Case XV: Restitution by Possessor in Good Faith

Case.—John received from Paul the present of a horse, which he afterwards sold to Peter for $250. A few days after the sale the horse died a natural death. John then learned that the horse he had received as a present had been stolen from Henry. Now John wishes to know what he is to do with the $250.

Questions:

1. Is John a possessor in good, bad, or doubtful faith?

_ 2. What are the principles of restitution for a possessor such as John is?

3. Is John obliged to restitution, and to whom?

Solution:

1, In the case John was evidently a possessor in good faith. He did not know the horse he sold was stolen property until after the death of the horse, and he is now willing to restore the $250 to the rightful owner.

2. (1) The person in good faith, just as soon as he learns that he is retaining the property of another, is obliged to restore it in its actual condition; that is, in whole or in part, as the case may be, together with whatever emolument he may have derived therefrom: id in quo ditior factus est.

(2) If the property of another person perishes while held by a possessor in good faith, and he has not enriched himself thereby, he is obliged to nothing: res perit domino.

(3) If the person in good faith sells the property of another to a third party, and the rightful owner later claims it from this third party, in casu evictionis, the seller is obliged to restore to this third party the amount received.

Those principles suppose, of course, that there had been no legitimate prescription in the case.

3. (1) The common opinion of the theologians is that John is obliged to restitution.

a. The more probable opinion holds that the $250 is to be restored to Henry, the rightful owner of the horse, because John has enriched himself by $250 at the expense of Henry.

b. Others hold that John must restore the $250 to Peter, the purchaser, because the sale was invalid.

(2) Some modern theologians (Bucceroni, Genicot, Noldin) hold that John is not bound to restitution at all, because neither Henry the owner nor Peter the purchaser can be said to have a right to the $250. Not Henry, because “res perit domino”; not Peter, because outside of the case of eviction, the seller acquires the full and entire dominion of the amount received. Consequently, “in dubio melior est conditio possidentis.”

The last opinion should be held as at least extrinsically probable, because of the authority of the theologians who teach it, and consequently John may be freed from all obligation to restitution.