§ I. On the Possessor of Good Faith

A possessor of good faith is he who invincibly does not know that the thing possessed by him is another's, and prudently judges that it is his own, for example, because he has already acquired it by a title of dominion translative of itself, such as of inheritance, legacy, donation, or purchase. But it is supposed that he has not yet prescribed the possessed thing; for otherwise he would now not be the holder of another's thing, but of his own.

635. • Principles. I. A possessor of good faith, as soon as he knows that the thing possessed by him is another's, is held to restore it, still extant in whole or in part, or in profit, to the owner; for otherwise he retains another's good, with the owner reasonably unwilling, and therefore violates his strict right. - Thus all.

II. A possessor of good faith is held to absolutely nothing if during good faith he consumed, lost, or even destroyed another's thing, provided he did not become richer thereby. For he is not held by reason of the thing accepted, which no longer exists; nor by reason of unjust taking, consumption, or destruction, because he possessed the thing in good faith. This is also valid if he destroyed the thing purposely, or if it perished from his negligence. The reason is that he inflicted injury on no one by destroying or neglecting a thing which he believed to be his own. It is confirmed also by positive right. For thus, l. 31, § 3, ff. de petit. hered.: He who neglected a thing as his own is subject to no complaint.

I said, provided he did not become richer thereby; because that in which he had become richer would succeed in place of the thing. But it is against natural right that someone be enriched with another's injury, according to rule 48 of Law in the Sext: Someone cannot be enriched with another's injury or loss.

636. • Questions. Q. 1. Whether a possessor of good faith is held to restore the fruits which he received during good faith?

Resp. The fruits must be distinguished. For 1. some are natural, which come forth from the very substance of the thing, without any or with moderate work of man, such as grasses, etc. 2. Others are industrial, which are attributed chiefly to the industry of the possessor. 3. Others are mixed, which are partly natural and partly industrial, such as crops, etc. 4. Others finally are civil, which are not fruits properly so called, but are held as such by Law, such as annual revenues, the price of the leasing of a house, etc. ¹.

¹ Civil fruits can also be called either natural, or industrial, or mixed, according as they are judged to come from the thing rather, or rather from labor and industry, or from both.

I say 1. A possessor of good faith is held by no reason to restore merely industrial fruits, because these by reason of industry pertain wholly to the possessor ². - Thus all.

² To this are also recalled mixed fruits in that part in which they are owed to industry. On this matter St. Alphonsus says (lib. 3, n. 825): Mixed fruits, namely those coming as much from the nature of the thing as from industry, must not be restored to the owner by a possessor of either good or bad faith except insofar as they correspond to nature, but not insofar as they correspond to industry: for those fruits are not of the thing, but of the man gaining for himself on occasion of the thing or through the thing as through an instrument. This doctrine both in this place and in n. 610 he calls common. Croix (lib. 3, p. 2, n. 213) skillfully warns that the Authors commonly mean this for themselves when they say that mixed fruits are to be restored, the value of industry having been deducted.

I say 2. From natural right a possessor of good faith must restore all other fruits, whether natural or civil, expenses and labors nevertheless having been deducted ³. The reason is that by natural right fruits pertain to him to whom the fructifying cause itself pertains, since they come forth from the thing itself, according to the axiom: The thing fructifies for the owner. - St. Lig., n. 610.

³ Add, as regards civil fruits: and with the valuation of industry deducted, as is plain from what has been said.

I say 3. From Roman Law, according to the common interpretation, natural fruits perceived and still existing must be restored, although the law is not always so clear. But it is disputed as regards fruits no longer extant or consumed. Some judge that nothing is to be restored, although the possessor became richer from them, because the obligation of restitution cannot be proved either from law, which is silent or is not sufficiently clear ⁴, or from the practice of tribunals, which favors the possessor. - Yet they except if someone possessed another's inheritance which has been evicted; for then by law he is evidently held to give back everything from which he has been made richer. - See Carrière, n. 1052. - But more commonly the theologians, at least from natural right, oblige him to restore everything from which the possessor has been made richer. - Thus St. Lig., n. 610.

⁴ Therefore Roman law could seem obscure because, as Cardinal De Lugo well observes with others (De Iust., disp. 17, n. 41-47), the decrees of the older jurisconsults which are borne in the Digest disagreed in such a way that the Doctors labored with empty effort to compose them among themselves. Yet that uncertainty seems to vanish when the laws of the Emperors Diocletian and Maximian (L. Certum 22, C. De rei vindic.), and of Justinian (§ Si quis a non domino 33, Inst. De rer. Divis.), have been considered. But whatever may be true about this, since the general rule, as Lugo says (l.c., n. 39), of the Theologians is - and indeed not only from the more common, as the Author hints, but from the very common and unanimous sentence of them all - that extant fruits are to be restored not only in themselves, but also equivalently, namely insofar as the possessor of good faith has been made richer from them; and since, as the Author also indicates, according to the sentence of the same Doctors this obligation flows from the natural law, it can scarcely indeed be understood how Carrière, because Roman law seemed to him either to be silent or to speak obscurely about this matter, could conclude that the obligation of natural law ceases! But what the same Carrière adds concerning the practice of tribunals, which favors the possessor, is nothing. For does the sentence of any judge, spoken according to the laws of his own region, change or destroy the law of nature? Surely this one thing will now remain: that, fearing the practice of the same tribunals or those laws, we should think marriages duly dissolved even as regards the bond when a French judge speaks a sentence for these divorces!

I say 4. From French Law all fruits, whatever they may be, are assigned to the possessor of good faith, provided he possesses the thing itself as proprietor and by a title which of its own nature is able to transfer dominion. Civil Code 549, 550. But can this disposition of French 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 ⁵, since, understood thus, it promotes the public good much more, and removes from the midst inextricable quarrels and difficulties, which would continually be moved concerning the quantity of fruits to be restored, etc. Thus Carrière, n. 1054. - Vernier, n. 564. - Gousset, n. 931, etc., against some.

⁵ Nothing surely compels us to judge that any law, because it is found in the French code, is for that reason just and endowed with some force in the forum of conscience. But the reason which is added, of the public good, namely that thus occasion for quarrels and difficulties in determining the quantity of fruits to be restored is removed, shows itself too weak even at first sight; both because innumerable examples occur in the code itself in which that difficulty of determining the quantity of the thing to be returned or of the money to be paid by no means exempts from the debt to be paid; and because it is in itself most inequitable that a certain right either of reclaiming one's own or of paying another's should cease for this cause alone, that some difficulty occurs in deciding whether perhaps more or less than thirty gold pieces must be paid.

637. • Q. 2. To what is a possessor of good faith held if he has donated another's thing to another?

Resp. He is held to nothing if he has by no means been made richer, as follows from what was said above in principle II. Otherwise he must restore that in which he became richer, as is clear from principle I.

Q. 3. Whether, after the donation has been made and the error detected, he is held to warn the donee that he should give the thing back to the owner, or the owner himself, so that he may be able to recover his thing?

Resp. He is certainly held from the general principle of charity, if he can easily do it. But he seems also to be held by reason of justice, from the general obligation which the author of an injustice, even merely material, incurs.

638. • Q. 4. To what is a possessor of good faith held if he has sold to another a thing bought from a thief?

Resp. 1. In the case of eviction, that is, if the owner vindicates his thing from the buyer, the seller is held to return the price to the buyer. The reason is that the sale is wholly void, both from natural law and from positive law; therefore when eviction intervenes, the contract must be dissolved, and the buyer by the fact itself acquires recourse against the seller, since by handing over the thing to the buyer he implicitly obligated himself to repair the damage if perchance there should be a future eviction. Say the same, for the same reason, in the case of spontaneous restitution made by the buyer. - St. Lig., n. 601. - Salm., n. 89, etc. Lugo, however, denies this, D. 17, n. 109. ⁶ The same must be said if another's thing has passed into the hands of various possessors by onerous title. For if the last possessor is compelled to give the thing back to the owner, both he and each of the buyers have the right of pursuing his seller, so that they may recover the price paid.

⁶ Lugo, however, circumscribes this doctrine thus: If he to whom you in good faith sold another's thing, without warning you, restored it to the owner, and for that reason you cannot afterwards recover the price from him who had sold it to you, you are not held to return the price to him; because the damage which you brought upon him by selling another's thing, he in turn brought upon you by his accelerated restitution, by preventing you from being able to recover your price. Thus Lessius... This, however, must be understood with a twofold condition. The first is that for that reason you do not recover the price; for if you either can still recover it, or certainly, even if the thing had been returned to you by your buyer, you would not have recovered it, then he did not bring upon you a damage which you can compensate by denying him his price. The second condition is that your buyer, compelled by no necessity, restored the thing to the owner; for if he did it under compulsion, he is not judged to be the cause of your damage, and therefore there remains in you the prior obligation of restoring to him and of repairing the whole damage which he suffered from the purchase.

Resp. 2. Outside the case of eviction, or, according to some, even of spontaneous restitution on the part of the buyer, the matter is not without difficulty, and is keenly controverted. Thus it seems to us that it must be resolved.

1. From Roman Law the seller is held to nothing, at least more probably, unless he has been made richer from the sale. The reason is that the sale of another's thing with good faith is not held in law as wholly void. For although through it the dominion of the thing is not transferred to the buyer, nevertheless the dominion of the price is transferred to the seller. And indeed this seller, even if afterwards he detects that the thing sold is another's, is nevertheless not held either to warn the owner so that he may be able to recover his thing, or to disclose to the buyer that the thing is another's. - Thus more commonly. - Lugo, disp. 17, n. 106. - Salm., c. 1, n. 88. - Vogler, etc., against Billuart, a. 10, and others, who oblige the seller to return the price to the owner or to the buyer; because, they say, the sale of another's thing is wholly invalid.

2. From French Law the difficulty increases, because from art. 1599, C. C., the sale of another's thing is declared void. Therefore if, they say, the contract was plainly void, the buyer did not transfer dominion of the price to the seller, and consequently the seller has no right to keep that price. Therefore the price seems to have to be refunded to the owner, if he cannot reclaim his thing from the buyer. - Thus Carrière, n. 1047, with others.

Yet others deservedly contradict, whose sentence ought to seem sufficiently probable. For it is not plainly established that, even from French Law, the sale of another's thing has absolutely no effects. For from the cited article 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 obligated to restore the price to the buyer. Nothing else beyond these can be deduced from the practice of tribunals. But what cause is there between the seller and the owner of the thing? What kind of recourse can this latter attribute to himself against the former ⁷? Besides, it would be very hard that he who no longer has another's thing, nor has been made richer from it, should be obligated spontaneously to undergo so great an inconvenience. Therefore there remains for the owner, for pursuing his right or reparation of the right violated, recourse indeed against the actual possessor of the thing, or against the thief, but in no way against the others. - Thus Gousset, n. 929, and others.

⁷ Namely, the owner has against the seller neither a personal action, because no fraud intervened, nor a real action, because the seller does not have the thing.

639. • Q. 5. To what is a possessor of good faith held if he has sold to another another's thing accepted gratuitously?

Resp. 1. In the case of eviction he is held to repay the damage to the buyer, as in the preceding case.

Resp. 2. 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 common sentence 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 thing, is compelled to undergo the whole damage of the thing. Hence this latter must be kept unharmed from the profit which the seller received without any title. - Vogler, n. 66, and innumerable others.

Some, however, free the seller from every obligation, because the owner can have no recourse against him, just as in the preceding case. - Thus Gousset, n. 930. - Yet one must not depart from the common sentence.

640. • Q. 6. If someone in good faith has bought another's thing at a moderate price and has sold it at a greater one, whether he is held to return the profit received to the owner?

Resp. 1. Negatively, if that profit is to be attributed to extraordinary industry, for example, if he has gone to another place with notable labor so that he might find a suitable occasion of selling the thing more dearly, etc. The same must be said if the thing, in the time of detention, was made better by the care of the holder.

Affirmatively, on the contrary, if the thing increased from its nature, or from the common estimation of men, but not from the industry of the holder, because in that case it increases for the owner.

Resp. 2. But in other cases it is controverted. Some affirm, because from that profit the possessor has been made richer. - Billuart, etc.

But others deny, more commonly and more probably, because that whole profit seems to be the fruit of the industry of the possessor. - Thus Lugo, disp. 17, n. 20, and others sufficiently commonly, as Billuart admits.

641. • Q. 7. To what is a possessor of good faith held if he has sold another's thing, and it has perished in the hands of the buyer?

Resp. 1. If he had the thing by onerous title, more probably he is held to nothing, as follows from what was said in the fourth question. For 1. he is not held by reason of the thing, since he no longer has it; 2. nor by reason of damage, since he is not the cause of its destruction, nor otherwise in any way formally cooperated in the removal of the thing.

Resp. 2. If he had the thing by gratuitous title, the solution does not become so easy, because he became richer. The Theologians depart into various opinions concerning this question, and difficulties stand before you on every side. A threefold sentence is chiefly distinguished.

The first sentence, which seems more probable, teaches that the price must be restored to the buyer. For the seller cannot keep it, since he has been made richer from it. On the other hand, he is not held to give that to the owner, because the thing perished for the owner. Besides, if the first possessor was of bad faith, as more often happens, he is held toward the owner for the value of the thing. But on the other hand, since the sale was invalid, the buyer has a right to recover his money. - Bouvier. - Carrière, etc.

The second sentence, sufficiently probable, holds that the price must be restored to the owner. The reason is that, since he has been unjustly despoiled of his thing, he must be made unharmed. But since the thing no longer exists, it is equitable that he receive that by which the thing is represented. But it is represented by the price which the seller has. Therefore... On the other hand, the nullity of the sale in no way harms the buyer; because it harms him no more than if the contract were valid; but if it were valid, he could demand nothing back. Therefore... Several rightly except the case in which the thing would equally have perished with the owner, for example, from intrinsic defect or from age; for then in reality it would have perished for him.

The third sentence says that the seller can retain the price for himself, because he need not restore it either to the owner or to the buyer. And 1. not to the owner, because the thing perished for him in every case; 2. not to the buyer, because the money which the seller accepted does not precisely represent the thing, but rather the obligation which he undertook for keeping the buyer unharmed in the case of eviction. But the buyer was not evicted; therefore the seller can retain the price by reason of the thing abandoned. This sentence counts few patrons, nor does it seem sufficiently probable.

642. • Q. 8. What must be done if among various possessors of good faith there has been one of bad faith?

Resp. That circumstance changes absolutely nothing in the condition of the other possessors, whatever place at last he occupied in the series of possessors. For the same obligation toward the owner is incumbent upon each one as if that possessor had been of good faith, since his bad faith in no way redounds upon the others. But he will be treated as will soon be said concerning possessors of bad faith.

Q. 9. What must be done if a possessor of good faith indeed detects that the thing possessed by him is another's, but the owner does not appear?

Resp. This must be determined as concerning a thing found. Therefore more probably the possessor can keep that thing for himself. - Recall what was said, n. 578.

643. • Q. 10. Whether a possessor of good faith can subtract the necessary expenses which he underwent in conserving or increasing the thing?

Resp. He can deduct all necessary expenses, indeed also useful ones, namely those which conserve the thing and make it better; for otherwise the owner would receive more than what is his. But he can demand nothing for merely voluptuary expenses, because it is not equitable that the owner pay expenses which bring him no utility.

But among expenses are not to be counted fortuitous cases, nor damages caused by accident. Thus, for example, if in cultivating another's field your horses perished, the value of the horses cannot be deducted, but only the valuation of the labor done by the horses for the cultivation of the field.

644. • Q. 11. Whether he who bought a stolen thing in good faith can give it back to the thief in order to recover his price?

Resp. 1. Negatively, if the owner appears, reclaiming his thing from him; for then he must return it to him, even with the loss of his price, because by natural law the owner can occupy his own thing wherever he finds it. Nevertheless, an action is given to the buyer against the thief.

Except from French Law, if the thing was bought in a public market, or from him who is accustomed to sell things of this kind; for then the buyer is not held to return the thing to the owner, unless the price has been paid. Now this disposition of law, according to some, has force also in the forum of conscience, because it is most useful for the public good, for the tranquillity of possessions, and greatly favors commerce ⁸. - Thus Bouvier, on the possessor of good faith. Carrière, n. 1041. - Gousset, n. 1027.

⁸ See what we said above concerning these French laws, where prescription was treated.

Resp. 2. If the owner is indeed known, but ignorant of the thing, more probably the buyer can send the thing back to the thief so that he may recover the money; because the buyer is not held to preserve the thing for the owner with his own damage. - Thus St. Ligor., n. 569. - Lugo. - Lessius, etc. - Yet others probably deny, because the thing cries out for its owner. - Thus Lacroix. - Laymann. - Carrière, n. 1042, etc.

Resp. 3. If the thief or another seller does not appear, or does not wish to return the money, the buyer, with the owner known, cannot sell the thing to others, nor convert it to his own uses so that he may keep himself unharmed, because he is not the owner of the thing; but he must return it to the owner, notwithstanding the loss of the price. But he preserves recourse against the seller. But if he cannot find him, the damage must be undergone by himself. - See Casus, n. 599 and following.