§ 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, or prudently judges that it is his own, for example because he acquired it by a title of itself transferring dominion, suppose inheritance, legacy, donation, or purchase. But it is supposed that he has not yet prescribed the thing possessed; for otherwise he would no longer be the holder of another's thing, but of his own.

722. Principles. - I. A possessor of good faith, as soon as he knows that the thing possessed by him is another's, is bound to restore it to the owner, still existing in whole or in part or in its advantage; otherwise he retains another's good while the owner is reasonably unwilling, and therefore violates his strict right. - Thus all.

II. A possessor of good faith is bound to absolutely nothing, if, while good faith endures, he consumes, loses, or even destroys another's thing, provided he has not become richer from it. For he is not bound by reason of the thing received, which no longer exists; nor by reason of unjust acceptance, consumption, or destruction, because he possessed the thing in good faith. This is valid also if he deliberately destroyed the thing, or if it perished from his negligence. The reason is that he inflicted injury upon no one by destroying or neglecting the thing which he believed to be his own. It is confirmed also by positive law. For thus by Roman Law: "He who neglected as if his own thing is subject to no complaint."

I said: provided he has not become richer from it; because that in which he was made richer would succeed in the place of the thing. But it is against natural right that someone be enriched with the injury of another, according to rule 48 of Law in the Sixth. - In doubt whether he has become richer, he is bound to nothing. L. IV. 603; H. A. Tr. X. 55.

723. Questions. - Query 1° Is a possessor of good faith bound to restore the fruits which he perceived during good faith?

Resp. The fruits must be distinguished. For 1° some are natural, which by the benefit of nature come from a thing without any estimable work of man, as grasses, etc. 2° Others are industrial, having arisen from man's work without any estimable productive concurrence of the thing. 3° Others are mixed, or partly natural and partly industrial, as crops. 4° Others are civil, which are not fruits properly so called, but are held as such by Law through a certain analogy with true fruits, as the price of leasing a house.

I say: 1° A possessor of good faith is not bound to restore merely industrial fruits (under which probably also interest by occasion of a loan is included. L. IV. 759), since by reason of industry they belong to the possessor.

I say: 2° From natural right a possessor of good faith must restore all other fruits, whether natural or civil, still existing, and, insofar as he has been made richer from them, even those consumed, expenses and labors nevertheless being deducted. The reason is that from natural right fruits belong to him to whom the fruitful cause itself belongs, since they come from the thing itself, according to the axiom: The thing fructifies for the owner. (g) p. 481.

724. • Query 2° To what is a possessor of good faith bound if he has given another's thing to another?

Resp. He is bound to nothing if he has not been made richer at all, as follows from the things said above in principle II. Otherwise he must restore that in which he has been made richer, as is established from principle I.

Query 3° Once the donation has been made and the error detected, is he bound to warn the donee, that he restore the thing to the owner, or the owner himself, that he may be able to recover his thing?

Resp. He is certainly bound from the general principle of charity, if he can furnish this without grave damage to himself.¹ Whether also by reason of justice? There are those who affirm it on account of the obligation which the author of even merely material injustice incurs. See n. 749. q. 3°.

725. • Query 4° To what is a possessor of good faith bound if he has sold to another a thing bought from a thief?

Resp. 1° In the case of eviction, that is, if the owner has vindicated his thing from the buyer (n. 988), the seller is bound to return the price to the buyer. The reason is that the sale is altogether void from natural right. Therefore, when eviction intervenes, the contract must be resolved, and the buyer acquires recourse by the fact itself against the seller; for by handing the thing over to the buyer he implicitly obligated himself to repair the damage, if perhaps eviction would be future. Except: 1) If the seller has not been made richer from the price (in the sense to be declared below n. 989). 2) If the profit which he perceived by selling is the fruit of industry. 3) If in good faith it was expressly agreed concerning not restoring the price.² - The same must be said if another's thing has passed into the hands of various possessors by an onerous title. For if the last possessor is compelled to return the thing to the owner, both he and the individual buyers have the right of pursuing their seller, so that they may recover the price paid. - Yet this is not valid, that is, the seller, in no respect made richer from it, is not bound to restore the price to the buyer if the buyer spontaneously, or not evicted, restores the thing to the owner and thus impedes the seller from being able to recover his price.¹

Resp. 2° Outside the case of eviction the seller is bound to nothing 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 altogether void. For although through it dominion of the thing is not transferred to the buyer, dominion of the price is nevertheless transferred to the seller. And this man indeed, even if later he detects that the thing sold is another's, in the case in which he can no longer recover the price for which he bought the thing, is not bound, with grave damage to himself, either to warn the owner so that he may be able to recover his thing, or to indicate to the buyer that the thing is another's. The reason is that he no longer has the thing, nor was he the formal cause that the owner was deprived of his thing.² Cf. what was said n. 724. q. 3°.

726. • Query 5° To what is a possessor of good faith bound if he has sold to another a thing received gratuitously?

Resp. 1° In the case of eviction the same resolution is valid which was given in the preceding case, n. 725. Resp. 1°.

Resp. 2° Outside the case of eviction, when namely the thing cannot be recovered by the owner, whether because the last possessor consumed it, or because he no longer appears, the seller, according to the common opinion, must pour back to the owner the whole price received from the buyer, if and insofar as he has been made richer from it. The reason is that one truly made richer from the price suffers no 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 man must be preserved harmless from the profit which the seller perceived without any title.³

727. • Query 6° If someone in good faith bought another's thing at a moderate price and sold it at a greater price, is he bound to return the profit perceived to the owner?

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

Affirmatively, on the contrary, if the thing increased from its own 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° In other cases, however, it is controverted. Some affirm it, because the possessor has been made richer from that profit. - Billuart, etc.

But others deny it more commonly and more probably, because that whole profit seems to be the fruit of the possessor's industry. - Thus Lugo,¹ and others sufficiently commonly, as Billuart admits.

728. • Query 7° To what is a possessor of good faith bound if he has sold another's thing and it perished in the hands of the buyer?

Resp. 1° If he had the thing by an onerous title, more probably he is bound to nothing. For 1° he is not bound by reason of the thing, since he no longer has it; 2° nor by reason of damage, since he is not the culpable cause why the owner can no longer vindicate it for himself; for he bought and sold in good faith.

Resp. 2° If he had the thing by donation, it is controverted.

The 1st Opinion teaches that the price must be restored to the buyer. For the seller cannot keep it, positing that from it he has become richer. From elsewhere he is not bound to return it to the owner, because the thing perished for the owner. Moreover, if the first possessor was of bad faith, as often happens, he is bound concerning the value of the thing toward the owner. From elsewhere, however, unless by law the sale of another's thing was perhaps valid, the buyer has the right of recovering his money. - Bouvier, Carriere, etc.

The 2nd Opinion holds that the price, still existing in itself or in an equivalent, must be restored to the owner. The reason is that, since he has been unjustly despoiled of his thing, he must be made harmless. 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. Besides, 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 repeat nothing. Except if the thing would equally have perished with the owner, for example from an intrinsic defect; for then it would have perished for him.

The 3rd Opinion says that the seller can retain the price for himself, because he does not have to 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 received does not precisely represent the thing, but rather the obligation which he took upon himself of preserving the buyer harmless in the case of eviction. But the buyer was not evicted; therefore the seller can retain the price by reason of an abandoned thing. This opinion counts few patrons, and does not seem sufficiently probable. See S. Alph., L. IV. 609. under 5.

Since the 1st and 2nd opinions are equally probable, the seller can restore either to the owner or to the buyer. Except: 1) if the thing would equally have perished with the owner, for example from an intrinsic defect or from age; for then in reality it would have perished for him; 2) if the owner had already been preserved harmless by the thief or another possessor of bad faith. In each case the buyer alone would have right.

729. • Query 8° What must be done if among various possessors of good faith one of bad faith was present?

Resp. That circumstance changes in no respect the condition of the other possessors, whatever place in the series that possessor finally occupied. For the same obligation lies upon each one toward the owner as if that possessor had been of good faith, since his bad faith in no way redounds to the others. But that man must be treated as will soon be said concerning possessors of bad faith.

Query 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. Concerning this it must be established as concerning a thing found. - Recall what was said n. 655. 656.

730. • Query 10° Can a possessor of good faith subtract necessary expenses which he has undergone in conserving or increasing the thing?

Resp. He can deduct all necessary expenses; indeed also useful expenses, namely those which conserve the thing and make it better; otherwise the owner would receive more than what is his own. But not pleasurable expenses; because it is not equitable that the owner pay expenses which bring no utility to himself. Understand according to the things to be said n. 732. III.

But among expenses there are not to be computed fortuitous events, nor damages caused by accident. Thus, for example, if in cultivating another's field your horses have perished, the value of the horses cannot be deducted, but only the estimation of the work done by the horses for the cultivation of the field.

731. • Query 11° Can one who in good faith bought a stolen thing return it to the thief in order to recover the price?

Resp. 1° Negatively, if the owner appears asking from him his own thing; for then he must return it to him, even with the loss of his own price, because by natural right the owner can occupy his own thing wherever he finds it. Yet an action is given to the buyer against the thief. (h) p. 481.

Resp. 2° If the owner is indeed known, but unaware of the thing, the buyer, with another way of indemnification shut off to himself, can send the thing back to the thief, so that he may recover the money; both because the buyer is not bound to preserve the thing for the owner with his own damage, and because no one is forbidden an action which of itself is necessary and directed to repairing his own damage, although indirectly and by accident damage may come from it to another.¹

Resp. 3° If the thief, or another seller, does not appear, or does not wish to return the money, the buyer, the owner being known, cannot sell the thing to others, nor convert it to his own uses so that he may preserve himself harmless, 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. (h) p. 481.