Article II: On Detention of a Thing Received

S. Thom. II-II, q. 62, a. 6.

298. The second title of restitution is another's thing received (bezitting). — By this title the possessor who detains another's thing is bound to restitution, whether in itself, or in an equivalent, insofar as he has been made richer from it, as if he has the price of the thing or its fruits, or insofar as he has spared his own things, as if by consuming another's thing he preserved his own which otherwise he would have consumed. He must restore it from the moment when he knows it to be another's thing, and that the other justly claims his own thing: for if it were not rendered at its time, it would already be an unjust taking. This is established from the axioms: the thing cries out for its owner, and right reason dictates that no one can become rich from another's thing (n. 160).

Before he knows this, that the thing is another's and to be restored, he is a possessor of good faith and inculpable, and is bound to restore by the sole title of the thing received or possession; after he knows this, if he retains the thing, he is culpable and a possessor of bad faith, and now by a twofold title he is bound to restore, namely, of the thing received and of unjust taking (as will be said in the following article); but if he doubts, he is a possessor of doubtful faith.

At present we shall speak of the possessor of good faith, who, namely, while detaining another's thing, inculpably thinks it is his own.

299. The general principle is that a possessor of good faith is bound to restitution:

1. as often as he is conscious that he here and now detains another's thing without legitimate cause: the thing cries out for its owner;

2. as often as he has been made richer from another's thing: the thing bears fruit for its owner, and no one can become richer from another's thing.

For, as St. Thomas says, a. 6: "That which he has beyond what is his ought to be taken away from him and given to him who lacks it, according to the form of commutative justice."

For declaring this we shall successively consider the possessor as to the thing itself, as to the fruits of the thing, and as to expenses.

A. As to the thing itself. 1) A possessor of good faith, as long as he remains in good faith, can use another's thing as his own; and when the time required for prescription has elapsed, he becomes owner, if the other conditions are present.

2. When he discovers that the thing belongs to another, he is bound to preserve it and as soon as possible to offer it to the owner, or at least to warn him that he should take it away at his own expense; otherwise he would become a possessor of bad faith. For the thing cries out for its owner. But if he bought the thing, he will be able to recover the price from the seller, but not demand it from the owner before he renders the thing, unless civil law determines otherwise.

3. If, during good faith, another's thing has perished or been consumed or lost, he is bound to nothing: not by the title of unjust taking, which did not exist because of good faith; not by the title of the thing received, which no longer exists. For the thing perishes to its owner; unless, however, the possessor was certainly made richer from it, for example, if he had the price of the thing, such as he received from sale (a. 1380), or if he gave or consumed the thing when otherwise he would have given or consumed from his own: for then the thing exists in an equivalent.

4. If he possesses the thing not entirely but only in part, he must restore the part which he has; if the thing was made worse even from his fault, it suffices to restore it as it now is, unless he acquired a gain from it; if it was made better, expenses being deducted.

B. As to fruits. 1) Personal fruits, not indeed fruits of the thing but of mere industry, which, namely, were acquired on the occasion of the thing solely or principally by the possessor's own labor, are not to be restored, because the fruits of labor are proper to each person.

2. Fruits of the thing, whether natural, industrial (or mixed), or civil, provided they exist in themselves or in an equivalent and have not been legitimately prescribed, must be restored, with expenses deducted, however, which were necessary for gathering, producing, or preserving them.

3. Nevertheless, by French civil law, which has been adopted in almost all regions,¹ the possessor of good faith makes his own all fruits already perceived during good faith, or while ignorance has not yet ceased, even those still existing (a. 549 and 138), namely, if they have been separated from the thing, as to natural and industrial fruits, and as to civil fruits, if they have occurred. This law is just, as one passed for the common good, so that many lawsuits and inextricable difficulties may be avoided, and the possessor not suffer great damage from unexpected restitution, but each person may securely determine his expenses according to his revenues. For this, however, good faith of conscience is not sufficient, but juridical good faith is also required, namely, resting on a title transferring property whose defects are unknown (a. 550); if this is not present, civil law does not intervene, and then one must stand by natural law alone, as was said under 2.

¹ It holds in Belgium, Italy (a. 703), Spain (a. 451), Austria (a. 330), the Netherlands (a. 604), Switzerland (a. 938); by German law, if a possessor of good faith acquired the thing by a gratuitous title, he is bound to render the fruits, otherwise not (a. 988 and 2020).

Hence a) he who in good faith, by trading with another's money, for example, of a deposit, acquired great riches, is not bound to restore these to the owner, as being fruits of industry alone, but only the usual interest, which is a civil fruit;

b) likewise, he who made an artistic painting with another's brush and colors is not bound to yield it to him, but only compensation for the use of another's material;

c) he who is compelled to restore to the owner industrial or mixed fruits of the thing can demand compensation for expenses and labor, which is to be determined according to the estimation of a prudent man; or on the contrary, after this compensation has been deducted, he can pay to the owner the price of the fruits: thus, for example, if he gathers crops, with the usual price for the lease of the fields paid;

d) he who in good faith bought a stolen thing at a cheaper price and sold it at a dearer price can consider the increase as a fruit of industry alone if it can be attributed to labor and skill; on the contrary, as a natural fruit of the thing, if it proceeds from the thing itself, for example, if a calf grows or grain becomes dearer because of the market price.

C. As to expenses. Besides usufructuary expenses necessary for perceiving the fruits, which must be paid by the owner if he obtains the fruits (a. 548), the possessor of good faith can deduct:

1. necessary expenses without which the thing would have perished or been made worse, such as repairs made to a roof or the food of animals: for the owner himself also would have had to make these;

2. likewise useful expenses which render the thing better and increase its value, such as plantations and constructions, at least insofar as they do not exceed the increase of value; otherwise the owner would become rich from another's thing;

3. not, however, merely pleasurable expenses which are made for the sake of ornament or pleasure, without the value of the thing being increased: such as paintings, statues, fountains, etc., generally are; nevertheless he can take these away, if this can be done without detriment to the thing (a. 1381, and 1634, and 555).

300. What if another's thing has passed successively from one person to another or to several?

A. If this happens by an onerous title and:

1. there is place for eviction, so that the owner can demand the thing from the holder without recompensation, and the latter has no means of defending himself: this last holder is bound to render it to the owner; but he has recourse against others, namely, against the seller, and he against the one from whom he bought, and so afterward, until one arrives at the first unjust holder; — unless, however, the holder restored spontaneously to the owner, without consulting the seller, and thus was the cause that the seller could not defend himself from eviction (a. 1640 French, a. 1497 Italian);

2. if there is no place for eviction, because, namely, the owner cannot obtain his own thing at all (for example, when it has been consumed, the possessor has disappeared, or by civil law he cannot obtain it unless by paying the price²): the first seller is bound to refund to the owner the price of the thing insofar as he has been made richer from it, because this is the equivalent of the thing; but the other possessors are bound to nothing, because they were neither made richer nor inflicted damage. And the same seems to be said if the thing perished for the buyer, because by buying he took this danger upon himself,³ and the seller is considered to have conducted the business of the true owner. Some, however, say that in this case the price can be kept by the seller and that this is to be attributed to good fortune; and others say the same in the case in which the thing has been consumed, or the possessor disappeared; but this does not seem equitable nor just. No one ought to be enriched from another's thing with loss to him.

² From French law, which present-day laws have generally imitated, the owner must refund the price if the holder bought a movable thing at a market, public sale, or from a merchant selling things of the same species (a. 2080); by German law a possessor of good faith acquires dominion of property even in certain things taken by theft, namely money, monetary titles, and all things bought in public auction; but not in other stolen things (a. 985).

³ Unless it perished from a redhibitory defect: then the price would have to be restored to the buyer, because the sale would be null.

B. If by a gratuitous title a thing was transmitted from one to another, for example, by donation or succession, previous possessors who in good faith gave another's thing are bound to nothing, since they were not made richer from another's thing (unless otherwise they would have given from their own), but the last possessor must restore either the thing, if it exists, or that from which he has been made richer if he spared his own, unless the thing was legitimately prescribed.

C. If first by an onerous title and then by a gratuitous title, as if someone gives a thing of another which he had bought, he is bound to nothing, even if otherwise he would have given his own thing, because he is not richer; nor is the donee bound, because he succeeds to the rights of the buyer: then the first seller must furnish restitution.

This can also be proposed in this way:

A. Another's thing: 1) if someone received it gratuitously and gave it away, he is not bound to restore, unless otherwise he would have given from his own; but the last possessor is bound to restore;

2. if he afterward sold a thing received gratuitously, he is bound to restore the price, and indeed to the owner, if the latter paid the price to the buyer in order to recover it, or if he cannot have it or it has been consumed; — on the contrary, to the buyer, if the owner does not pay him the price, or if the thing perished by an intrinsic redhibitory defect.

B. A thing of another bought or received by another onerous title:

1. if someone sold it, he is not bound to restore the price, unless he is compelled to this by a judge, in which case he has recourse against him from whom he bought. But if he obtained a greater price, this can be considered as a fruit of industry, unless, however, it greatly increased from extrinsic circumstances, because then it would come to the owner;

2. if he afterward gave away gratuitously a thing bought, he is in no way bound to restitution.

In both cases the first seller is bound to restore.

301. Is a thing licitly returned to a thief, if this is necessary for recovering the price?

Resp. 1) If the owner demands his own thing before it is returned to the thief, the buyer is bound to restore it, for the thing cries out for its owner; unless, however, it has been otherwise determined by civil law.

2. If the thing bought has not yet been handed over by the thief, the buyer can rescind the contract and leave the thing to the thief. For he does not yet detain the good, and therefore he is not bound to take care of it.

3. If the owner has not yet demanded his own thing, according to some it must be restored to the owner, not to the thief, because the thing cries out for its owner; according to others, however, it can probably be returned to the thief, if the price can be recovered only with difficulty, because the contract can be rescinded and no one ought to harm himself that he may profit another; nevertheless, then the buyer is bound to warn the owner, and indeed, as it seems, from justice, insofar as each person is bound to impede that unjust damage be caused to another from his own action.

4. If the thief does not wish to rescind the contract and return the price, the buyer cannot consume the thing or sell it to another, because he cannot use another's thing; but he is bound to restore it to the owner, even if he is going to receive no compensation from him, or is going to undergo loss of money, because the thing cries out for its owner. Nevertheless he has recourse against the thief.