§ II. On the Possessor of Bad Faith

A possessor of bad faith is he who knows that the thing which he accepts or possesses is not his own.

645. Principles. - I. A possessor of bad faith must restore the thing itself in individual, if it exists, or in equivalent, if it does not exist, and besides everything in which he has been made richer ¹, as was said concerning the possessor of good faith.

¹ Understand the natural fruits of the thing; for if he has been made richer through industrial fruits, he can licitly retain these for himself, as the Author warns below.

II. He is held besides to compensate every damage brought upon the neighbor from the unjust taking, even if he was not made richer. The reason is that through the taking formally unjust and of itself efficacious of damage, he violated the right of the neighbor. But commutative justice requires that the violated right be integrally repaired. Therefore...

III. Yet he can retain all industrial fruits, and deduct expenses both necessary and useful; indeed even merely voluptuary ones, where they can be separated with the substance of the thing intact, unless as a penalty of the delict he has been condemned to lose the expenses. - St. Lig., Hom. ap., n. 74, 77.

646. Questions. - Q. 1. Whether a thief is held to restitution who stole a thing otherwise certainly going to perish?

Resp. Affirmatively, nevertheless with the expenses made, together with the price of the labor applied to free the thing from danger, deducted. The reason is that that thing did not cease to belong to the owner, although it had been exposed to the greatest danger.

Several probably except the case in which the thief consumes the thing while it remains in certain danger, for example, food or drink now about to perish in a fire; because a thing not freed from danger is of no value for the owner. - Lugo, D. 18, n. 77, 144 and following. - St. Lig., n. 620. - Elbel, n. 80.

Several extend this to the case in which another's thing is withdrawn from proximate danger and is immediately consumed; for example, if you take another's wine, which just now was certainly going to be seized in an enemy incursion, and drink it with your family or friends. - Lugo, Elbel, ibid.

647. • Q. 2. Whether a thief is held to restitution if the stolen thing has perished with him?

Resp. 1. Absolutely affirmatively, if it perished through the fault of the thief or of any other person whatever, because the thief was the efficacious cause of the damage, whether he himself or another by culpable negligence lost or consumed, donated, or destroyed the thing. - Thus all.

Resp. 2. Generally affirmatively, if likewise the thing perished with the thief, even without any fault of his. The reason is that the thief, by removing the thing, took all its danger upon himself. - St. Lig., n. 620.

Resp. 3. Nevertheless negatively, if the thing would have perished with the owner at the same time and by the same chance, or from its intrinsic defect, because then absolutely no damage is inflicted on the owner. More probably this has force even if the thing certainly would have perished at the same time and in the same common danger in which it perished with the thief, for example, in the same fire, or in the same public calamity. The reason is that then the theft was not the cause of the damage, but the thing would equally and in the same way and time have perished. - Thus commonly. - St. Lig., n. 620; Hom. apost. on the seventh precept, n. 79. - Lugo, Disp. 18, n. 141. - Vogler, n. 501, against Concina, etc. I said 1. if the thing would have perished at the same time with the owner; because if it would have perished earlier, and it must be ascribed to the theft that it did not perish, now it was always crying out for its owner while it was remaining with the thief, nor would it have perished if it had already been restored; therefore the thief is held to restitution. But if it would have perished later with the owner, the same obligation of restitution presses for the thief, who at that instant at which the thing perished with him contracted the obligation of restoring.

I said 2. in the same danger; because where the danger is wholly diverse, it can well be imputed to the thief that it perish, because without his theft the thing would not have been exposed to this danger, although it would have undergone another risk. - St. Lig., n. 620. - Some, however, contradict, because, they say, it is the same whether the thing perishes in this danger or in another, when both risks coexist at the same time.

From Roman and French Civil Law, in whatever manner the thing perished in the hands of a possessor of bad faith, he is held to restitution. Yet he does not seem to have to be obligated to restitution before the sentence of a judge, unless it is established that he is obligated by natural law. - Carrière, n. 1072. - Gousset, n. 933.

648. • Q. 3. To what is a possessor of bad faith held when the thing had various value during the time of detention?

Resp. 1. The things which follow must be held as certain:

1. If the thing was made worse with the thief, it must be restored according to the value which it had at the time when it was taken away. For otherwise the owner would not receive all that was his.

2. If the thing increased with the thief, it must be restored with all increments here and now existing, because the thing always belongs to the owner, and increases for him.

3. If the owner would have sold his thing at the time at which it was taken away from him, and the thief at the same time sold or consumed it, he is held only to restore the value which it had when he stole it.

4. If the thing increased with the thief and afterwards decreased, and it is established that the owner, at the time at which it was of greater price, would have sold or consumed it, the thief is held to return the whole greater price.

5. If the thief consumed a thing not going to be kept by the owner at the time of lesser price, he is not held to restitution of the increase, at least more probably, because he does not become rich from another's thing, nor inflict injury on the owner. - Thus more commonly, against some. - Except if the owner could not have bought at the same price a thing similar to the one consumed. - St. Lig., n. 621.

6. If the thief sold or consumed a thing not going to be kept by the owner at the time of greater price, he is held to return that price to the owner, although the owner would have done something else with the thing, because the thing fructifies for its owner. - Thus commonly. - St. Lig., n. 621.

Resp. 2. But it is controverted whether the thief is held to restore the stolen thing according to the greater value which it at some time had, if the owner would have kept that same thing until the time of lesser price, or if he would have consumed it before its price had increased. It seems more probably to be denied, because the thief is held to restore the greater value neither by reason of the thing accepted, as is plain from what has been said, nor by reason of damage inflicted, because he places the owner back in the same state in which he would have been if the injury had not been committed. - Lugo, D. 18, n. 132. - Lacroix, n. 233. - Carrière, etc.

Yet not a few others affirm, because the thing belonged to the owner with its increase at the time of greater price, and therefore then he was held to return it. Therefore, etc. - St. Lig., n. 621. ². - Billuart. - Antoine.

² ** The VV. oppose to the Author's doctrine as regards the second part of the question (p. 923) those things which St. Alphonsus (Lib. 3, n. 621) has. If the owner, he says, would have consumed the lamb at the time of the lower price, and with the thief the value increased, but afterwards with him decreased to the original value, Concina responds that the thief is held to restore the lower price, since restitution does not oblige except according to the measure of the damage inflicted. But this seems to me wholly improbable, since, when the price of the lamb had increased to five for the benefit of the owner, and at that time the thief culpably did not restore the lamb to him, the damage was not in five, but in ten, and the delay of the thief was indeed the cause of this damage; wherefore he must restore not five, but ten.

But perhaps both sentences can be reconciled, if in both places the hypothesis is supplied, or the limitation which each left to be understood according to the first part of the question. Laymann (Lib. 3, Tr. 2, C. 4, n. 5) proposes this limitation thus: But it must be limited, unless the thing is so situated that, although the unjust possessor had restored the thing in the best state, nevertheless it would not have been sold by the owner, etc., but kept, and similarly would have been made worse; then the unjust possessor satisfies by restoring the thing in the worse state to which, nevertheless without his fault, it came. The reason is that in this case the thief, by the delay of restoring, in reality brought no damage upon the owner, as is clear from the things said above.

Lugo himself clearly proposes this in the place which the Author also alleges (Disp. 18, n. 132). And first he thus proposes the doctrine later handed down by St. Alphonsus: If, while existing with the owner at the time of greater value, it was to be consumed or alienated, the thief is held afterwards to restore to the owner according to that greater value; because at the time of greater value he ought to have returned it to the owner, and from the unjust retention he was the cause that that damage arose for the owner or that profit ceased; and this whether from the fault of the thief, or without it, the value or goodness of that thing decreased. And the Author also hands down this same doctrine in the fourth and sixth Resolution. Lugo then (ibid.) adds the limitation or other hypothesis thus: If that thing decreased in value, which would have decreased in the same way with the owner, by whom it was to be kept up to that time when it was worth less; now regard must be had only to the value of the thing for the time when it was consumed, and when the damage was truly inflicted; because from that unjust consumption or from the past unjust retention or taking, the owner suffered no other damage, as we suppose. Therefore neither by reason of arising damage nor of ceasing profit must anything else be restored above that which the thing was worth when it was consumed.

In practice, since almost all the aforesaid circumstances do not become known, for the most part only compensation of the value which the thing had at the time of the theft is to be urged.

649. • Q. 4. Whether a thief, besides the stolen money, must also restore the interest (les intérêts)?

Resp. Affirmatively, if it is established or presumed that the owner would have received that profit, because this latter, with respect to the possessor of bad faith, must be made wholly unharmed; but otherwise probably in the other hypothesis, because it is not established that the owner has a right to that increase.

Q. 5. Whether those are held to restore who, in order to receive alms, pretend that they are poor, or true poor persons who say that they are upright when they are not?

Resp. to the first: Affirmatively. The reason is that they have no right to alms; for those who dispense them intend to help only true poor persons. Therefore restitution must be made either to the giver, or at least to truly poor persons. More probably it suffices if restitution is made to poor persons. Nevertheless restitution does not seem to have to be urged if it is a matter of very modest alms, such as are given door to door, because those dispensing them are less unwilling as regards these. - Thus commonly. - St. Lig., n. 622.

Resp. to the second: Negatively, generally, because need alone, but not uprightness, is the condition to which the donor attends or is presumed to attend. - Thus commonly.

650. • Q. 6. What if another's thing has passed through the hands of several possessors of bad faith by donation or sale?

Resp. 1. As regards the thing, this is to be restored by him who still holds it or changed it into another value, or consumed it, or lost it in any way. But if he is lacking, the robber is held. But if neither of them has satisfied his debt, the others must pay the price of the thing in equal portions. Finally, in the defect of the others, each one is held for the whole.

Resp. 2. As regards the fruits and damages of the thing, each one is held to compensation for the part of the time during which each detained the thing. But if the remaining persons do not compensate for their part of the damage and fruition, the reparation of the whole damage is incumbent upon each, yet pro rata of the time elapsed from the day on which successively they were made unjust possessors of another's thing ³. - Thus commonly.

³ Namely, each of them is held to repair the damages, not those which followed before he himself became possessor of another's thing, but those which followed afterwards.

Q. 7. Whether he who knowingly bought another's thing from a thief can give it back to him in order to recover the price?

Resp. It is controverted almost as in the similar case of a possessor of good faith, concerning which above, n. 644. More commonly it is denied, because by buying in bad faith he took upon himself the danger of the thing; on the other hand, no one's fraud ought to patronize him. But others affirm as probable, with St. Ligor., n. 570, because although he sinned by buying the thing in bad faith, nevertheless after the purchase he has a right, just as a possessor of good faith does, to rescind the contract; nor, by giving the thing back to the thief, does he place it in a worse condition than that in which he found it, from which moreover he was surely not held in justice to free it.

651. Resolutions. - 1. A possessor of bad faith is held not only to compensate the damage arising to the owner from lack of his thing, and at least foreseen in a confused way, but also every ceasing profit; namely, not only that which the owner in fact lost on account of lack of his thing, but also that which he would have received in a licit manner.

2. He who transported stolen grain belonging to another to another place, where he sold it for a greater price than the owner was going to sell it, is not held to assign the increase of the price to the owner. - St. Lig., n. 618. - But if the thief sowed the same grain in his own field, he is held only to return similar grain, so that the owner may be kept unharmed. Likewise if someone places another's eggs under his own hen to be incubated, he is held to restore only the value of the eggs.

3. If someone has stolen wheat which the owner was keeping to be sold at the time of a greater price, and consumed it at the time of a lesser price, he is held to restore that price which the owner was expecting; unless perhaps restitution is made so early that the owner can buy similar wheat at the lesser price and keep it without inconvenience until the time of the greater price.

4. If someone has killed a stolen lamb, or consumed another thing of this kind taken away by theft, he is held to pay only so much money, at least more probably, as corresponded to the value of these things at the time of killing or consumption; unless perhaps the owner with the same money could no longer buy a thing of the same value, and at the same time wished to keep that thing so that he might obtain a greater sum of money from its sale. - St. Lig., n. 621.

5. If the thief stole and consumed wheat which the owner was going to keep until the final time of sale, but after the theft the value of a modius first indeed increased, but afterwards, when the thief wishes to restore, decreased again to that value which it had at the time of the theft, it is enough, at least more probably, to pay the price corresponding to this value. - Reuter, n. 330. - See what was said, n. 648, Q. 3, Resp. 2. - See Casus, n. 610 and following.