§ III. On the Possessor of Doubtful Faith

A possessor of doubtful faith is he to whom a positive doubt arises whether the thing which he accepts or possesses is his own or another's.

739. Principles. - I. A possessor of doubtful faith, whether he has doubted from the beginning or only in the course of possession, is bound to inquire seriously, so that he may lay aside the doubt. The reason is clear; otherwise he exposes himself to danger of retaining another's thing from his own culpable negligence.

II. If, after diligent inquiry has 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 cause, or doubt, the condition of the possessor is better; and possession begun with good faith creates of itself the greatest presumption concerning the justice of the possession, and gives 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. - S. Alph.,² Lugo,³ Lacroix,⁴ Carriere,⁵ and others commonly, against some who say that the thing must be divided according to the proportion of the doubt.

III. If doubt preceded possession, a distinction must be made. For one who began to possess in doubt by despoiling another of his possession is bound to restore the whole thing to the prior possessor when it is not established that this man began to possess the thing in bad faith; because in an equal cause his condition is better, as being that of the possessor. - Lugo,¹ Carriere.²

But one who received the thing by another title, for example of purchase, and after diligent examination still doubts whether he from whom he received it is its owner, must restore, according to the proportion 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 from elsewhere does it seem equitable that he be bound to restore the whole, since there is doubt whether the thing is another's. - S. Alph.,³ Lugo.⁴

740. Questions. - Query 1° To what is he bound who accepted some thing in bad faith, thinking it was another's, and afterward doubts whether the thing is his or not?

Resp. He is to be equated to him who began possession with doubtful faith; for the prior false estimation is found, and therefore 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.

Query 2° What if such a possessor neglected to inquire from the beginning, and afterward the owner of the thing can no longer be found?

Resp. More truly, something must be restored to the poor according to the proportion of the hope which the owner could have had of recovering his thing. Generally that hope does not reach half the price, but is of much lesser value.⁵ - Lugo, Lacroix.⁶

741. • Query 3° To what is a possessor of doubtful faith bound 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 bound not only to return the thing to the owner, but also to repair all damages to him. - Carriere.⁷

He seems to be excepted who began possession in good faith and afterward, when doubt arose, neglected to inquire, thinking that the owner could be found only with greater difficulty; for he would be equated to a possessor of good faith.

742. • Query 4° To what is he bound who occupied a thing possessed even by an uncertain owner, as he knew; likewise he who first occupied a thing while doubting whether it had been abandoned by the owner?

Resp. to the 1st. The thing must be divided equally with the probable owner; for possession favors neither one. Cf. n. 60. 3°.

Resp. to the 2nd. If, after inquiry has been made, no earlier owner of the thing, not even probable, can be detected, he can have the thing as truly abandoned by the owner, and then, after doubt has been laid aside, acquire it for himself by legitimate occupation in good faith.¹

Query 5° Is a possessor of doubtful faith who began to possess in good faith bound to restitution if, after inquiry has 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. Moreover, until another proves his certain right, the axiom is valid: The condition of the possessor is better. But the other can prove a certain right, that is, one morally such, only by most probable reasons.²

Query 6° Is a debtor, in doubt concerning the completed payment of a debt, bound to pay integrally or in part?

Resp. See n. 803.

743. Resolutions. - 1° If you have possessed another's thing in good faith, and, when doubt supervened and remained after inquiry, relying upon the principle of possession you consumed it, but afterward the owner unexpectedly appears, you will be bound to restore only that in which you have been made richer.³

Note. - 1) As long as it remains morally possible that a certain owner may afterward appear, the aforesaid possessor ought to be so disposed in mind that, if afterward before the time of prescription the owner is certainly detected, he restore the thing to him, or if he has consumed or alienated it, its price, and this even if he has not been made richer. Thus Lugo⁴ against some. 2) The same possessor ought, if he sells the thing, to warn the buyer concerning the existing doubt and the danger of eviction.⁵

2° They are not to be exempted from restitution who buy things from thieves or fraudulent bankrupts while doubting concerning the legitimate possession of these things, and purposely inquire nothing lest they have certitude of fraud; for these act not with doubtful faith but with bad faith, since affected ignorance is equated to knowledge. Mar. p. 260. n. 47. III.

3° "Croix notes, l. 3. p. 2. n. 562, with Vasq., Laym., Pal., Sanch., Mol., etc., and Roncaglia thinks it not improbable, ... that when a possessor (even one who began to possess with doubt) has had the thing from a possessor of good faith, if afterward diligence becomes impossible, he is bound to restore nothing; for he then legitimately succeeds into all the right of that man." S. Alph. L. I. n. 57. Notat II.