XXII. On Restitution from Another's Thing

Whether there is an obligation of restitution from another's thing? It is undoubted that by reason of another's thing there is an obligation of restitution. For this is to restore: to set the owner again in possession of his own thing. Nor indeed is it considered by whom, or by what cause, or whether in good, bad, or doubtful faith, the thing is held. For these do not change the truth that the thing is another's. A possessor is in good, bad, or doubtful faith according as he invincibly does not know the thing to be another's and prudently judges it to be his own; or openly knows it to be another's; or doubts whether it is his own or another's. We shall speak of each gradually and specifically. St. Thomas, 2. 2, q. 62, aa. 1, 6; C. A. 826; Inst. l. 4, t. 1, 2; E. M.

What of a possessor in good faith? A possessor in good faith, as soon as he knows the thing possessed to be another's, is bound to restore it, still extant, to the owner. The reason is that otherwise he retains another's good while the owner is reasonably unwilling, and therefore violates his strict right.

If meanwhile by his negligence he has made another's thing worse, he is bound to no compensation of damage. If he has lost or destroyed another's thing, even by his negligence, he is held to nothing. "He who neglected the thing as though his own is subject to no complaint." L. 31 § 3, Dig. de Haered. petit.; C. He. 938; C. L. 494; L. 607; C. B. 985, 993.

Note: A possessor in good faith can deduct all necessary expenses, indeed also useful expenses, namely those which preserve the thing and make it better; otherwise the owner would receive more than his own, namely if the thing is still better. He can also claim back voluptuary expenses in those same cases in which a possessor in bad faith can do this. For what is granted to a possessor in bad faith cannot be denied to a possessor in good faith. Cf. 1348. But among expenses are not to be computed fortuitous events, nor damages caused accidentally. Thus, e.g., if in cultivating another's field your horses perished, the value of the horses cannot be deducted, but only the estimation of the labor done by the horses for the cultivation of the field.

C. I. 502, 704, 1013, 1019; C. G. 856, 861; C. B. 994 ff.; C. A. 331, 332; C. H. 454; C. L. 498, 500; C. He. 939; L. 1, 3, 5, 7, 14, de Impensis in res dotales factis Dig. If a possessor in good faith received the thing from him who had received the same from the person who owned that thing and believed himself to be debtor of the same thing, he is by no means bound to restitution, with recourse preserved for the owner against him to whom he himself had given it by error. C. I. 1146; C. G. 1377; C. B. 929, 932. If a possessor in good faith of a stolen or lost thing bought it at fairs, or in a market, or in a public sale, or from a merchant selling similar things, the owner cannot vindicate it for himself except within the time constituted by law and after the price has been paid. C. I. 708, 709; C. G. 2280. Cf. C. H. 464; C. A. 367; C. B. 935; C. He. 934.

Whether a possessor in good faith can retain the thing if, before the time required for prescription, he certainly discovers that the thing is another's, yet it is impossible to recognize the true owner of the thing, whether the thing is movable or immovable? If the matter concerns a movable thing, it seems that that possessor can retain the thing for himself, nor is he bound by obligation to give it, or the equivalent price, to the poor or to a pious work. For that thing can then be equated with a lost thing. Moreover, the finder of a lost thing can retain it for himself if, sufficient diligence having been employed, the owner does not appear, nor is there any hope that he can be found. If the matter concerns an immovable thing, the same seems to be said, for whether the thing possessed is movable or immovable is something material in the reason of justice. Wherefore if in that case a movable thing can be retained, an immovable thing also can be retained. Besides, the same reason can be made here as is made for a lost thing. For in that hypothesis, because the owner can no longer be found, the thing becomes no one's and is acquired by the first occupant. Finally, the possessor of this thing can indeed still retain the thing while waiting until the owner appears. For thus he better provides for the good of the owner himself than if he gives it either to the poor or to a pious work. Hence, if the owner ever appears before the time required for prescription of the longest time, he is bound to restore it to him. But if the owner appears after the time required for this prescription, then nothing seems to have to be restored to him. For this is admitted for the case of a lost thing; therefore also for the present case, which is equated with it. L. 589.

To what is a possessor in good faith bound who alienated the thing? A possessor in good faith who alienated or consumed the thing with profit, sparing his own, is bound, of himself, to restore this profit, insofar as he has been made richer from another's thing. The reason is that profit which is immediately from another's thing is equivalently that other thing itself. Therefore, just as a possessor in good faith is bound to restore another's thing formally existing, so he must restore the same thing equivalently existing. A possessor in good faith who alienated, lost, destroyed, or consumed the thing, although deliberately and with fault, but without any profit, is held to nothing. The reason is that the thing perishes to its owner, and it no longer exists either in itself or in an equivalent; and, as has already been said, "because he who neglected the thing as though his own is subject to no complaint." L. 31 § 3 ff. de Haered. petit. - Wherefore he is held to nothing if he gave away a thing accepted as a gift, or if he sold it, having bought it, for the same price. Gousset 929. - L. 607-609; C. A. 329; C. G. 1238; C. H. 457; C. L. 494; C. He. 938; C. I. 1240; cf. here 1338.

Whether a possessor in good faith must also restore fruits?

A possessor in good faith is in no way bound to restore industrial and mixed fruits, insofar as these correspond to industry. But as regards natural and mixed fruits, insofar as these correspond to the thing, by natural law he is bound to restore them. The reason is that the thing bears fruit for its owner. Therefore, just as the thing naturally bears fruit for its owner, so one's own industry and labor bears fruit for the one laboring. - L. 609, 610; Gousset 931.

What concerning the fruits of another's thing by positive law as regards a possessor in good faith? - According to Roman Law, natural fruits received and still existing must be restored, L. 22, de Rei vind. C. But there is controversy as regards fruits no longer extant or consumed. Yet nothing seems to have to be restored, although the possessor has become richer from them; for "he must profit, if he has consumed them." L. 4 § 2, Fin. regund. Nevertheless inheritance must be excepted, because this is singular in it, that fruits increase the inheritance. L. 9, Famil. ercisc. C.; L. 40, de Hered. petit. Dig. - Does the bad faith of the deceased harm the heir?

Certainly so, if the deceased possessed precariously, by commodatum, deposit, etc., because since the heir cannot change the cause of possession for himself, he truly does not possess; and thus "the fortune of an heir succeeding into the defect is also to be held equal." L. 2, de Fruct. et lit. expens. C. But if the deceased did not possess precariously, then the heir truly possesses, and is a possessor in good faith, and therefore makes the fruits his own. Inst. l. 2, t. 1, de Rer. divis. §§ 35, 36; Reiff. l. 2, t. 13, n. 134; Schmalzgr. l. 2, t. 13, n. 50 ff.

According to C. I. 701, 703; C. G. 549, 550; C. H. 451, 452; C. L. 495; C. He. 939; C. A. 330; C. B. 955, 987, 993, all fruits, whatever they may be, are assigned to the possessor in good faith, provided he possesses the thing itself as proprietor and from a title which by its nature can transfer ownership. But can this disposition of Law also have force in the forum of conscience? It must more probably be affirmed, because it can reasonably be presumed that such is the force of the law, since, understood thus, it promotes the public good much more and removes inextricable complaints and difficulties which would continually be raised concerning the quantity of fruits to be restored, etc. But that the force of the law is not only to deny action in the external forum, but truly to transfer ownership, as in the case of prescription, is plainly clear from its words; for it says: the possessor makes the fruits his own. Voet l. 5, t. 3; Carrière 1052, 1054; Vernier 564; Gousset 931, in a. 550; L. 619.

According to C. B. 988, 2020, an exception is to be made of the possessor in good faith who obtained the thing under a gratuitous title. For he is bound to restore the fruits received to the reclaiming proprietor. Likewise an exception is to be made of inheritance; for the possessor is bound to restore it to the heir with its fruits. Cf. here 1339, 1341. According to C. G. 1697, the seller of an inheritance is bound to include also the fruits received from it after the death of the testator. The same is had according to C. I. 1545. - Cf. here 1341.

To what is a possessor in good faith bound if he has given another's thing to another? If a possessor in good faith has given the thing to another, being otherwise about to give nothing of his own, he is bound to no restitution, as is established from n. 1335. But if otherwise he would have given something else equal or less, and he himself accepted the thing as a gift, he would be bound to restore that equal or lesser thing to the appearing owner who cannot recover his own thing, as is established from the same n. 1335. And he himself accepted the thing as a gift; for if he bought it, he would also be held to nothing according to the aforesaid n. 1335.

To what is a possessor in good faith bound if he has sold to another a thing bought from a thief? In the case of eviction, that is, if the owner vindicated his own thing from the buyer, the seller is bound to render the price to the buyer. The reason is that when eviction intervenes, the contract must be dissolved, and the buyer by that very fact acquires recourse against the seller, since by handing over the thing to the buyer he implicitly obliged himself to repair the damage if perhaps there would be future eviction. - The same, for the same reason, must be said in the case of spontaneous restitution made by the buyer. Of spontaneous restitution: with the exception of the case in which spontaneous restitution made by the buyer would be the cause why the seller afterward cannot recover the price from him who had sold him the thing; for then he is not bound to render the price, because the damage which he inflicted on the buyer by selling another's thing, that buyer in turn inflicted on him by accelerated restitution. C. I. 1497; C. G. 1640. - This same must be held if another's thing has passed into the hands of various possessors under onerous title. For if the last possessor is compelled to render the thing to the owner, both he and the individual buyers have the right of pursuing their own seller, so that they may recover the price paid. The first seller has recourse against the thief from whom he accepted the thing in good faith, judging it to be his own. For a possessor in good faith ought not suffer damage from another's bad faith. L. 601; Gousset 929.

Outside the case of eviction, or, according to some, also of spontaneous restitution on the part of the buyer, the matter is not without difficulty, and is sharply disputed. According to Roman Law, the seller is held to nothing, at least more probably, unless he was made richer from the sale. The reason is that the sale of another's thing with good faith is not held in law as altogether invalid. For although by it ownership of the thing is not transferred to the buyer, nevertheless ownership of the price is transferred to the seller. And this man, even if he later discovers that the thing sold is another's, nevertheless is not bound either to warn the owner so that he may be able to recover his own thing, or to indicate to the buyer that the thing is another's. Thus the more common opinion. Lugo d. 17, n. 106; Salm. c. 1, n. 88, etc., against Billuart a. 10 and others, who oblige the seller to render the price to the owner or buyer because, they say, the sale of another's thing is wholly invalid.

According to Italian and French Law, the difficulty grows, because the sale of another's thing is declared invalid. Therefore, they say, if the contract was plainly invalid, the buyer did not transfer ownership of the price to the seller, and therefore the seller has no right to preserve that price. Therefore the price seems to have to be refunded to the owner, if he cannot reclaim his own thing from the buyer. Thus Carrière 1047 with others. Yet others rightly contradict, whose opinion seems sufficiently probable. For it is not plainly established, even according to Italian and French Law, that the sale of another's thing has no effects at all. From C. I. 1459; C. G. 1599; C. H. 1474, these things merely can be deduced: 1. That the owner of the thing preserves his right in it. 2. That the buyer is subject to eviction. 3. That the seller in the case of eviction or restitution on the part of the buyer is obliged to restore the price to the buyer. Nothing beyond these can be deduced from the practice of tribunals. Moreover, what cause is there between the seller and the owner of the thing? What sort of recourse can the latter attribute to himself against the former? Namely, the owner has against the seller neither a personal action, because no fraud intervened, nor a real action, because that man does not have the thing. In addition, it would be very harsh that he who neither still has another's thing, nor has been made richer from it, be obliged to undergo so great an inconvenience voluntarily. Therefore to obtain his right, or the reparation of the violated right, the owner has recourse against the actual possessor of the thing indeed, or against the thief, but in no way against the others. Gousset 929; Gury 638; L. 608.

According to C. B. 932, the buyer of another's thing, if he acted in good faith and has possession of it by the delivery of the thing made to him, acquires ownership in the thing bought. According to C. A. 333, only this is had: that a possessor, even in good faith, cannot demand from the owner of the thing the price paid by him for the acquisition of that thing. But these things pertain nothing to the seller. And in a. 1336 it is said that from the general rule no one is bound to repair damage caused without his fault or involuntary action. But art. 931 holds the seller only by the obligation of preserving the buyer unharmed in the case of eviction. If another's thing has perished in the hands of the buyer, the possessor in good faith who first bought it and then sold it is held to nothing. For he is not held by reason of the thing, since he no longer has it; nor by reason of damage, since he is not the cause of its destruction, nor from another source has he cooperated in any way formally in the taking away of the thing. Gury 641; C. A. 329.

If someone in good faith bought another's thing for a moderate price and sold it for a greater price, whether he is bound to render the profit received to the owner? Resp. Negatively, if that profit is to be attributed to extraordinary industry, e.g., if he went to another place with notable labor so that he might find an opportune occasion of selling the thing more dearly, etc. The same must be said if the thing, during the time of detention, was made better by the care of the detainer. - Resp. Affirmatively, on the contrary, if the thing increased from its own nature or from the common estimation of men, but not from the industry of the detainer, because in that case it increases for the owner. Thus Gury 640. But cf. here 1337, 1339, 1341.

But if, apart from the three aforesaid cases, someone has bought a thing at the lowest price and resold it at the highest, some think he can retain what exceeds the lowest price, because that whole profit seems to be the fruit of the industry of the possessor. Some say he can retain what exceeds the middle price, because this alone can be held as the fruit of the industry of the possessor; some say the whole must be restored, because the just price of the thing belongs to the owner of the thing; finally some say that nothing must be restored: not the moderate price, because it corresponds to the price for which he himself bought the thing; not its excess, because he himself is the one who made this profit by his own industry, and it is only the fruit of his commerce and labor. Gousset 929, 930. Cf. here 1337, 1339, 1341. - Lugo d. 17, n. 20; Sanchez in Dec., l. 2, c. 23, n. 27; Gury 640.

To what is a possessor in good faith bound if he has sold to another another's thing accepted gratuitously? In the case of eviction, he is bound to repay the damage to the buyer, as in the preceding case. Cf. 1339. Outside the case of eviction, namely when the thing cannot be recovered by the owner, either because the last possessor consumed it, or because he no longer appears, the seller, according to the first opinion, must refund to the owner the whole price received from the buyer. The reason is that from that whole price he has truly been made richer, nor therefore does he suffer any loss on its occasion, while on the contrary the owner, unjustly despoiled of his own thing, is compelled to undergo the whole damage of the thing. Hence this owner must be kept unharmed from the profit which the seller received without any title. L. 608; Vogler 66.

The other opinion frees the seller from every obligation, because the owner can have no recourse against him, no otherwise than in the preceding case, since altogether the same reasons are valid, which it will help to weigh. Indeed, although the sale of another's thing is by that very fact null as regards transferring ownership of the thing, it is not nevertheless by that very fact null as regards acquiring ownership of the price. Therefore, excluding the case of eviction or spontaneous restitution, the seller is bound to nothing both toward the buyer and toward the owner. And indeed, if this reason is valid in the case in which a possessor in good faith bought the thing from a thief, cf. 1339, the same must also be valid in the case in which he received the thing gratuitously; for this gratuitous acceptance is altogether extrinsic to that contract of sale, nor therefore does it cause him not to acquire ownership of the price. Besides, the seller would have to restore the price either to the buyer or to the owner. But he does not have to restore it to the buyer, for the seller is bound toward the buyer by no other obligation except that of furnishing indemnity for eviction or even spontaneous restitution; but outside this case the buyer suffers no damage at all. But again neither does he have to restore the price to the owner, for the owner has against the seller neither a personal action, because no fraud intervened, nor a real action, because that man does not have the thing. Nor is it valid to say that, although he does not have the thing materially, nevertheless he has it formally in the price accepted for it; for in every contract of sale, since on one side ownership of the thing is transferred, while on the other ownership of the price is transferred, the price is no longer the merchandise sold, nor does it represent it; but it brings only the obligation for the seller of preserving the buyer unharmed in the case of eviction. And this appears more clearly in the sale of another's thing; for in it ownership of the merchandise is not transferred, yet ownership of the price is transferred; therefore the price, as being the seller's, is in no way the merchandise, which belongs neither to the seller nor to the buyer. "Nor can it be said," says Father Gury, Cas. 608, "that the price of the thing represents the thing itself." And D'Annibale, ed. 4, p. 2, n. 125: "This is not asked, if perhaps I bought a thing from another, whether I bought it with another's money, for instance stolen money; because the thing does not succeed into the place of the price; nor, if I have sold another's thing, does the price succeed into the place of the thing." Therefore the seller, not only if he bought the thing, but also if he received it gratuitously, after he has sold it, has it neither materially nor formally. The seller acquires ownership of the price of the thing sold, which consequently is in no way the equivalent of another's thing which he no longer has. The price of the thing is not substituted for the thing, nor does it in any way put on the nature of the thing. If the thing is immovable, the price of the thing always remains movable. Troplong, della Vendita, cap. 1, art. 1592, num. 162; cap. 5, art. 1653, n. 614.

In addition, the reason on account of which a seller who received the thing gratuitously would have to restore the price to the owner, if the last possessor of the thing does not appear or has consumed the thing, would be only this: because the seller has truly been made richer from that whole price, and therefore suffers no loss on its occasion; while on the contrary the owner of the thing, unjustly despoiled, is compelled to undergo the whole damage of the thing. But 1. it is one thing that someone is made richer from another's thing, another on the occasion of another's thing; one thing that someone is made richer unjustly from another's thing, another that someone becomes rich without any injury to another. Moreover, the seller indeed becomes rich on the occasion of another's thing, nor does he become rich unjustly; and this is not illicit. 2. That the owner alone should suffer damage in the case is accidental. For his legitimate right is no other than against the thief and against the actual possessor of his own thing. If he cannot pursue that right, it is altogether accidental.

Finally, in the case in which the seller, who received the thing gratuitously, sold it to another, and the thing perished in the hands of the buyer, those who oblige the seller to restitution do not agree among themselves: for some probably say that he must restore to the buyer, because the thing perished to the owner, and the buyer has the right to recover his own money since the sale was invalid; others probably say that he must restore to the owner, because, since the owner has been unjustly despoiled of his own thing, and the buyer has truly suffered no damage, equity requires that the owner be made unharmed. But if the right both of the owner and of the buyer is only probable, probably also the seller is held to nothing, and possession in fact prevails, according to the common rule. Gousset 930; Gury 639, 641. Therefore the owner of the thing has recourse only both against the actual possessor of it, if there is one, and against him who at the beginning unjustly accepted it. Gousset 980, 985.

Prescriptions of more recent Law: The heir of a depositary who in good faith sold the thing which he did not know was deposited is obliged either to restore the price received, or to cede his action against the buyer who has not yet paid him the price. C. H. 1778; C. I. 1851; C. G. 1935. - The apparent heir who in good faith alienated a thing of the inheritance must pay only the price, or cede the action for it not yet paid. C. I. 933. - Likewise, he who in good faith received a thing not owed to him and sold it must restore only the price of sale, C. G. 1380, or cede the action to obtain it, C. I. 1149; C. H. 1897. He will be able to retain the excess of the price for himself. C. I. 1149; C. G. 1380; Gousset 921 and in a. c. But he who has consumed the price without having been made richer thereby is held to nothing. Gousset, l.c. Cf. 1124. According to C. B. 816, if someone without right disposes of some object, whence some effect arises as regards its owner, he must restore to the latter that which he received by force of that disposition. - If the disposition was gratuitous, the same obligation falls upon him who by force of that disposition immediately acquires juridical advantage. - If a prestation is made to one not having right to it, whence effects arise as regards the one having the right, that one is bound to restore the prestation to him. 818. The obligation of restitution extends to produced fruits received and to everything which has been received by virtue of the acquired right, or under title of reparation because of destruction, deterioration, or taking away of the object to be restored. If restitution of the thing is not possible, its value is restored. The obligation of restitution of the thing or of its value ceases insofar as he who received the thing was not made richer thereby. - 822. He who gratuitously remits to a third party what he himself received, if he himself by virtue of this liberality is no longer bound to restitution of the thing by which he had been made richer, that third party is bound to restitution, since he did not juridically obtain that liberality. - 988. A possessor as owner of another's thing, under gratuitous title, is bound toward the true owner of it to restitution of the fruits received, even before they are demanded.

Whether a possessor in good faith, after a sale or donation has been made of another's thing and the error has been discovered, is bound to warn the donee or buyer so that he may render the thing to the owner, or the owner himself so that he may be able to recover his own thing? Resp. Affirmatively, if he can do this without his own grave inconvenience. For no one, precisely by force of charity, is bound with his own grave inconvenience to help his neighbor constituted in some grave necessity, whether temporal or even spiritual. Nor is anyone, precisely by force of justice, bound with his own grave inconvenience to repair or impede the grave damage of his neighbor, whether it is temporal or spiritual, unless from piety, from contract or quasi-contract, from formal grave and efficacious injustice, or from juridical sentence, or the authority of law. L. 601; Gury 637.

Whether he who in good faith bought a stolen thing can return it to the thief in order to recover his own price? Resp. Negatively, if the owner appears, reclaiming his own thing from him; for then he must render it to him, even with the loss of his own price, because by natural law the owner can seize his own thing wherever he finds it. Nevertheless an action is given to the buyer against the thief. C. A. 333. Except according to C. I. and C. G. if the thing was bought in a public market, or from one who is accustomed to sell things of this kind; for then the buyer is not bound to render the thing to the owner unless the price is paid. But this disposition of law, according to several, has force also in the forum of conscience, because it is very useful to the public good, to the tranquility of possessions, and greatly favors commerce. Cf. 1333; Bouvier, de Possessore bonae fid.; Carrière 1041; Gousset 1027.

If the owner is indeed known, but unaware of the thing, the first opinion, "very probable," denies, "because the thing snatched from the hand of the thief has now obtained a better state; and therefore if he were to return it to the thief, he would throw it into a worse state, and thus would inflict injury on the owner." The second opinion, "perhaps more probable," affirms, "because you are not bound to preserve the thing for the owner with your own damage." But since each one has a right to guard against his own damage, there certainly "is not forbidden to him that action which of itself is necessary and direct for repairing his own damage, although indirectly and accidentally damage comes to another.... Yet it must be noted that this opinion can have place only when no other way of recovering his own price is available to the buyer except by restoring the thing to the robber." L. 569.

If the thief, or another seller, does not appear, or does not wish to render the money, the buyer, once the owner is known, cannot sell the thing to others, nor turn it to his own uses in order to keep himself indemnified, because he is not the owner of the thing; but he must render it to the owner, notwithstanding the loss of the price. He preserves recourse against the seller. But if he cannot find him, the damage must be undergone by him. Cf. 1351; C. A. 333.

Whether he who buys a thing from a thief in order to restore it to the owner can reclaim the price from the owner? Resp. Affirmatively, if he bought it at a very modest price. For he usefully conducts the owner's business. But he who usefully conducts the owner's business is not to be defrauded of the price which he paid for the utility of the owner.

C. A. 333. - Resp. Negatively, speaking of itself, if he buys it at an altogether just price. For the owner on one side is not bound to buy his own thing, and the buyer on the other side in that case would not usefully conduct the owner's business if he could compel him to pay that whole price. Wherefore in the case he can reclaim only the part which, from the management of affairs useful to the owner, he could reclaim. Speaking of itself; for if the owner were prepared to recover his own thing at whatever price, then the buyer could demand this whole price, because then in fact he usefully conducts the owner's business. C. A. 333. - But what if the buyer had indeed judged that the thing was valued by the owner at so much, but falsely? Some stand for the buyer, others for the owner. "Tamburini settles the dispute, establishing thus: that the just price, however enormous, must be paid to the buyer if indeed he suffered himself to be deceived relying not on light but, in the judgment of prudent men, grave foundations; otherwise if by lightness of mind and without the matter being well weighed." Ithur., Cas. 4, n. 5. - L. 600.

What of a possessor in bad faith? - A possessor in bad faith must restore the thing itself, materially or formally existing, for the thing cries out for its owner. Moreover, he is bound to compensate all damages which came to the owner from the unjust possession of the thing, for he is the per se efficacious cause of those damages. - Likewise he is bound to restore all those things in which he has been unjustly made richer from the unjust detention of another's thing; for no one can justly become rich from another's injury. C. A. 335; C. B. 985, 987-990, 992; C. He. 940; C. L. 496. According to C. I. 1147, he who received payment in bad faith is bound to restitution both of the capital and of the interest or fruits from the day of payment.

Resolutions: If the thing had varying value, the possessor in bad faith is bound to restore the thing to the owner, if he has it, whatever value it now has, for the thing increases and decreases for its owner; and besides to compensate damages, if any followed, for instance if it was made worse by his fault, if the owner would have sold it at the time of greater value, etc.

But if he no longer has the thing, he must restore it according to the value which it had then, when it perished or he alienated it, because, since the thing perishes to its owner, and it then perished according to the value which it then had, no other obligation now remains except of that value which was then equivalent to the thing and represented it. Likewise, since when the thing was alienated it pertained to the owner, and pertained to him according to the value which it then had, that value is consequently owed to the owner. Likewise he must compensate damages, if any followed, for instance if the owner would have preserved the thing up to the time of receiving the greatest profit from it. And certainly, if then the thief had restored the thing to the owner when it perished or he alienated it, he would have had to give nothing else to him except the thing itself, whatever value it then had, and compensate losses incurred or profits ceasing, "according only to the estimation of the hope." L. 768, 619, 620, 621; C. H. 1896; C. I. 1147, 1148; C. G. 1378, 1379; C. B. 849.

Whether a possessor in bad faith must also restore fruits? Speaking absolutely, standing in the rigor of principles, he would have to restore all fruits, after expenses are deducted, as will be said in the following number, because the thing bears fruit for the owner. Yet, morally speaking, when the matter concerns theft of a small and very common thing, e.g., of a hen, it suffices if the value of that thing is restored, because by common estimation the owner of the thing has suffered no other damage. For if he wants to have another similar thing, he can very easily procure it for himself. Hence one must restore neither the eggs nor the other chicks obtained from it. L. 621; Gousset 935; C. B. 987, 988, 990; C. L. 497.

What of industrial fruits and of expenses made? - A possessor in bad faith can retain all industrial fruits and deduct expenses, both necessary and useful. The reason is that labor bears fruit for the one laboring; but the owner himself would have made necessary expenses to preserve the thing for himself; and useful expenses increase the thing and render it better for him. It is in the owner's power to refund either as much as was expended, or as much as the land has been made more valuable. Indeed, in the forum of conscience and before the sentence of a judge condemning him to the penalty of the delict, he can deduct even merely voluptuary expenses where they can be separated while the substance of the thing remains intact; for no right of the owner is injured thereby; or if they cannot be separated without detriment to the thing, and the owner would also have made them, or wishes to sell the thing, but not in the opposite case, because again in one case the owner suffers no damage, but he does in the other. - L. 618; C. A. 336; C. I. 450, 705, 1150; C. G. 548, 555, 1381; C. B. 850, 852, 994 ff.; C. H. 453, 455, 456; C. L. 497, 498, 499, 502; C. He. 940.

Whether a thief who stole a thing otherwise certainly going to perish is bound to restitution? - Resp. Affirmatively, after deducting expenses made, with the price of the labor employed to free the thing from danger. The reason is that that thing, now snatched from danger, does not cease to pertain to the owner, although it was previously exposed to the greatest danger. Resp. Negatively, if the thief immediately consumes the thing remaining in certain danger, e.g., food or drink already going to perish in a fire, because a thing not freed from danger is of no value for the owner, since it is estimated at no price. Besides, the owner cannot then be reasonably unwilling that a thing certainly going to perish for him be consumed by another. Several extend this to the case in which another's thing is withdrawn from proximate danger which is foreseen, and is immediately consumed; e.g., if you take another's wine certainly about to be seized by a hostile incursion, and drink it with family or friends. The reason is that since it is immediately consumed, by moral estimation it still has no value. Lugo d. 18, n. 77, 144 seq.; L. 620; Elbel 80.

Whether a thief is bound to restitution if the stolen thing has perished with him? - Resp. Affirmatively, absolutely, if it perished by the fault of the thief or of any other, because the thief was the efficacious cause of the damage, whether he himself or another lost or consumed, gave away, or destroyed the thing from culpable negligence. Resp. Affirmatively generally, if likewise the thing perished with the thief even without any fault of his. The reason is that the thief, by taking away the thing, took upon himself the whole danger of it. Generally: for it would be otherwise if the thing would have perished with the owner at the same time and by the same case, or from its intrinsic defect, because then no damage at all is inflicted on the owner. More probably this holds even if the thing certainly would have perished at the same time and in the same common danger in which it perished with the thief, e.g., in the same fire or in the same public calamity. The reason is that then the theft was not the cause of the damage, but the thing would equally have perished in the same way and time. L. 620; H. A. 79; Lugo d. 18, n. 141; Vogler n. 501; C. A. 338; C. H. 1896; C. I. 1148, 1298; C. G. 1302, 1379; C. B. 989, 990.

If the thing would have perished at the same time with the owner; because if it would have perished beforehand, and it is to be ascribed to the theft that it did not perish, it was always crying out to the owner while it remained with the thief, nor would it have perished if it had already been restored; therefore the thief is bound to restitution.

But if it would have perished afterward with the owner, the same obligation of restitution presses for the thief, who at that instant in which the thing perished with him contracted the obligation of restoring. In the same danger; because where the danger is altogether diverse, it can well be imputed to the thief that it perishes, because without his theft the thing would not have been exposed to this danger, although it would have undergone another risk. Yet some contradict, because, they say, it is the same whether the thing perishes in this or in another danger, when each risk coexists at the same time. L. 620.

According to Roman Law; Italian 1208; French 1302; Austrian 338; Spanish 1185; German 848: in whatever way the thing perished in the hands of the possessor in bad faith, he is held to restitution. Yet he does not seem to be obliged to restitution before the sentence of a judge, unless it is established that he is obliged by natural law, because this was constituted as a penalty, out of hatred of theft and violence. Carrière 1072; Gousset 933, in a. 1302.

Whether a buyer in bad faith can restore the thing to the thief? Resp. "Doctors more commonly deny this.... But Holzm., Elbel, etc., still affirm. And Lessius calls this opinion not improbable. And indeed not without merit Busenbaum thinks it absolutely probable; indeed Lugo says perhaps more probable. The reason is that although this man sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, just as a buyer in good faith, to rescind the contract by rendering the thing to the thief, as was proved above." L. 570, 600; cf. here 1343. Indeed D'Annibale, ed. 4, p. 2, n. 242, says: "Even if it is not of interest to you, I think an action for damage cannot be brought against you, since you set him back into the former state." Yet C. B. 851 does not free the one restoring it if he knew the right of a third party.

What of a possessor in doubtful faith? - A possessor in doubtful faith can be such either at the beginning or only during the course of possession. Concerning the first case it has been said above, n. 1327. Concerning the second, the discussion is here. - A possessor in doubtful faith must inquire after the true owner of the thing; otherwise he exposes himself to the danger of retaining another's thing through his own culpable negligence. Once inquiry has been made, and doubt perseveres, he can retain the whole thing if before the doubt arose he possessed in good faith. The reason is that peaceful possession of a thing in good faith exhibits moral certainty. L. 547, 608; Gousset 940, 1028; C. A. 323; C. I. 687; C. G. 550; C. H. 433.

What if a possessor in doubtful faith neglects to inquire after the true owner of the thing? Inquiry having been neglected, if the owner can no longer be found, "it seems," says Father Gury, 653, "that something must be restored to the poor according to the proportion of the hope which the owner could have had of recovering his own thing. Generally that hope does not reach half the price, but is of much lesser value." - But that resolution does not seem capable of demonstrative proof from the principles of law; rather the opposite seems to be drawn from them. For if up to now someone has neglected to inquire, he can still institute inquiry in the present. In addition, since it is probable that there is in fact no owner, because the thing probably is not another's, it is not established that this possessor culpably deprived the owner of the hope of recovering his own thing. Likewise, although someone neglected to make that inquiry, he always has in his favor the prior possession of the thing, altogether peaceful before the doubt arose, and therefore even now he can invoke in his favor that known principle: The condition of the possessor is better.

This can be confirmed from another resolution which the same Father Gury has, 655. For, according to the praised theologian, a possessor in doubtful faith who began to possess in good faith, if, after inquiry has been made, he finds that the thing is more probably another's, more probably is not bound to restitution, "because from certain possession a morally certain right arises. In addition, until the other has proved his certain right, the axiom holds: The condition of the possessor is better. St. Lig., l. 1, n. 35, and others very commonly according to St. Lig., against some who teach that then restitution must be made proportionally." But 1. each of these reasons does not lose its force even if someone neglected to inquire. 2. As is established from the second reason, in fact someone is not held by a strict obligation of justice to inquire, but can always prudently say: The condition of the possessor is better, until the other proves his certain right. 3. That hope of finding the owner through inquiry, even if the doubt is not merely negative, for then, as imprudent, it can be disregarded, but positive, constituting true probability, can by right be equated with probability or even greater probability in favor of the owner. But even while this greater probability stands in favor of the owner, after inquiry the possessor is not bound to restore. Therefore neither before, until the other has proved his certain right. L. 547, 562, 657, 658, 706; l. 6, n. 906.

Note: The conclusion placed last holds also for a possessor in doubtful faith from the beginning of possession, when he accepted the thing under title of purchase, donation, etc., doubting whether he from whom he accepted it is its owner, and he neglected to inquire, and the owner of the thing can no longer be found. For a nearly similar reasoning can be made here. This again can be confirmed from the doctrine of the same Father Gury; for he openly has these things, 656: 1. "If you doubt whether your predecessor possessed goods by legitimate title, you can, after the matter has been weighed and the doubt persevering, nevertheless accept and retain the inheritance, provided it is established that he possessed in good faith.

For if the axiom, in doubt the condition of the possessor is better, favors your predecessor, it also favors you as successor; for in this case the principle of a possessor in doubtful faith who began possession in good faith must be applied, since predecessor and successor make one moral person by law." 2. "In doubt whether someone began in good or bad faith, presumption must be made in favor of the possessor, because delicts are not presumed but must be proved." - Moreover, if someone has this intention, that, possessing the thing as though meanwhile precariously, he wishes to render it to the owner whenever he appears, he licitly takes and retains possession. - Lugo d. 16, n. 96; D'Annibale, ed. 4, p. 2, n. 121; Gousset 1028.

What, in a case of doubt, if possession of the thing is not had? When none of those about whom it is doubted whether they are owners of the thing in fact possesses the thing itself, at least from natural equity, if the doubt is equal, the thing must be divided equally among them; but if the doubt is unequal, it seems to be divided according to the proportion of the doubt. But if the thing cannot be divided, it must be sold, so that the price may be divided; or by consent of the parties it must be conceded to one, who is obliged to render to each of the others his right; or even cast into lots, so that it may be attributed to him whom the lot favors. La Croix 566; Sanchez, decal., l. 2, c. 23, n. 173; Carrière 1101; L. 706; D'Annibale, l.c.; cf. 1469.