Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ III. On the Possessor of Doubtful Faith
- Principles. - I. A possessor of doubtful faith, whether he doubted from the beginning or only in the course of possession, is held seriously to inquire, so that he may put away the doubt. The reason is plain; otherwise he exposes himself to the danger of retaining another's thing from his own culpable negligence.
II. If, diligent inquiry having been made, the doubt perseveres, more probably he can retain the whole thing, if before the doubt arose he possessed in good faith. The reason is that in an equal case, or doubt, the condition of the possessor is the better; and possession begun with good faith creates of itself the greatest presumption concerning the justice of the possession, and attributes to the possessor a certain right, which, unless it is overcome by other stronger reasons or presumptions, ought to prevail both in the internal and in the external forum. - St. Lig., l. 1, de Consc., n. 34. - Lugo, D. 17, n. 86. - Lacroix, n. 563. - Carrière, n. 1094, and others commonly, against some who say that the thing must be divided pro rata of the doubt.
III. If the doubt preceded the possession, a distinction must be made. For he who in doubt began to possess by despoiling another of his possession is held to restore the whole thing to the prior possessor 1, when it is not established that this latter began to possess the thing in bad faith; because in an equal cause his condition is the better, as being possessor. - Lugo, D. 17, n. 80. - Carrière, n. 1100.
1 Understand, if the doubt afterwards perseveres.
But he who accepted the thing by another title, for example, of purchase, and after diligent examination the doubt still perseveres whether he from whom he accepted it is its owner, must restore, pro rata of the doubt, to the probable owner, or to the poor if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor on the other hand does he seem held to restore the whole. - St. Lig., n. 625. - Lugo, ibid.
- Questions. - Q. 1. To what is he held who accepted some thing in bad faith, judging it to be another's, and afterwards doubts whether the thing is his or not?
Resp. He must be equated with him who began possession with doubtful faith; for the prior estimation is found to be false, and consequently is not to be attended to in the solution of the case. Therefore weigh whether by his possession he despoiled another or not, and resolve according to what was said in principle III.
Q. 2. What if such a possessor neglected to inquire from the beginning, and afterwards the owner of the thing can no longer be found?
Resp. It seems that something must be restored to the poor pro rata of the hope which the owner could have had of recovering his thing. Generally that hope does not attain half the price, but is of much lesser value. - St. Lig., de Consc., n. 31. - Lugo. - Lacroix, n. 564, etc.
- Q. 3. To what is a possessor of doubtful faith held if he neglected to inquire, and the owner appears?
Resp. Generally after the beginning of the doubt he must be treated as a possessor of bad faith; therefore he must be obligated not only to give the thing back to the owner, but also to repair all damages to him. - Lessius, c. 14, n. 83. - Carrière, n. 1088, and others commonly.
He seems to be excepted who began possession in good faith, and afterwards, when doubt had arisen, neglected to inquire, thinking that the owner could be found only with difficulty; for he would be equated with a possessor of good faith.
- Q. 4. Whether a possessor of doubtful faith can prescribe, if, the due inquiry having been made, the doubt perseveres?
Resp. 1. More probably affirmatively, if he began to possess in good faith; because that persevering doubt, notwithstanding the diligence applied, is invincible, and consequently even while it remains, conscience can be formed from that principle especially: The condition of the possessor is the better.
Resp. 2. But negatively, if he began to possess in doubtful faith, because he lacks the good faith required for prescribing. - St. Lig., n. 504. - See above, n. 589.
Q. 5. Whether a possessor of doubtful faith who began to possess in good faith is held to restitution if, inquiry having been made, he finds that the thing is more probably another's?
Resp. More probably negatively, because from certain possession a morally certain right arises. Besides, until another has proved his certain right, the axiom has force: The condition of the possessor is the better. - St. Lig., l. 1, n. 35, and others very commonly according to St. Lig., against some who teach that then restitution must be made pro rata.
Q. 6. Whether a debtor, in doubt concerning the completed payment of the debt, is held to pay integrally or in part?
Resp. Generally one must attend to the various circumstances of things, so that it may be discerned whom the presumption favors. - See what is to be said concerning the causes excusing from restitution, n. 721.
- Resolutions. - 1. If you possessed another's thing in good faith, and when a doubt supervened and remained after inquiry, relying on the principle of possession, you consumed it, but afterwards the owner unexpectedly appears, you will be held to restore only that in which you have been made richer. This follows from what has been said. - St. Lig., n. 607, 608.
- When none of those concerning whom there is doubt whether they are owners of the thing possesses the thing itself in fact, if the doubt is equal, the thing must be divided equally among them; but if the doubt is unequal, it seems to have to be divided according to the proportion of the doubt. But if the thing cannot be divided, it must be sold, so that the price may be divided; or, from the consent of the parties, it must be granted to one who is obligated to render the right to each of the others; or also it must be cast into lots, so that it may be assigned to him whom the lot will favor. - Lacroix, n. 566. - Sanchez, Decal., l. 2, c. 23, n. 173. - Carrière, n. 1101, and others.
- If you doubt whether your predecessor possessed goods by a legitimate title, you can, the matter having been weighed and the doubt persevering, nevertheless accept and retain the inheritance, provided it is established that he possessed in good faith. For if the axiom, in doubt the condition of the possessor is the better, favors your predecessor, it favors you also as successor; for in this case the principle of the possessor of doubtful faith who began possession in good faith must be applied, since predecessor and successor by law effect one moral person.
- In doubt whether someone began possession in good or bad faith, it must be presumed in favor of the possessor, because delicts are not presumed but must be proved. Yet if someone is found actually in bad faith, and it is doubted whether he began to possess with this bad faith, he must be presumed to have been of bad faith from the beginning, because one who is once bad is always presumed to be bad, according to Rule of Law 8 in the Sext. - Thus Lacroix, n. 567. - Lugo, D. 18, n. 16. - See Casus, n. 622.