Case LXXV: A Possessor in Good Faith and the Duty of Restitution

Caius received a watch as a present from Titus, and now discovers with certainty that Titus was not the rightful owner. He asks his confessor for instructions regarding a possible obligation of restitution devolving upon him. Caius is lawful owner of the object, of the watch, if he has had possession of the same bonae fidei for the term provided by law. In many places the law provides a period of six years for this purpose, in the case of movable objects. Apart from such legal title Caius is the owner of the watch, moreover, if he obtained the same at a public auction, or by purchase in any way whatsoever. If Caius has not possessed the watch for the legal term, nor acquired it in any of the lawful ways just mentioned, he is not the lawful owner and must, as honest possessor (possessor bonae fidet), make restitution to the rightful owner. If the owner is known, and as Caius has received the watch as a present, he must immediately restore it to the owner; this is evident. But if he has acquired the watch by purchase he may, if there is no other means of recovering the purchase price, return the watch to the former unrightful possessor, and reclaim the purchase money; in other words, he should rescind the deal. Even though Lacroix (1. m. p. 2, n. 100-103) states the opinion, that the object must be restored to the rightful owner, if known, even if there be danger of not recovering compensation, because it is unjust to make once more doubtful the return to the owner, or because one, in order to save one’s own garment, may not throw that of another into the fire, yet such renowned authorities as St. Alphonsus and Cardinal Lugo support the opinion that the obligation of restoration is not certain, indeed that the permissibility to rescind the deal, by returning the object to the thief against restoration of the purchase price, is more probable. (L. ITI. 569.) In proof thereof St. Alphonsus reasons: I am not per se obliged to maintain the property of another to my own prejudice, and hence I may allow that the thief gets possession of the object in question, so that I may not suffer injury to my property, just as when finding money in the public street, and having picked it up for the owner, I may put it down again (even at the danger that some thief may get it), if I expected injury from taking it in keeping. Furthermore, I have the right to rescind a contract invalid in radice, even though through the rescinding per accidens praeter intentionem a third party should suffer. It is one thing to take away another’s property, another thing not to preserve it. It is one thing to inflict harm upon another, another thing to permit another’s harm.

If the owner cannot be ascertained, then the position of Caius is the same as that of a finder of lost articles. If there is any hope of ascertaining the owner, inquiries for him must be made, the finder in the meantime taking care of the article; but if not, the finder may keep it and do with it as he pleases. E ita fert usus universalis. (Marc I, 999.)

George Freund, C.SS.R.