Case XIII: A Case of Restitution

Titius tells the following incident in confession. About a year ago, while a neighbor’s house was on fire, he did his best to save as much furniture and other articles from the burning house as possible. When there was no longer any prospect of saving any more property, and the owner of the house was standing near Titius, he suddenly bethought him of a considerable sum of money that was still in the house, but did not dare go after it. He told Titius about it, saying: “Well, it goes with the rest.” Thereupon Titius, taking a desperate chance, enters the building and secures the money at the risk of his life, but never lets on that he succeeded in saving it. The house was burned to the ground, and no one ever suspected for a moment that Titius has succeeded in saving the money. Titius felt no scruple about appropriating the money, as the owner had abandoned it as lost, and Titius thought he did him no damage in keeping it, because it would surely have been destroyed had not Titius saved it. Titius always thought that the money was lawfully his until within the last few weeks. Now his conscience troubles him, and as the amount was considerable, he desires to know what he ought to do in the matter. May he keep it, or must he return it?

ANsweR: Titius must restore the money to the rightful owner, but he may retain enough to indemnify himself for the risk he took in saving it and for whatever other damage he may have sustained. We can easily imagine how Titius was led to form a false conscience regarding the money, which permitted him to keep it. He said to himself, the owner abandoned all claim or right to the money when he said: “Let it go with the rest.” And it would have gone with the rest, that is, it would have been destroyed and lost to the owner had Titius not saved it. The neighbor is not any the poorer because Titius kept the money. Whether Titius saved it and kept it, or whether it was burned up, in any case it was lost to the owner. There is scarcely any doubt that a man who has not made a special study of the principles of justice and rights, would reason in some such way as above indicated, and thus become a possessor bonae fidei. However, we cannot call this money a res derelicta. The simple fact that it was in eminent danger of being destroyed, does not obliterate the original owner’s - right to it, or make it a res derelicta. Because it was in imminent danger of being destroyed and then was rescued from that danger does not transfer property rights in it, from its owner to the rescuer. Although it was on the point of being destroyed, it is still the property of its original owner, until it is destroyed or abandoned, and as such “res clamat domino.” Eminent danger to property does not destroy the owner’s right to the property, so that it becomes a res derelicta. Nor does the salvage of property that would otherwise be destroyed transfer the ownership of the property to the one who saves it. It is only when the owner does actually abandon his property and renounces all intention of claiming it any more than it becomes a res derelicta, and consequently primi possedentis. In the present case it can not be assumed that the original and rightful owner of a large sum of money renounced all claim to it as soon as he realized that it was going to be destroyed, or would willingly consider it as belonging to anyone else but himself in case it were rescued from the fire by human agency or through some chance of good fortune. Nor could the owner of the money be held guilty of acting unreasonably, in thus continuing to claim his property, even though he could not have saved it himself and had given it up as lost. It is still his money. The danger it was in has not destroyed his title to it, nor has the rescue of it created a new title of ownership in the rescuer. Therefore the money must be restored. When Titius fully realizes this obligation of restitution he will commit a mortal sin if he does not fulfil it within a reasonable time, if he is able to do so.

But he is not bound to restore all the money. He may retain a part of it to indemnify himself for the risk he took in saving it. This is quite reasonable and in harmony with the principles of justice. It is not so easy to determine the exact amount of indemnity that Titius is entitled to. In many countries of Europe, the amount is determined by statute and is generally ten per cent. of the whole amount found or saved. Ten per cent., therefore, we would say, let Titius retain as a reward for the risk he took in saving the money. It were very much to be desired that we had some such law, determining the reward for finding or saving property in the United States. We would even agree that Titius keep more than ten per cent. if he conscientiously thinks that ten per cent. does not represent the risk he took. Moreover, if Titius sustained any damage to his health or his clothing by saving this money, he is entitled to a reasonable indemnity for that also.

Only in the case of food or drink do the moralists make an exception to this general rule of restitution. “If a thief has consumed, in the same place and within the same time, a thing remaining in certain danger, during which he foresaw that the thing would equally perish in the owner’s possession,” he is not bound to make any restitution. The reason is that an article has no value for the owner as long as it is not removed from the danger of destruction. If the food or drink be removed to a place of safety before being consumed, then of course they recover their value and must be restored, quia res clamat domino.