81. Restitution from Profit without Cause

1. Pamelius buys an ox, which he sells to Lucas for a higher price. But behold, a little later he learns that the ox belongs to Ioannes. He likewise buys wheat in good faith. He keeps it for a brief time; for soon the price of wheat notably increases, and he sells it with great profit. But then he learns that that wheat is stolen and belongs to Caius.

Q. What as to the Case?

R. Pamelius, apart from eviction, concerning which nothing is had in the Case, probably can retain the price of the ox, and the profit made in its sale. For the price of the ox, since it is not the ox itself, does not pertain to the owner of the ox; and to him the ox and the price of the ox cannot both pertain at the same time. But the profit made in this sale has not been made unjustly, since it was made only on the occasion of another’s thing from his own industry or commerce. — The same seems to be said concerning the price of the wheat, and concerning the profit made.

Nevertheless Fr. Gury, 600, 601, denies the parity, saying: “that the value of the ox had not grown in itself, and therefore the seller could attribute the profit obtained to his own skill. But in the present case the value of the wheat grew from common estimation. Therefore the profit coming from resale is in no way to be attributed to the seller’s skill. Therefore Pamelius was made richer from that profit independently of his own industry. Therefore he must restore it to the owner.”

But in truth the whole industry in the sale of the ox was nothing other than this, namely that Pamelius, using the good and favorable occasion of a buyer, sold the ox. The industry in the sale of the wheat is the same: instead of consuming it at once, or selling it, he keeps it, and then, using the good and favorable occasion of the increased price of wheat, he sells it. Next, if that profit does not truly come from industry or commerce opportunely made by Pamelius, does it come from the wheat itself? Certainly not. If Pamelius had not sold the wheat, or if he had sold it when it was being sold for less, certainly there would have been no profit. Therefore that profit was not the fruit of the wheat, but the fruit of the sale, and so of the work and industry of Pamelius.

But in this sale of wheat there certainly was no singular and extraordinary industry. — Indeed that is of no force. For that there was not present a singular and extraordinary industry does not remove the fact that the work and industry of the person were truly present. And was a singular and extraordinary industry present in the sale of the ox? — Besides, if Pamelius probably can retain the price of the resale of the wheat, as Fr. Gury himself has at 601, he can probably retain also that profit, or excess of price in the resale. For he certainly cannot retain the price by any title other than by title of the contract of sale made in good faith, no eviction truly intervening. But by force of that sale Pamelius licitly and justly acquired ownership of that price, not only of part of the price but of the whole price; and he will be able licitly and justly to retain it until that contract is rescinded by eviction. I. M. 1339.

Fr. Gury, 606, proposes this other case: “Pancratius in the best faith bought from a certain traveler a horse at the price of 300 francs. But after a few days, behold, by good fortune, that Bucephalus, since it was of female sex, brought forth a pretty new foal for its master. Thrice-blessed Pancratius, having kept the foal, sold the mother to Lubinus with a profit of 30 francs. The matter had proceeded very well, when from an unfortunate message he learned that the horse was stolen, and belonged to Bernard.... What is the law?” The same Fr. Gury responds: “In the case of eviction, Pancratius must refund the whole price accepted to the evicted buyer, because then the contract is altogether dissolved. But let him have recourse against his own seller, if he can find him. But what of the foal? By Roman Law, it must be returned to the owner of the horse. For a thing fructifies for the owner; and the offspring follows the womb. But by Gallic Law (and it is the same by Italian Law) it can be retained by the possessor, since the thing alone, the fruits excluded, must be returned. — Outside the case of eviction, he can at least probably keep both the 300 francs with which he bought the horse, because he does not have the thing, nor has he been made richer from it, and the profit of 30 francs, which he acquired by reselling the animal, as a fruit of his industry. But what again of the foal? By Natural and Roman Law the foal cries out to the mother and to the mother’s owner. But by Gallic Law (as also by Italian Law) it can be kept by the possessor.”

Now, what indeed was the industry of Pancratius in selling the horse, so that those 30 francs are fruits of the industry of Pancratius? It was nothing other than this, that, with a good and favorable occasion offered and taken for selling the horse with profit, he sold it. For a horse which is worth 300 is also worth 330, and with this latitude of price a horse is accustomed to be bought and sold. Wherefore it could well be said with Fr. Gury against Pamelius, that the profit coming from resale is in no way to be attributed to the seller’s skill. But certainly that profit must be attributed to the work and industry of Pancratius, as in the case of Pamelius: by this very fact, that that profit comes from resale. — Besides, if in the case of eviction, by Gallic and Italian Law, Pancratius can retain the foal for himself, therefore a fortiori Pamelius, outside the case of eviction, will be able to retain for himself the profit perceived. And if again by Gallic and Italian Law, outside the case of eviction, Pancratius can keep the foal for himself, much more Pamelius can keep the aforesaid profit for himself. For the foal is a natural fruit in the case of another’s thing, and that profit is only an industrial and civil fruit. Nor is it valid to say that Pamelius has been made richer independently of his own industry. For first, Pamelius has not been made richer independently of his own industry, as has already been proved. Besides, has not Pancratius also been made richer independently of his own industry? Moreover, as Pancratius, so also Pamelius indeed has been made richer, but not illicitly nor unjustly. And while Pancratius truly has been made richer from another’s thing, Pamelius has been made richer, but only on the occasion of another’s thing. Wherefore, as Pancratius, so Pamelius does not seem to be disturbed.

Fr. Gury, n. 612, proposes another case: “Zacharias stole 100 gold coins from Carolus. But since he is a man by no means unskilled, he employed them so prosperously in commerce that he perceived a notable profit from them. Q. 1. Is Zacharias held to restore the profit perceived from the stolen money? 2. What if he had placed this money at loan, and had received interest from it?” Fr. Gury responds in the same place: “To the 1st. Zacharias is certainly held to restore that whole profit, if the owner suffered an equal damage, e.g., because he also would have placed his own money in commerce, etc.; and this is presumed as often as the injured owner is a merchant, or is accustomed to employ money in various businesses. Otherwise Zacharias does not seem bound to restitution of that profit, perceived from his own dealing, because it can be called an industrial fruit. — To the 2nd. Also in this hypothesis one must attend to the damage which the injured owner is presumed to have undergone from lack of the money, and that damage is to be repaired. Otherwise the thief does not seem to be urged to restitution of the profit perceived, because it can be held as a fruit of industry.”

Now there is industry as much in giving money as a loan as in the sale of some thing. Indeed there is greater industry in the sale of a thing, so that someone may perceive profit by selling it for more, than in giving a loan, so that from it he may perceive legal interest. Therefore if Zacharias, a possessor in bad faith, is not to be disturbed as to the profit perceived from stolen money given as a loan, neither does Pamelius, a possessor in good faith, seem to be disturbed as to the profit perceived from a sale.

2. Callixtus, a goldsmith, in good faith bought for 100 lire a certain mass of melted silver, from which he made a chalice, which afterward he sold to a certain monastery for 150 lire. But soon he learned certainly that that silver had been furtively taken away from the same monastery to which he had sold the chalice.

Q. 1. Is Callixtus held to anything toward the monastery? — 2. Can the Superior of the monastery, the matter being known, reclaim the price paid, or refuse the price not yet paid? — 3. What if the chalice itself in specie had been stolen from the monastery, bought in good faith by Callixtus, and sold to the monastery for a higher price, and recognized by the Superior, whether before or after the payment of the price?

R. To the 1st. Callixtus is held to absolutely nothing toward the monastery.

For he is not held from the thing accepted, which he does not have, nor from unjust acceptance, toward which he cooperated in no way, nor from the fact that he has been made richer from another’s thing; for he has not been made richer unjustly from another’s thing, but he has justly been made richer on the occasion of another’s thing from his own labor and industry. G. 603; I. M. 1341.

To the 2nd. The Superior of the monastery cannot reclaim from Callixtus the price paid. For Callixtus, the contract of sale having already been perfected, legitimately made the price accepted his own; and so that price is no longer the monastery’s. I. M. 1339, 1341. Nevertheless the superior is not held to pay the whole price of the chalice not yet paid, but is held to refund the price of the labor and art to the goldsmith; for specification intervened, made in good faith. I. M. 906; G. 604.

To the 3rd. 1. Payment having been made, the goldsmith probably can retain the whole price. For the price accepted is his own by force of the contract of sale already perfectly made, unless, eviction intervening, that contract is rescinded. But the profit perceived, if he sold the chalice for a higher price, is also his own; because, the aforesaid contract of sale standing, the whole price accepted is his, and because the aforesaid profit or excess of price in the sale made of the chalice is the fruit of his industry and commerce. I. M. 1339, 1341; G. 605.

2. But before the payment of the price, the contract of sale not yet being perfected, the superior is not held to pay the price of the chalice. For one’s own thing is not bought, nor is anyone held to pay the price of his own thing which he has, in whatever way he has it, unless in a particular case some special disposition of law is present, which does not obtain in the present case. I. M. 1131, 1343; G. 605.

3. Palemon, in order to feed his wife, contracted many debts from loan, without having whence he might pay. After his death, the wife asks whether she herself, from her own goods, is held to pay the debts made by the husband for her.

Q. What must be answered to the wife?

R. The authors of the Cases of Conscience of the Diocese of Bologna, in the year 1778, month of November, Case 1, more probably affirm that the wife is held to pay the aforesaid debts of the husband. “An indigent husband, although he is held by a radical obligation to feed his wife, nevertheless while he is impotent he is not held by an actual obligation; for no one is held to the impossible, from L. Etiam, L. Maritum ff. Solut. Matrim. Therefore, if in order to feed her he contracted debts, the wife, for whose utility they were contracted, will be held to pay, if the husband is not solvent. For if someone accepted another’s thing and is not solvent, an action is equally given against him to whom the thing itself came, not indeed from an onerous cause, but from a lucrative cause, L. Eum servum, and L. Si et me et Titium ff. Si cert. petat. Next, it is unjust that someone be enriched from the things of others, and he who from another’s thing has been made richer is held to restore that in which he has been made richer. L. 2. § Aequissimum ff. ad L. Rhod. de Iactu, where it is said that, if, while a ship is being tossed by waves, a jettison of merchandise has been made, the detriment ought to be common also to those whose goods by reason of that jettison were saved. But in the Case the wife has been made richer from the monies accepted as a loan by the husband; for, the husband being impotent, the wife herself is held to feed herself. Therefore, if she has been fed from those loans, she spared her own things, and has been made richer. Add that by natural law the wife herself is held to feed not only herself, but also her indigent husband. Therefore the debt contracted by the poor husband for feeding the wife can truly be called the debt of the wife herself; and so, the husband being unable to pay, she herself is held to pay. Lastly, although from the whole title ff. ad S. C. Macedon. the father is not held to pay a loan contracted by a son under paternal power, nevertheless, if that loan has been turned to the utility of the father, or to a thing to which the father was held, he himself will be held to restore, L. Sed Iulian. 9. § Proinde ff. e. t.; Cap. Quod quibusdam de Solut., C. Ad hoc e. t.; L. 1. ff. de Condict. indeb.

Then truly the cited authors note two things: “1. How much is the wife held to pay in the Case? And it is necessary to distinguish. For either at the time when the husband was poor, the wife also was destitute, or not. If the first, when riches afterward come to her, she will be held to pay only that part of the debt which was consumed by her, that is, pro rata corresponding to the food for herself, because nothing else was truly turned to her utility. But if she was rich, the wife will be held to pay the whole debts. For, while she can, she herself is held by the right of natural conjunction to feed her indigent husband and her children. Whence the whole debt was contracted for her utility, or for supplying her actual obligation.

2. It must be noted that the wife is by no means obligated to those debts, if the husband, although he dies unequal to paying, nevertheless was able to pay at the time when he contracted the debts. For then, since he was actually held to feed his wife, the wife perceived no advantage from another’s money. Likewise she will not be held if the husband, after debts contracted in poverty, his faculties having increased, was made solvent. For since with the husband’s riches supervening his obligation revives, every reason in the wife, whether of utility or of equity, that she pay, ceases.”

Sanchez, de Matrim. l. 9. d. 4. n. 29, on the contrary more probably denies that the wife is held to pay the aforesaid debts of the husband. At n. 28 Sanchez proposes the question thus: “Whether, when the marriage has been dissolved, no goods of the husband remaining, the wife is held to pay from dotal goods the debts contracted by the husband for feeding her and the family, as for paying the wages of servants, the rent of the house, clothing and food of the family? And similarly, whether the children can be sued, and are held to pay the loan accepted by the indigent father for their food? For the decision and reason of both questions is altogether the same.” The first opinion affirming having been related at the cited n. 28, then in the following n. 29 he adds these things: “But although this opinion is sufficiently probable, the contrary pleases me more, namely that neither the wife nor the children are held to pay those debts contracted by the husband or father from their own goods. To prove this I premise that in a poor husband the obligation of feeding wife and children is not altogether extinguished, but only suspended for the time of the poverty excusing him; just as any debtor by reason of poverty is not wholly released from paying a debt, but that obligation is only suspended, and he is excused from payment while inability by reason of poverty lasts. This is plainly evident from this; for no one will doubt that wife and children are by no means held to those debts contracted by an indigent husband for their food, if the faculties of the husband in the course of time so increase that he is able to pay. But if by reason of poverty that obligation had been altogether extinguished, once the faculties had been increased it would by no means revive. For an obligation once extinguished does not revive. L. Cum ex causa C. de Remis. pign.

This having been premised, our opinion is proved thus. If Peter, that he may satisfy his creditors, contracts a great debt, thinking that afterward he will be able to pay it, although the contrary happens, no one will say that the creditors who were satisfied by that loan, and to whose utility it yielded, are held to the later creditors who gave those monies on loan to Peter. Because these later creditors entered into no contract with the prior ones, and truly through the loan they transferred ownership to Peter, and Peter as true owner could satisfy his debts from that loan, although by reason of poverty he was excused from paying them. Similarly, therefore, although an indigent husband by reason of inability is exempted, or rather excused for that time from the burden of feeding wife and children, and is not held to burden himself with debt, by which he may answer to this obligation; nevertheless, if he truly burdened himself, and thus fed them, he fulfilled a true obligation suspended by reason of inability. Nor will that money be said to have been turned to the utility of the wife and children, to which the father was truly not held; nor will wife and children truly be said to have been made more wealthy, and to have received from a lucrative cause (and from the liberality of the husband), but rather from an onerous cause (namely as a thing owed to them), since truly they received a debt owed to them; and therefore they will by no means be constrained to pay that loan. And it is confirmed, because although the wife was rich at the time of the loan accepted by the poor husband, she was not held directly to the food of husband and children, but in subsidy, namely, if the husband were not seeking elsewhere the monies by which he might supply necessities; and since he had now sought them, accepting a loan, the wife was relieved by him from that burden, and the money was not given on loan to her, nor received in her name; therefore she will not be held to pay it.

Secondly it is proved from L. Non adversus 15. C. Si certum petat, and L. Eum cui 13. C. de Action. et oblig., there: Him to whom you have given money as a loan, you ought to urge to payment by the competent action. For against business-agents, whom you allege to have taken monies from merchandise from your debtor, you have no action. From these texts it is evident that this action of reclaiming a loan is personal, and therefore competent against the debtor alone, to whom it was given; since ownership has truly been transferred to him, and in the manner of a true owner he could dispose of it....

Nor do the arguments of the contrary opinion stand in the way, because, from what has been said, it is evident that wife and children have from an onerous cause, and that loan is not said to have been turned to their utility.”

But Lugo, de Iust. et Iur. d. 20. n. 127 seqq., has these things to the point:

“From what has been said it can now first be inferred what must be said concerning the wife of a debtor or usurer who cannot pay his creditors, concerning whom Sylvester says that she must restore whatever she consumes from the goods of the husband. Others nevertheless concede that she can consume, without obligation of restoring, the things which are necessary to her for life and for the preservation of status. Both because the husband owes food to his wife no less than he owes it to other creditors, and because the creditors ought to be content that the debtor in such necessity defer or omit payment in order to feed his own wife. Note, however, first, if the things which the husband has were still in their proper species the goods of another, the wife could not consume them, except in the case in which it would be lawful because of necessity to usurp the things of another, and with the same conditions and limitations with which the usurpation of another’s thing is lawful. Note, secondly, if the wife could, with her dowry received by herself, or with her own goods, or in another honest way, feed herself, she could not accept from the goods of the husband to the prejudice of creditors; nevertheless she ought not to be compelled to serve or work for a living, when this would be done with dishonor.

It is inferred secondly that the same must be said concerning children, who also can licitly accept from the father, even one unable to pay his debts, the things which in the same way are necessary to them for the sustaining of life and status, because the father also owes them necessary food.”

And St. Alphonsus, l. 3. n. 354: “Whether a wife, her husband having died, is held from dotal goods to pay debts contracted for feeding the family? The first opinion affirms, if the man was poor while he contracted the debts, otherwise if he was wealthy, because a poor man was not held to feed his wife; therefore she herself is held to pay what was turned to her utility. But the second, more probable opinion denies this, whether the man was poor or wealthy. The reason is that the action of creditors for reclaiming the loan made is personal, namely only against the husband; and although in the husband by reason of poverty the obligation of feeding the wife was suspended, nevertheless it was not extinguished; wherefore, if he fed her from a loan, he furnished his own debt.”

Therefore, with this variety of opinions standing, it does not seem that the wife of Palemon can be obligated to restitution. And this is consonant not only with Roman Law, but also with the more recent Law. For if, while marriage is standing, a woman contracts a debt or any obligation whatever, the dotal goods also certainly become liable to creditors after the marriage has been dissolved, from the Italian Code 1407 (otherwise from the Gallic Code). But in the Case the wife contracted neither a debt nor any obligation, but only the husband; nor truly did the husband contract the aforesaid debts, in the Case, in the name of the wife, or with the wife at least knowing and consenting. — I. M. 677, 679.