Article IV: On the Place Where Restitution Must Be Made

329. The general principle is: Restitution is to be made in the place where the rights of the creditor are preserved, without graver inconvenience of the debtor. Whence:

1. A possessor of good faith must restore the thing in the place of possession, where it is at the moment at which he knows it to be another's; therefore it suffices that he make the owner more certain concerning the thing to be received by him, and he is not bound to undergo the expenses or perils of transmission: for an innocent person is not bound to suffer detriment from another's thing.

2. A possessor of bad faith or an unjust damager from delict must at his own expense restore the thing in the place where the owner would have possessed it, if it had not been taken away, yet deducting the expenses, if there are any, which the owner also himself would have made by carrying it away: for as damager he is bound to repair the whole damage which the owner has suffered.

If, however, the thing taken away could not be transmitted without great expenses, which greatly exceed the value of the thing, probably it would suffice to send the price, unless the thing were most dear to the owner.

330. What if a thing perishes by chance or by the fault of a third party before it has reached the owner?

R. The possessor of good faith is bound to nothing, because the thing perishes for the owner. But a possessor of bad faith or an unjust damager is not freed from the obligation, even if he follows the way prescribed in law, but again must take care that the owner be rendered indemnified; unless the owner has determined the mode of transmission, as if he himself or a judge has designated a messenger to whom the thing is to be entrusted: for then as soon as it has been handed over to the messenger it comes into the possession of the creditor, and if it perishes, it perishes for him.

331. On restitution by the help of a confessor. - Many moderns judge that he is immune from restitution who has handed over to a confessor money to be restored, in whose possession it perishes by chance or the fault of a third party. This indeed is not according to the rigor of principles, because a confessor per se is not a messenger designated by the creditor. Yet perhaps not improbably it can be judged thus, because the confessor, from the presumed consent of the creditor, can be held as a messenger, since often restitution cannot safely be made by another way without danger of infamy, and otherwise by office he is a messenger worthy of faith. Whence in practice, he who restores thus is not to be disquieted. Yet it will be better if the confessor asks condonation, which in the case he will obtain without so great difficulty.