§ 3. ON THE POSSESSOR OF DOUBTFUL FAITH

944. NOTION. A possessor of doubtful faith is he who positively, because of probable reasons, doubts whether the thing which he accepts or possesses is his or another's (I, n. 37).

PRINCIPLES. I. Every possessor of doubtful faith is held seriously to inquire, so that thus he may lay aside his doubt. The reason is that, if he contemns a doubt of this kind, he exposes himself to the danger of retaining another's thing and of frustrating another at least of the hope of ownership.

Otherwise, if the reasons are slight; because these cannot weaken the moral certitude which possession itself begets (cf. n. 44).

II. While the inquiry is being made, the possessor of doubtful faith cannot abuse the thing as proprietor; nor can he alienate it, unless he has forewarned the new possessor of the existing doubt. But he can accept it, not with the intention of retaining it, as is clear, but with the intention of restoring it to the owner if, after diligent inquiry, the latter appears (Bouvier, de Jure, P. II, c. 2, a. 1, § 3).

But because doubt can arise when possession itself begins, or when possession has already begun, two things come to be discussed as regards restitution itself.

945. 1. He who in doubt has begun to possess, disturbing another from his possession, for example by taking away from the possessor a litigated thing, is held to restore the whole thing to him, unless it is established that he began possession with bad faith. For in doubt the condition of the possessor is better (Lugo, disp. 17, n. 80).

2. He who has accepted a thing with a title of itself legitimate, for example of donation or purchase, but with doubt whether it is another's and possessed in good faith by the predecessor, if after inquiry he remains wavering, is held to restore, in proportion to the doubt, to the probable owner, if he is known; or to the poor, if the owner is unknown.

The reason is that, on the one hand, possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole thing for himself; on the other hand, it does not seem equitable that he be obligated to restore the whole, since it is doubtful whether the thing is another's (III, 625). - Civil laws and the consensus of all cannot be invoked here so that possession of fact may become useful for such a possessor; for from the beginning positive good faith was lacking.

3. If none of the litigants in fact possesses the thing itself, and the doubt is equal, the thing, or its price, is to be divided equally between them. But if the doubt is unequal, it seems it must be divided according to the proportion of the doubt (Lacroix, l. 3, P. 2, n. 566).

Notice: 1. He who has accepted a thing or right, for example an inheritance, from a possessor of good faith, and has begun to possess with doubt, can protect himself by the right of his predecessor and conduct himself as if he were a possessor of good faith to whom doubt has supervened. - 2. He who doubts negatively whether his predecessor was in good faith can use the axiom: "No one is presumed evil unless he is proved so." - Otherwise, if he has found him in bad faith and doubts whether he began his possession with such a disposition of soul; because "once evil, he is always presumed to be evil," according to the 8th Rule of Law in the Sext (I, 36, 37). Recall the things said in n. 895.

946. 1. A possessor of good faith, to whom a doubt arises concerning a possessed thing from a probable motive, for a slight motive is to be contemned, if, due diligence having been used, he recognizes that the thing is another's, is held to restore it, together with that in which he has become richer, as a possessor of good faith.

2. If the doubt perseveres equal on both sides, or if the possessor has for himself a probable opinion and against himself a more probable one; or for himself mere possession, and against himself an opinion only probable: he can still retain the thing for himself until it has not been morally established, that is, by a proof overcoming the presumption of possession, that the thing is another's. - The reason is that as soon as the possession itself is certain and legitimate, that possession, although alone, by itself begets a certain presumption concerning the justice of possession, which outweighs all non-convincing reasons and yields only to truth (I, 35, 36). Cf. the things said in n. 45.

3. A possessor of another's thing who, after doubt has arisen, culpably has neglected to inquire, is held, if afterward the presumed true owner of the thing can no longer be found, to restore something, either to the presumed owner or to the poor, if the owner is uncertain. The reason is that "since he himself culpably deprived the owner of the hope which the owner could have had toward the thing, and that hope was indeed estimable by price, now certain damage has been inflicted on the owner, who also certainly possessed that hope." Thus the truer opinion, which St. Alphonsus defends (I, 37) against Tamburini (cf. Lehmkuhl, I, 1144).

Nevertheless restitution is not to be made in proportion to the doubt, but less and perhaps very much less; because the detainer of the thing is in a better condition, on account of the right of possession which favored him and still favors him; for possession of the thing is valued much more highly than possession of the hope.

Note. In one case the opinion of Tamburini perhaps could be sustained: if namely the possessor of another's thing doubts only in an indeterminate way whether the thing is another's. Cf. Genicot, I, 534, v. fin.

947. On doubtful payment. To what is a debtor held if he seriously doubts concerning payment having been made?

Resp. There are three opinions. The first opinion says that such a debtor is no longer held to payment, provided he himself did not culpably cause the uncertainty. Thus among the more recent authors, Waffelaert, Genicot, Noldin. Their reason is that, on the one hand, the debt here and now is uncertain, and on the other hand, no one is to be despoiled of his own thing unless the debt is established. - The second opinion judges that all things are to be arranged in proportion to the doubt. Marres, Ballerini, Lehmkuhl defend it. Lehmkuhl (I, 1147) explains the reason of this opinion thus: the value of that debt is in the peaceful possession of neither, neither of creditor nor of debtor, but is a thing concerning whose possession and property each contends with the other; hence, in proportion to the doubt, it is to be divided between the litigants. - Finally, the third opinion, which is that of St. Alphonsus (I, 34; H. Ap., I, 20), affirms that a debtor who truly doubts whether he has paid must pay the whole. Cf. also III, 700; H. Ap., X, 120. Lugo, Suarez, Vasquez, Sanchez, and others teach this opinion. The reason: the creditor, who is in possession of his credit, has a certain right to recover the whole. If the debtor, who doubts about payment, refuses to pay, he always exposes himself to the danger of injuring the creditor's certain and earlier right; which cannot be done, as we said in n. 84. For in doubts of a perilous fact, the safer thing must be followed, although our liberty is in some way restricted.

We said: 1. Who truly doubts. For the debtor would not be held to paying if, from things ordinarily or contingently by law occurring, he believes with moral certitude that payment has been made. Presumption will greatly assist here in practice.

2. He must pay the whole, namely in the case in which he alone doubted. But if the creditor himself also doubted concerning his right, the debtor would be held only to a part, in proportion to the doubt, because possession on each side is weak. "Nevertheless Laymann adds that he would not dare to condemn the creditor if he received the whole" (I, 34).

Note. The reason adduced by the holy Doctor is directed against the two contrary opinions, which for this reason are rejected by us. The first opinion especially does not appear safe. Lehmkuhl (l. c.) rightly says: "There are some who, in the case of doubtful payment, dispense from every further obligation; - which cannot be sustained by solid reason."