Case LXVII: Gambling with Another’s Counterfeit Money, and the Obligation of Restitution

From an Italian periodical we quote the following case. Simplicius is an inveterate gambler. One day, finding himself out of funds, he observes that his room-mate, Fulvius, puts away a five-lire piece among his belongings, and Simplicius, thinking that he can replace the money before its owner will discover the peculation, takes this coin and soon invests it in a game of chance. He was favored by luck and won considerable money. His joy and good cheer is noted by Fulvius, who is soon made aware of all the facts, including the one that it was his money which enabled his friend to gamble. Fulvius thereupon claims the entire winnings because it was his money that produced them. Simplicius balked, and finally they agree that Fulvius should have part of the winnings, and, of course, the amount taken from him. After Fulvius had his share safely put away, he made to Simplicius the startling announcement that this coin had been a counterfeit and that he was surprised how Simplicius could pass it without trouble. It is asked, had Fulvius any right at all to the winnings? May he retain share of the winnings with good conscience? Finally, may Simplicius keep the winnings and is he under no obligation to the taker of the spurious coin?

Ad. I. Fulvius had no claim whatever upon the winnings which Simplicius made with this coin. It is true that the possessor malae fidei, which Simplicius is here, must be dealt with far more severely than the possessor bonae fidei, and the principle: res clamat ad dominum, and res fructificat domino, must be more rigorously applied. For instance, the possessor bonae fidei may become the rightful owner of the article and its natural fruits, which is impossible to the possessor malae fidei because the necessary condition, the bona fides, is lacking in him. But in our case there are fructus industriales. The winnings must manifestly be ascribed to the luck and industria of Simplicius. According to law even the possessor malae fidei may retain the fructus industriales.

Ad. II, While Fulvius was privileged to have Simplicius arraigned in court for stealing, he was not obliged to it, neither ex caritate nor ex justitia; he could renounce his right and allow himself to be bought off by Simplicius, who was concerned in preserving his good name, even if, as in our case, there was no intention of dragging the culprit to court.

Ad. III, Simplicius may keep the winnings, but must make restitution for the spurious coin to the man who accepted it as genuine. Gambling presumes an agreement to let chance determine the winner. It is in the nature of a commercial agreement, an emptio certo pretio juris incerti. The gambler buys for a certain sum the right to a gain that depends upon chance, upon the alea. For the nature of an agreement is required the mutuus consensus, in the commercial agreement the mutuus consensus dandi resp. accipiendi certum pretium pro quadam merce. This consensus was certainly present in our case. Simplicius undertakes to put up five lire, and the man who runs the game on his part agrees to pay if Simplicius wins, and his stake is the gain that may fall to Simplicius through the gamble. This agreement was not affected by the circumstance that the buyer of the chance paid with counterfeit money. For this reason, even if Simplicius had not won, he would nevertheless have been obliged to make good those five lire. Since luck favored him, he may take and keep the winnings. He is obliged, however, to restore the five lire, because the man who took the counterfeit coin is injured to that extent by Simplicius, even though the latter was not aware of causing this injury. Prof. Joseph Weiss.