received, namely the existing thing, all natural, mixed and civil fruits still existing, or that by which he was made richer by these, is moreover bound, by reason of an unjust acquisition, to restore : 1° the value of the thing, in whatever way, even by chance, it perished; 2° all fruits, except industrial ones, which he himself received, even if the owner would not have received them, or which the owner legitimately received, even if he himself did not receive them, whether they exist or not, whether he was made richer by them or not; 3° all ceasing profits or ensuing damages to the owner from the unjust acquisition or detention of his thing. Because the unjust possessor, through the unjust acquisition and detention of another's thing, is the voluntary cause of all these damages, and is bound to repair the justice and equality which he thus voluntarily violated; but this reparation cannot be made except by the restitution of all the aforementioned things.

But these things are to be understood so long as the thing exists, whether it remain with the unjust possessor, or pass to anyone else in any way whatever. But when the thing no longer exists, it no longer fructifies to its owner, and then the unjust possessor is not held to restore the fruits which would be received if it still existed, except in the case where it would have remained longer with the owner and he himself would have received further fruits from it; for then the unjust possessor is held to restore even those according to the measure of the hope, because he is also the cause of that damage or ceasing profit.

You will ask 2° whether the possessor in bad faith is held to render the value of the thing if it perish with him, certain to perish with the owner.

I suppose as certain among all that, if the thing were going to perish with the owner through the injury of a third party, the thief or unjust possessor is held to restore : v. g., you kill the horse of Caius which Titius would certainly have killed, you steal and consume wine which another thief would equally have stolen away had it remained with its owner; you are bound, because, as the other by stealing contracted an obligation of restoring, so you, by stealing earlier, contract the obligation earlier.

But the difficulty is in the case where the thing perishes with the possessor in bad faith, certain to perish in the same way and at the same time with its owner : v. g., you stole a horse, which dies with you, about to die in the same way with its owner; sailing on a ship, you stole away the goods of another, and a storm arising, all the goods perish together with your theft. Are you bound to restitution of the value of the horse or of the goods? Some affirm, others deny. Therefore I think a distinction must be made. Whence

I answer. Either the thing manifestly appears certainly about to perish within a short time, or it does not appear manifestly. If the first, the possessor in bad faith is not bound to restore; if the second, he is bound.

The first part I do not think can be denied by anyone; because in that case the thing has no value whatsoever, and it is morally held as lost: whence no damage follows to the owner from the unjust detention.

The reason will be made clearer by examples. You stole a horse so manifestly sick that before a day elapsed it would die; you stole away oxen and sheep already on the point of being driven off by invading enemies, furniture from a fire, goods from a shipwreck, and these are driven off or perish with you by the same chance event and at the same morally reckoned time. You are not bound to restore anything; because those things at the time of their taking away were of no value, nor did they begin to be of value to the owner while with you, since they were always in the same danger.

[By Gallican and Italian law, however the stolen thing may have perished or been lost, the thief is not exempted from the obligation of restoring its price³⁷¹ . A twofold reason can be brought forward : 1° because from the beginning the thief is at fault and in delay of restoring; 2° because, although by natural law the thief is bound to nothing in this case, restitution is legitimately imposed upon him by public authority, in punishment and vindication of his fault and injury, and on account of the motive of public order. Nevertheless he may await the sentence of the judge.] ³⁷¹ Cod. Gall., art. 1302; Ital., art. 1298.

Proof of the second part, which is more contested. 1° The possessor in bad faith contracts a twofold obligation, one by reason of the thing received, the other by reason of the unjust acquisition or detention; and the owner a twofold action, one in rem, the other against the person of the possessor. The thing perishing, the first obligation and action alike are indeed extinguished, but not the second; for this lasts as long as the thief does not repair the justice and equality which he violated, as is plain both from the nature of the thing and from the common sense of theologians and jurists. Yet this reparation is made only by restitution. Therefore, if restitution is not made, the owner is injured in this right or action of his.

You will say, an unjust acquisition does not give birth to an obligation of restoring in the thief, nor attribute an action to the owner, except insofar as it is damaging. Yet it is not damaging in the case where the thing would equally have perished with the owner. Therefore.

I answer. I deny the minor. For by the very fact that you despoil the owner, reasonably unwilling, of his thing not manifestly about to perish, although he must be deprived of it by another unknown cause, you efficaciously inflict damage upon him; because in such a case the thing is worth so much, according to the estimation of men, as if it were not about to perish. But that the owner is tomorrow to be deprived of the same thing by an unforeseen cause does not make it so that you, forestalling that cause, inflict no damage upon him, but only makes it so that the damage which tomorrow would be imputed to another cause, for example fire or shipwreck, is now imputed to you : just as your killing Titius today, who was tomorrow to be killed by a wild beast, does not make it so that you are not truly a homicide, a true damager and truly bound to restitution; but only makes it so that this killing is today imputed to you, otherwise tomorrow to be imputed to the beast.

And it seems wonderful that the adversaries concede all these things, even with respect to the obligation of restoring, if Titius were tomorrow to be killed unjustly by a free cause, and deny it concerning a necessary cause, seeing that a future killing by a necessary cause no more prevents your present killing from being damaging than if it were to be by a free cause.

Proof 2°. He who unjustly steals the thing of another, or unjustly detains it, according to the apprehension of men and every law, takes upon himself all risk of the thing, and therefore it is commonly said that the possessor in bad faith is liable for the fortuitous event; so that in such a case the thing does not perish to its owner, but to the unjust possessor, just as by force of a contract of insurance a thing perishes to the insurer, and not to its owner, in this sense that the insurer ought to pay back the value of the thing to its owner.

Whence, in our case, the condition of the owner becomes better to that extent, that he acquires a right that his thing, or its value, be rendered to him, from whatever state it may have arrived. Therefore, if it is not rendered, he is injured in that right, and damaged.

It is confirmed. If a thing bought and delivered yesterday, the price not paid, should perish today with the buyer, about to perish in the same way with the seller, the buyer is nevertheless held to pay the price agreed upon yesterday. Therefore likewise the thief is held to render the value of the stolen thing. — The consequence is plain; because the obligation of the thief contracted from a delict is no more extinguished by the destruction of the thing than the obligation of the buyer from contract. And if you say that by purchase and delivery he becomes owner of the thing, but a thing perishes to its owner, I shall answer, as above, that the thief by the unjust detention takes upon himself all risk of the thing, and thus the thing perishes to him, in this sense that he is held to render its value.

You will ask 3° to what the possessor in bad faith is bound by reason of improvement and deterioration.

I answer 1°. The possessor in bad faith is held to restore the thing, or its value, according to the state of improvement, whether intrinsic or extrinsic, which it would have had with its owner if the unjust possessor had not stolen it away or detained it, even if with himself it had not been in that best state. This is the common and certain opinion; because, since through his unjust taking away or detention he impeded this best improvement of the thing with its owner, it is evident that he is bound to compensate it.

I answer 2°. The possessor in bad faith is held to render the value of the thing according to the best state of improvement, intrinsic as well as extrinsic, which it had with himself, although this improvement would not have existed with the owner, or would not have profited him.

Consider the case. You stole a colt which grew up with you into a robust horse, and then grew old : behold intrinsic improvement and deterioration. In September you stole a measure of wheat worth three gold pieces, in January kept with you it is worth four gold pieces, in June, harvest near, it is worth only three gold pieces, or less : behold extrinsic improvement and deterioration. You are bound, I say, to render the value of a generous horse, and four gold pieces for the measure of wheat, even if such improvement had not profited the owner, either because he would have sold the horse or the grain before the time of improvement, or because he kept them until the time of deterioration : so that, if, at the time when you restore, the thing still exists with you in a worse state, it does not suffice to restore it as such, but you are bound to add something to compensate the past improvement.

Proof from the preceding principles. 1° A thing, so long as it remains, is improved to its owner, whether intrinsically or extrinsically, and of how much it is worth at any time, of so much is it worth to its owner. Therefore the possessor in bad faith inflicts damage upon the owner while he does not restore it to him according to what it was worth at its highest. Nor say that it also decreases to the owner, for we have shown that to be false; because, as we proved, the possessor in bad faith takes upon himself all risk of the thing, and thence the fortune of the owner becomes better. Whence, just as if the thing perchance perish with the thief himself, even though certain to perish with its owner too, he is held to render it as if existing in its value, as was said; so also, if the thing deteriorates, although it would have been deteriorating with its owner, he is held to render it not deteriorated, but improved as before while with him.

When the possessor in bad faith detained the thing of another at the time of greater value, whether intrinsic or extrinsic, he was bound to render it as it was, and from then, by reason of the unjust detention, contracted the obligation of restoring it according to that highest value which it had, no otherwise than if he had received it then for the first time. « As receiving the thing of another, says St. Thomas, is a sin against justice, so also is detaining it; because by the fact that someone detains the thing of another against the wish of its owner, he hinders him from the use of his own thing, and thus does him an injury ³⁷² . » Whence each has the same character of harm. Yet an obligation once contracted by reason of an unjust acquisition or detention, just as it is not extinguished by the fortuitous destruction of the thing, as was said, so neither by a subsequent deterioration, but by restitution alone or the condonation of the owner. Therefore. ³⁷² Here q. 62, a. 8, in c.

[Against the superior conclusion several say that, if the thing was to be kept by the owner until its decrease, the thief is not held to pay more than the value which it would then have had; because the owner truly suffers no loss, and is put back into the same state in which he would have been if no injury had been committed. This opinion is probable enough, so that it can safely be led into practice.]

The following things are to be held as certain ³⁷³ . ³⁷³ Gury, n. 648.

1° If the thing has become worse with the thief, it is to be restored according to the value which it had at the time when it was taken away. Otherwise the owner would not receive all that was his own. — This, however, according to Lessius, lib. II, cap. XII, n. 103, is to be understood in the sense that the thing decreased through the fault of the detainer; for if it is worse by its nature, in the same way as it would have become with its owner, it is to be restored as it is, since the thing decreases to its owner. But at the same time there must be compensated the damage which the owner perhaps suffered from the privation of his own thing. And this must be observed in every case.

2° If the owner would have sold his own thing at the time when it was taken from him, and the thief sold or consumed it at the same time, he is held to restore only the value which it then had. — But if the thief be in delay about paying back the price, he is held to compensate the damage ensuing from the delay to the owner.

3° If the thing with the thief first increased and afterward decreased, and it be established that the owner would have sold or consumed it at the time when it was of greater price, the thief is held to render him the greater price.

4° If the thief sell or consume a thing not to be kept by its owner at the time of greater price, he is held to render the whole price to the owner : 1° because the thing fructifies to its owner ; 2° because no one can grow rich from the thing of another ³⁷⁴ . But if he sold or consumed this thing not to be kept by its owner at the time of lesser price, several contradicting, more commonly and more probably he is held to have only this price refunded ; unless it be established that the owner could not have procured a like thing for himself at the same price ³⁷⁵ . ³⁷⁴ S. Lig., lib. IV, n. 621. ³⁷⁵ Id., ibid.

Lugo hands down a general rule for similar cases, disp. 18, n. 133 : « Whenever, he says, the question concerns the restitution of ceasing profit or ensuing damage, the restitution must be made not integrally, but according to the greater or lesser certainty of such profit, or of the avoidance of such damage, namely as much as that uncertain hope could be worth, all the things being weighed by which the effect could have been impeded. And this, even if the obligation of restoring descend from a delict. »

You will ask 4° whether he who consumed a stolen thing in extreme necessity is held to restore.

I answer, negative. He was indeed bound to restore before he was placed in such necessity, but theft does not destroy the right which he had to the thing in such a case. He must therefore be held in the same way as if he had received and consumed the thing in the very necessity itself ³⁷⁶ . ³⁷⁶ Id., ibid., n. 623.

You will ask 5° whether he who bought the thing of another from a thief can render it back to him, that he may recover the price paid.

I answer. It is denied more commonly. But St. Liguori holds the affirmative opinion, as absolutely probable and indeed more probable, with many others : « The reason is that, although he sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, just as the buyer in good faith, to rescind the contract by rendering the thing back to the thief ; for the reception of the buyer, once retracted, is not in fact the cause why the owner loses his thing ³⁷⁷ ». But if, on account of longer detention with the buyer, damage should accrue to the owner on this head, it would have to be compensated. ³⁷⁷ Id., ibid., n. 570.

You will ask 6° what, if the thing of another has passed through the hands of several possessors in bad faith, by donation or sale?

I answer 1°. As to the thing, it is to be restored by the last possessor. That one failing, the ravisher is bound for the price of the thing. But if neither satisfy, the rest ought to pay the price of the thing in equal parts. Finally, the others failing, each is bound to the whole, because the obligation lies upon them in solidum.

I answer 2°. As to the fruits of the thing or damages ensuing from the detention, each individually is bound to compensation for the part of the time during which he detained the thing. But if the rest do not restore for their own part of the damaging and enjoyment, the reparation of the whole damage falls to each one, pro rata of the time elapsed from the day on which they successively became unjust possessors of the thing of another ³⁷⁸ . ³⁷⁸ Gury, n. 630.

You will ask 7° whether the thief, besides the money taken away, ought to restore also some increment.

I answer, affirmative, if it be established or legitimately presumed that the owner was going to receive profit from his money; because he has suffered loss, and he ought to be made whole; but otherwise in the opposite case, because the owner, who underwent no loss, would grow rich from the thing of another ^{379 379} Id., n. 649.

You will ask 8° whether the possessor in bad faith can deduct the expenses incurred in preserving or improving the thing.

I answer. It is more probable that necessary and useful expenses can be deducted, in the forum of conscience, by the possessor in bad faith, and that the owner is bound in justice to refund them to him. This is the teaching of D. Thomas here, q. 100, a. 6, ad 3, where, having said that he who simoniacally received a benefice is held to restore, not only the fruits received, but also those which could have been received by a diligent possessor, he adds that this is to be understood « with the expenses made for the sake of the fruits deducted. »

Proof of the answer by reason : between the possessor in bad faith and the owner of the thing there intervenes a virtual and tacit contract, whereby the owner binds the thief that, if he do not restore the thing, he preserve it and, insofar as he can, bring it to completion, and therefore make the expenses necessary for these purposes. Therefore the owner is bound to refund these expenses as made by his will, when the thing is restored to him. — Proof of the antecedent.; because by law it is presumed that the owner wishes his thing to remain intact, nay rather, insofar as possible, be increased to his own advantage. Therefore he intends to bind the thief to these ends on supposition that he retain the thing.

So it is by natural law, and also by positive law ³⁸⁰ , namely lest the owner of the thing grow rich from another's good. Indeed it is permitted the possessor to deduct merely voluptuary expenses, provided however they can be separated intact, unless the owner prefer to refund them.] ³⁸⁰ Cod. Gall., art. 1381.

I said, « in the forum of conscience, » because in the external forum the possessor in bad faith will be deprived of expenses of any kind whatever, in punishment of his delict, and he will be bound to obey that sentence as just ³⁸¹ . ³⁸¹ S. Lig., Homo apost., X, 78, versus fin.; lib. IV, n. 618.

You will ask 9° whether anything, and what, is to be restored by a possessor of doubtful good faith.

I answer 1°. He who, before possessing the thing, doubts whether it is stolen, or whether he can justly possess it, first sins against justice by possessing it or acquiring it with the mind of retaining it for himself; because he exposes himself to the danger of detaining the thing of another against the reasonable wish of its owner, and by this very fact possesses unjustly.

But if, after a diligent inquiry, to which he is bound, as was said concerning things found, it be established that it belongs to another, he must restore it entire ; if doubt remains, it seems more conformable to reason and natural equity that he restore, not the whole, as certain ones wish, for perchance it is his own, but a part pro rata of the doubt.

[It is to be noted that he who begins to possess in doubt by despoiling another of his possession must, while the doubt persists, first restore the whole thing to the prior possessor, who unjustly deprived him of it under a certain title.]

I answer 2°. He who, after acquiring the thing in good faith, begins to doubt with founded doubt whether it is not stolen : 1° He is bound to inquire into the truth, employing moral diligence greater or less, according to the quality of the thing, as was said concerning things found ; otherwise he exposes himself to the danger of detaining another's property, and becomes a possessor in bad faith. 2° But if, after sufficient inquiry, an equal doubt remain, according to several he may retain the thing as his own, consume it, sell it, etc., because then this rule of law runs : « In equal doubt, the condition of the possessor is better, » according to which all tribunals, ecclesiastical as well as civil, adjudicate a possessed thing in doubt wholly to the possessor. He must nevertheless be disposed in mind to render to the owner, if he appears, the existing thing, or, if it does not exist, that by which he was made richer, and if he sells, to warn the buyer of such doubt, because it is a defect whereby its value is diminished.

(It is rightly pronounced that the thing can be adjudicated to the possessor in equal doubt, on account of the title of possession, which doubt does not destroy. St. Liguori proceeds farther, and from the principles we laid down in the treatise on Human Acts, on Probability, admits the same conclusion when the possessor has in his favor a probable opinion, and against himself one more probable; or in his favor possession alone, and against himself an opinion uniquely probable. In this twofold case he can retain the thing as his own, until it be morally established, that is, by proof overcoming the presumption born of possession, that the thing belongs to another. The reason is that, as soon as the possession itself is not doubtful, but certain and legitimate, though alone, it bears per se, according to the cited rule of law, a certain presumption concerning the formal justice of the possession, which preponderates over all reasons not admitting moral certainty, and yields only to truth ³⁸² . ³⁸² Lib. I, n. 36.

Those who then decree that the thing is to be divided pro rata of the doubt do not attend to the fact that they attribute certain right to him in whose favor the doubt or probability militates without a certain title.)

You will ask 10° whether a possessor of doubtful good faith can prescribe, if, after due inquiry, the doubt persist.

I answer 1° affirmative, more probably, if he began to possess in good faith ; because that persistent doubt, which due diligence could not dissipate, has become invincible, and consequently, even while it remains, a tranquil conscience can be formed, especially from the principle of law : « The condition of the possessor is better. »

I answer 2° negative, if he began to possess with doubtful good faith, because he is destitute of the good faith required for prescribing ^{383 383} Id., lib. IV, n. 504, 1°.

You will ask 11° whether he owes any restitution who doubts whether he has unjustly damaged someone, v. g., whether his command or counsel effectively influenced someone to damage; whether death followed from a wound inflicted; whether offspring was born of adultery.

I answer. It is more probable that one who doubts whether he has unjustly damaged another is held to restitution, not of the whole, but of a part, pro rata of the doubt.

Proof 1°. He who doubts whether he caused a damage doubts consequently whether he is bound to restore, just as he who judges with certainty that he inflicted a damage judges with certainty that he is bound to restore. Yet, by the very fact that he doubts whether he is bound to restore, he is certainly bound ; because, if he do not restore, while perhaps he is bound, he exposes himself to the manifest danger of committing an injustice, and here this rule of law runs : « In doubt the safer part is to be chosen. » Therefore.

The adversaries answer that he who doubts whether he did a damage doubts only perhaps speculatively whether he is bound to restore, because by a reflex judgment, that « in an equal case the condition of the possessor is better, » he remains practically certain that he is not bound to restore, unless it be certainly evident to him that he is bound; for he possesses his own things, and therefore ought not despoil himself of them, because he is not bound.

On the contrary. Possession does not make the condition of the possessor better, nor exempt him from restitution in doubt, except insofar as it founds a presumption that there does not subsist a reason obliging to restitution, as happens in those things which we have possessed in good faith for a long time, inasmuch as it is not likely that men greedy of their own things leave them to be possessed by others, as I said concerning prescription. But, in our case, the possession of your own things does not found a presumption that there does not subsist a reason obliging to restitution, which is the damage of which you doubt.

Proof 2°. In the case proposed, the presumption of damage stands against the doubter, so that it falls upon him to prove that he did not cause it. Therefore, if he does not prove it, he is bound to its reparation, at least in part. — Proof of the antecedent. Where a delict is established, the presumption stands against the delinquent, so that it falls upon him to prove that no damage came thence from those things which usually come from such a cause; because, according to all laws, in doubtful causes favor is rather to be shown to the innocent than to the guilty. Yet the delict is established, namely that an unjust sufficient cause of the damage has been posited. Therefore.

It is confirmed. When two concur per accidens in the same damage, and it is doubted by whom it was caused ; v. g., two shoot at the same man, and it is doubted from whose stroke he was killed; two commit adultery with the same woman, and it is not known from whose intercourse the offspring was born : each is held to restitution in part, as the theologians commonly teach. Therefore, a fortiori, the guilty one, while he concurs with an innocent one.

You will say : The offspring, in doubt, can hold itself legitimate until it be proved spurious. Therefore also the adulterer can hold it legitimate, and thus restore nothing for it.

I answer. I deny the consequence ; because the laws so dispose in favor of the innocent offspring, not in favor of the guilty adulterer.

[To us it seems that this question is to be solved otherwise, and let it stand as an example of the case of offspring born of adultery.

This principle must first be laid down, that someone is not bound to repair any damage unless it be established that his action was the positive, efficacious and formally unjust cause of the damage. I say, « unless it be established; » because, if it were pronounced that one who doubts whether he damaged another is bound to restitution, a certain obligation would be drawn out of a doubtful cause, and the effect would exceed the virtue of its cause; which is repugnant. And the same must be said even if the doubtful damager were compelled to repair only a part of the damage, pro rata of the doubt; for, as was said above, certain right would be attributed to the damaged party without a certain title.

In the proposed case a distinction must be made. Either it is doubted whether the offspring is of the husband or of the adulterer, or it is doubted whether offspring certainly born of adultery is of this or that adulterer.

If the former, the adulterer is bound to nothing : 1° because the damage is not established ; 2° because the offspring is presumed legitimate, unless the contrary be proved, all the more since adulterers strive to forestall the natural effect of the crime. St. Liguori adds a third reason ³⁸⁴ , namely that « the condition of the adulterer possessing his own goods is better, which he is not bound to despoil himself of for a doubtful obligation. » So it is commonly held, against certain ones who say restoration is to be made pro rata of the doubt. ³⁸⁴ Lib. IV, n. 657.

If the latter, a subdistinction must be made.

1° If perchance two, by common counsel, led another's wife into committing adultery, many say each is bound pro rata of the doubt. We, however, proceeding farther, judge that they are bound in solidum, so that, one failing, the other is bound to the whole, because they acted as one agent.

2° If two adulterers perpetrated the crime without any counsel, the theologians disagree. St. Liguori ³⁸⁵ exempts each from the obligation of compensating the damage, on account of the reasons brought forward in the case where it is doubted whether the offspring is legitimate or adulterine. But it must be said more truly that each is bound, at least pro rata of the doubt, as Gury affirms ³⁸⁶ , and better in solidum, as it seems to us. The reason is that each was in a different way the positive, efficacious and formally unjust cause of the damage inflicted upon the husband, who has certain right to compensation. ³⁸⁵ Ibid., n. 658. ³⁸⁶ N. 773.

He indeed who was made father of the adulterine offspring inflicted the damage and is bound to repair it ; but if he cannot be recognized as such, this comes about through the act of the other, who by his crime impeded that compensation be demanded determinately from the author of the damage, and from this uncertainty the innocent husband, who was certainly harmed, ought not suffer. Therefore.

Although St. Liguori seems to dissent in solving that question, nevertheless he favors our conclusion; for, even if he exempt both adulterers from every obligation, he nevertheless makes exception ³⁸⁷ , if the second adulterer perceived, at least implicitly, that he would be the cause of that uncertainty ; which falls back into our opinion. ³⁸⁷ Ubi supra.

What has been said of adultery must be understood of similar cases.]