Article 1: The Duty of Restoring Property Belonging to Others

A man may be possessed of the property of another without a just title either through an act of injustice, e. g., fraud, theft, usury, etc., or in good faith, e. g., by purchase, donation, or legacy. In the former case there is a culpa theologica, i. e., a formal violation of strict justice (iustitia commutativa), in the latter there is merely a material injustice. These two forms of unjust possession determine the manner in which restitution must be made.

The general rules for determining the duty of restitution are the following:¹

¹ P. J. Lönartz, Die Restitutionspflicht, pp. 77 sqq., 179 sqq., 266 sqq.—Cfr. Gury, Comp. Theol. Mor., Vol. I, n. 610: “The owner of a thing alone has the right per se to possess it, nor does he lose ownership of the thing into whosesoever hands it may come. Per se is said because any other possessor, even one in good faith, has the right to possess the thing only per accidens and from invincible error. From this principle, moreover, the following four axioms flow of their own accord: 1. The thing cries out for its owner, that is, the owner has a strict right to recover his property wherever he finds it; 2. The thing bears fruit for its owner. The reason for this axiom is that enjoyment is necessarily—” “included perfectly in the idea of ownership; 3. A thing naturally perishes to its owner, for when the object of ownership ceases, ownership itself thereby vanishes. But if it still exists in an equivalent, that equivalent belongs to the owner; 4. No one ought to be enriched from another’s property. Or in other words: The measure of restitution is the quantity of the thing detained. The reason is clear, for only the owner of the thing has the right to receive any fruit from it. But these general principles are modified according to the different condition of the possessor and sometimes according to the varying legislation of places.”—Cfr. Göpfert, Moraltheol., Vol. II, p. 260.

a) “Res clamat domino,” i. e., the rightful owner is entitled to his property, no matter into whose hands it may have fallen. This rule follows necessarily from the nature of property and ownership. In applying it, however, due regard must be paid to prescription, etc.

b) “Res fructificat domino,” i. e., the rightful owner is entitled to the fruits of his property, provided, of course, he has not ceded this right to others.

c) “Res naturaliter perit domino,” i. e., the right of ownership is bound up with the object owned and ceases with that object. If the object has perished, but its value continues, the original owner is entitled to the latter, as, e. g., when a ton of wheat has been sold and the sum received is still in the hands of the seller. If a thing has perished not from natural causes, but through the fault of the possessor, the owner is entitled to restitution.

d) “Nemo ex re alienâ locupletari potest,” i. e., no one has a right to enrich himself with the property of another, for the fruits of that property do not belong to the unlawful possessor, but to the rightful owner.

If the possessor cannot reach the owner, he must make restitution to his heirs.

It is quite a different thing, of course, to be benefitted occasione rei alienae, without injustice to anyone, for instance, by the growth of a community, the construction of a railway, the erection of a factory on or near one’s property, etc.²

² IDEM, ibid., pp. 118 sqq.; Slater, I, 374 sqq.

The fruits of a thing (fructus rei) may be:

α) Fructus naturales, natural, i. e., derived from the thing itself (beneficio naturae) without the co-operation of man, or with but slight co-operation on his part, for example, fruits of trees, wood in a forest, grass on a meadow, milk, wool, etc.; β) Fructus industriales, i. e., fruits of human industry or toil, such as the profits from a sale or purchase, etc.; γ) Fructus mixti, which are partly the result of industry (ex industria) and partly of the natural or artificial fertility of the property (ex re ipsa), for instance, grain, wine, etc.; δ) Fructus civiles, which are derived from an object by means of the civil law, e. g., rent, salary, etc. The latter category may be reduced to the first (fructus naturales).³

³ Gury, I, n. 613: “Fruits of different kinds must be distinguished: 1. Natural fruits, which proceed from the substance of the thing itself without any or with little human labor, such as grasses, etc.; 2. Industrial fruits, which are attributed chiefly to the action of the possessor using the thing; generally, however, fruits are partly natural and partly industrial, such as crops, etc., and are called mixed; 3. Civil fruits, which are not fruits properly so called, but are regarded as such by law, such as annual revenues, the price of leasing, etc.”—Cfr. Noldin, Summa Theol. Mor., II, 391 sqq.; Slater, I, 374 sqq., 401.

1. One may be in possession of the property of another either in bad faith or in good faith. A possessor malae fidei is one who knows, or has good reason for believing, that the property he holds belongs to another.⁴ Such a one is bound to restore to the rightful owner whatever the latter has been unjustly deprived of, that is to say:

⁴ Gury, Comp. Theol. Mor., Vol. I, n. 622: “A possessor in bad faith is one who knows that the thing which he received or possesses is not his own.”—St. Augustine, De Fide et Operibus, c. VII, n. 10: “In the law of estates, each person is most rightly called a possessor in good faith so long as he is unaware that he possesses another’s property; but when he has learned this and has not withdrawn from another’s possession, he is then regarded as being in bad faith, then he is justly called unjust.” (Migne, P. L., XL, 203).—Cfr. Lehmkuhl, Casus Consc., I, n. 652–655.

a) The stolen property itself, for “res clamat domino.” If the property no longer exists, its value must be restored. If it has deteriorated in value whilst under the control of the unlawful possessor, restitution must be made of the value it had when it was taken from its rightful owner. If its value has increased, it must be restored as it is, with all its fruits, for, “res fructificat domino.” If the stolen property fluctuated in value after the theft, the owner’s loss must be made good, and if he intended to sell it when at its highest value, that value must be restored to him.⁵

⁵ Slater, I, 405.

b) All the fruits of the property, natural, industrial, and mixed, must be restored to its owner. But any necessary or useful expenses incurred by the illegitimate possessor for the preservation or improvement of the property, as well as such fruits as may be the result of special efforts on his part, may be deducted.

c) The damage suffered by the owner in consequence of being deprived of what belonged to him (damnum emergens) as well as any profits he may have lost (lucrum cessans), must also be restored to him.⁶

⁶ St. Alphonsus, Theol. Mor., l. III, n. 614–625 (ed. Gaudé, II, 94 sqq.); Gury, Comp. Theol. Mor., I, n. 622–627.

A difficulty arises if the property has fluctuated in value while in the hands of the unlawful possessor. A change in the value of an object may be either intrinsic or extrinsic. An intrinsic change occurs, for instance, in a colt that grows up to be a horse, or in a horse that becomes useless in consequence of old age. An extrinsic change of value may be brought about through a rise or drop in the market. As regards intrinsic changes, the unlawful possessor has to make restitution to the owner for any decrease in value which would not have happened had the owner kept his property, as, for example, if a fat ox grows lean or a good horse is overworked. If the value of the object has increased, the unlawful holder must restore the increment together with the object to the rightful owner, but may deduct necessary or useful ex- penses.

In regard to a change in value the following general rules apply:

a) If the price has risen or fallen, and the thief sold or consumed the stolen property at the time when the lawful owner had intended to sell or consume it, he must restore to the latter the price which the object would have brought at that time. If the price has risen or fallen, and it is certain that the owner would have sold or consumed the property had it been in his possession at the time it fetched the higher price, restitution must be made at the higher price. If the object was one which the lawful owner had not intended to keep, and its price rose and fell, and the unlawful possessor sold or used the object when the price was lowest, he is obliged to make restitution at the lower price only, for in that case the owner suffers no loss and he himself was not enriched by the fluctuation in price. If the owner would have sold the property in case the illegal possessor had restored it at a time when its price was high, the latter is in duty bound to pay the higher price. If the owner would have consumed the object at the time when the price was low, and the thief, or his abettor, sold or consumed it at the time when the price was high, he must make restitution at the higher price, for “res fructificat domino.” However, some moralists are satisfied with demanding that restitution be made at the lower price, for the reason that the thief, having consumed the stolen property, has not become enriched and the owner has suffered no additional loss. When there is doubt whether the owner would have kept his property until he could have gotten a higher price or would have sold it at a lower price, the thief is bound to make restitution pro rata dubii, i. e., in accordance with the degree of doubt. But since, in praxi, all the circumstances of a case do not usually become known, it will be sufficient as a rule to make restitution of the stolen object at the price which it would have fetched at the time when it was stolen.⁷

⁷ Göpfert, Moraltheol., Vol. II, pp. 265 sqq.; Slater, I, 406 sqq.

2. A possessor bonae fidei is he who is honestly, though erroneously, convinced that an object rightfully belongs to him, e. g., because he has acquired title to it in a legitimate way, for instance, by purchase, inheritance, etc. As soon as he discovers that the property is not his, such a one is bound to restore it to the rightful owner, or at least give the owner notice to get it, at his own expense.⁸

⁸ Gury, Comp. Theol. Mor., I, n. 611: “A possessor in good faith is one who is invincibly ignorant that the thing possessed by him belongs to another, or prudently judges it to be his own, v. g., because he acquired it by a title of itself transferring ownership, such as inheritance, legacy, donation, or purchase. It is supposed, however, that he has not yet acquired the possessed thing by prescription; for otherwise he would no longer be the holder of another’s property, but of his own. As soon as a possessor in good faith learns that the thing possessed by him belongs to another, he is bound to restore it to the owner insofar as it still exists, in whole or in part or in profit. The reason is that unless such a possessor restored the thing or its equivalent, he would retain another’s good against the owner’s reasonable will; for he would violate the owner’s strict right by retaining that to which he has no right, and therefore would now become an unjust holder.”—Cfr. ibid., n. 612–621.—Lehmkuhl, Casus Consc., Vol. I, n. 648–651.

a) He must restore, first, the property itself, if, or in as far as, it still exists, for “res clamat domino.” If the property no longer exists, he must restore what he gained by its possession, on the principle that no one has a right to enrich himself at the expense of another.⁹ If the stolen property has been lost, either through or without the possessor’s fault, the latter need not restore its equivalent, because “res naturaliter perit domino” or “casum sentit dominus.” Likewise, in case of doubt whether he has be- come richer through possessing the property, or whether some portion of it is still in existence, the unjust possessor is not obliged to make restitution, for, “in dubio melior est conditio possidentis.”

⁹ Reg. Iur. in VI° Decr. Bonif. VIII, n. 48: “No one ought to be enriched through another’s injury or loss.”

b) He must restore, secondly, all the fruits of the stolen property, in so far as they are derived from its nature (fructus naturales) and have not been consumed to satisfy his own needs, for “res fructificat domino.” The fructus industriales belong to the possessor and the fructus mixti must be divided pro rata, but the possessor may deduct expenses and make a reasonable charge for his toil. Unnecessary and accidental expenses give no just claim for compensation. If the civil law grants to the possessor bonae fidei the consumed fruits, he may take advantage of this privilege.

c) If one finds that he is in possession of something that rightfully belongs to another, and to which he himself holds a legal title, he may fall back on the person from whom he has acquired the property, but he cannot make the restitution of the object to its rightful owner dependent on his own indemnification. Generally speaking, however, one who has purchased a property from another in good faith and according to the requirements of the law (optimâ formâ), may await a court decision before he is bound to make restitution.

3. One who has well-grounded reasons for believing that something he has in his possession belongs to another, is a possessor dubiae fidei and as such strictly bound to ascertain whether or not he is the rightful owner of the property. If he neglects to make an investigation, he becomes a possessor in bad faith. One who has been in the possession of stolen property in good faith for a while, and then becomes doubtful of his title, remains in good faith until the doubt is solved (“in dubio melior est conditio possidentis”); he may use the property according to his good pleasure and, in case the real owner is discovered, need restore only such portions of the property as still remain, or the sum by which he has become richer in consequence of its possession. If the doubt as to the real owner dates from the time when the property was acquired, a distinction must be made. If the object has come to the possessor directly out of the hands of the lawful owner (e. g., by occult compensation), it must, if the doubt persists, be restored to the latter whole and entire, for the possessor has no real title and the presumption is against him. But if he has acquired the object in question by some legitimate title (for instance, purchase, inheritance, do- nation), and the doubt merely concerns the right of the former possessor to dispose of it, the present possessor must, according to the greater or smaller probability of the existing doubt, restore a larger or smaller portion of the property to its rightful owner, or, if his identity is unknown, to the poor. The reason is because doubt does not permit of a real ius possessionis and therefore imposes the duty of restitution, while, on the other hand, the lawful title of ownership supplies the defect, as it were, and restitution need consequently be made only pro qualitate dubii. Negative doubts do not impair the good faith of the possessor and should be treated like temptations.¹⁰

¹⁰ Gury, I, n. 628–630; Lönartz, Die Restitutionspflicht, pp. 226 sqq.; Lehmkuhl, Casus Consc., Vol. I, 3rd ed., n. 656–659; Slater, A Manual of Moral Theology, Vol. I, pp. 406 sq.

READINGS.—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 1–8.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 22 sqq., 389 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 547 (ed. Gaudé, II, 52 sqq.).—J. E. Pruner, Lehre vom Recht, Vol. II, pp. 5 sqq.—J. Schwane, Die Gerechtigkeit, pp. 85 sqq.—F. X. Linsenmann, Lehrbuch der Moraltheol., pp. 596 sqq.—A. Vermeersch, S.J., Quaestiones de Iustitia, 2nd ed., pp. 161 sqq.—Kutschker, Die Lehre vom Schadenersatz, pp. 3 sqq.—P. J. Lönartz, Die Restitutionspflicht des Besitzers fremden Gutes, Treves 1885, pp. 1 sqq.—F. Lorinser, Die Lehre von der Verwaltung des hl. Buszsakramentes, 2nd ed., 1883, pp. 233 sqq.—T. Slater, S.J., Manual of Mor. Theol., Vol. I, pp. 400–407.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 463–477.—M. Cronin, The Science of Ethics, Vol. II, pp. 377–380.